VerticalScope’s Overreaching TOS

For over nine years, I have been a member of a site called Kboards.com. Many of you, in fact, may recall me directing folks to the site, particularly the Writer’s Café, for support and guidance on all things indie publishing. Over the years, the site has attracted some of the smartest, most successful indie authors in the industry. And I have always been happy to be a part of it.


Until now. In August, the site was sold to a company called VerticalScope. It was recently discovered that the new owners made significant changes to the site’s terms of service without notifying members.


Most of the new terms of service is your standard legalese nonsense. But buried deep in the terms are some clauses that would, frankly, make Facebook blush.

By posting/sending a message in any public electronic forum on the Web Site, you agree to have that message along with your name and/or user name posted for public viewing both here and in other promotional and advertising materials and on other VerticalScope Inc. web sites, without compensation.

This clause goes beyond the normal forum legalese by giving the owners the right to share messages posted on one forum on another site they own. Many forums request rights to share posts between sites, but such request normally require that you approve each site. For example, in order to use your Google account to log into some sites, you have to authorize the site with Google to link to your account. With this clause, it gives the owners the right to take things posted on one forum and, without asking, post them on another.

KBOARDS.COM does not undertake to necessarily post every submission. All messages that are posted here represent the opinions of the individuals or organizations posting those messages, and do not express the ideas or opinions of KBOARDS.COM or VerticalScope Inc. You may copy the posted messages for personal use, but redistribution in any way requires the written permission of KBOARDS.COM. In consideration of this authorization, you agree that any copy you make of any message(s) located on this web site shall retain all copyright and other proprietary notices contained therein.

This is a copyright grab. Copyright belongs to the person who created the post, not the site it was posted on. Instead of informing users that they need to permission of the poster, they are usurping that power for themselves. Per the letter of the clause, this would even include the original poster themselves needing permission to report their own comments on their personal blog!

You represent and warrant that: (i) you own the content posted by you on or through the Web Site or otherwise have the right to grant the license set forth below, and (ii) the Posting of your content does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person

You agree to grant to KBOARDS.COM a non exclusive, royalty free, worldwide, irrevocable, perpetual license to reproduce, distribute, transmit, sublicense, create derivative works of, publicly display, publish and perform any materials and other information you submit to any public areas, chat rooms, bulletin boards, newsgroups or forums of KBOARDS.COM or which you provide by email or any other means to KBOARDS.COM and in any media now known or hereafter developed.

This is standard legalese, but it continues…

Further, you grant to KBOARDS.COM the right to use your name and or user name in connection with the submitted materials and other information as well as in connection with all advertising, marketing and promotional material related thereto, together with use on any other VerticalScope Inc. web sites. You agree that you shall have no recourse against VerticalScope Inc. for any alleged or actual infringement or misappropriation of any proprietary right in your communications to KBOARDS.COM.

Now some people have come out and said this is “similar” to Facebook. But let’s take a look at the Facebook TOS:

Specifically, when you share, post, or upload content that is covered by intellectual property rights (like photos or videos) on or in connection with our Products, you grant us a non-exclusive, transferable, sub-licensable, royalty-free, and worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content (consistent with your privacy and application settings). This means, for example, that if you share a photo on Facebook, you give us permission to store, copy, and share it with others (again, consistent with your settings) such as service providers that support our service or other Facebook Products you use.

The FB TOS only requests the right to share your content as per your privacy settings. And…

Permission to use your name, profile picture, and information about your actions with ads and sponsored content: You give us permission to use your name and profile picture and information about actions you have taken on Facebook next to or in connection with ads, offers, and other sponsored content that we display across our Products, without any compensation to you. For example, we may show your friends that you are interested in an advertised event or have liked a Page created by a brand that has paid us to display its ads on Facebook. Ads like this can be seen only by people who have your permission to see the actions you’ve taken on Facebook. You can learn more about your ad settings and preferences.

While the FB TOS is “similar,” it makes an important distinction that it’s use is restricted to your choices. The new Kboards TOS makes no such distinction, effectively giving them the right to use not only your posts, but your name, likeness, and username for any commercial purpose across any site. The KBoards TOS excessively expands the company’s rights to user posts and names beyond what is needed to operate the site. And for a site that is filled with creatives who depend on the Intellectual Property for their livihoods, this is terrifying.


I have compiled a timeline for other members. I fear this situation will not be resolved easily and may require formal complaints being filed with government agencies. In that event, I hope this timeline will be useful for users.

Timeline:

On August 9, 2018, a notice was posted under the sub-forum Administrative Issues called “Changes.” In this topic, users received their first notification that the site had been sold to VerticalScope.

On September 12, 2018, a user started a thread in the Writers’ Café called “Has any one noticed the terms of service for KB lately?” This is the first notice most people had heard of a change in the terms of service since ownership changed. There was no official notice posted regarding a change to the Terms of Service. Nor was a notification sent to members to alert them to the change of service.

On September 14, 2018, vsAdmin (Phillip) posted to the thread effectively saying that there was nothing to worry about, but did not address specific concerns posted in the thread.

At that time, several members contacted VerticalScope directly to express concern about the issue. User ilamont on September 15, 2018 explicitly noted that they had reached out to VerticalScope to alert them to the concerns.

Also on September 15, 2018, moderator Becca Mills informs members that their accounts could be deleted by sending a PM to moderators.

On September 17, 2018, moderator Ann in Arlington reinforced that members could have their accounts deleted by sending a PM to moderators.

On September 18, 2018, moderator Ann in Arlington again noted that the moderators were honoring requests to delete accounts and posts.

Also on September 18, 2018, Becca Mills confirmed that vsAdmin (Phillip) had been in communication with the mod team. She said that he informed her that he was sending concerns to the legal department. vsAdmin himself never communicated any information to the members, however.

At the end of the day on September 18, 2018, I sent a PM to Becca Mills requesting my account deletion due to the reluctance of vsAdmin to address concerns directly and that, because I could not agree to the TOS, I needed my account deleted.

Meanwhile, at 7:22 PM EDT, Becca Mills posted again saying that vsAdmin was instructing mods to stop deleting accounts and to instead have members contact him via PM or email privacy@verticalscope.com. vsAdmin continued to avoid posting directly into the thread and chose to use Mods as his mouthpiece.

On September 19, 2018, user PhoenixS shared a response she had received regarding her deletion request.

We’ve received your request for your account to be deleted and the site admin has been so advised.
The site admin has advised us to inform members who wish their accounts deleted that the company has 30 days to resolve a GDPR grievance. Posted content needs to be verified of information and does not immediately fall under right to be forgotten. Questions concerning this policy should be directed to privacy@verticalscope.com
If this changes, and we are given the o.k., I will delete your account at that time.
Please also see Becca’s post here for other considerations.

The user explicitly noted that the request was not a GDPR grievance, but rather a response to the retroactive terms of service and the need to remove content in order to protect her rights. Again, it should be noted that vsAdmin has employed the unpaid moderators as the messengers for these matters instead of addressing members directly.

Also on September 19, 2018, Ann in Arlington shared vsAdmin’s response to a question asked regarding the requests to remove posts.

This is not how GDPR responses work. We, the company, have 30 days to resolve a GDPR grievance. Posted content needs to be verified of information and does not immediately fall under right to be forgotten. If users have issue with this they are to be directed to privacy@verticalscope.com

Again noting that vsAdmin did not address membership directly and is implying that users may not have the right to ask that posts be deleted.

I will update the timeline as new information becomes available.

Update One

On September 19, 2018, Someone identified as Helena, Director of Community Management, posted to the thread, leveled accusations of trolling and then said “So…let’s have a real conversation about this.” Much of her post also implied that Phillip never actually went to legal (“Now if you still want clarification about the TOS I can have my legal team answer some questions, so work together and put them into a single post that is easy to work and I can make that happen.)


The one rule that has always existed on KBoards was that “troll” was a four-letter word. It is the biggest insult leveled, and something the mods have religiously enforced. When other posters pointed out that this was an issue, her response was “Thanks for helping me prove it.”


She then suggested that people should talk to their lawyers, and when informed many people already had she said for us to have our lawyers call their lawyers.


THIS IS WHERE WE ARE AT!

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