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Article Dans Une Revue Journal of Peer Production Année : 2016

Alternative policies for alternative Internets

Résumé

Online services’ Terms of Use (ToU) or End-user Licence Agreements (EULA) are often unfair, abusive and hard to read for users. They are also difficult to draft for alternative projects willing to develop fair and clear policies for their contributors. This piece provides examples of original and alternative clauses, containing fair and unfair terms, addressing some of the most common issues faced by online platforms when developing their legal policies regarding ownership of user-generated content, protection of personal data, liability for third-party content, and other legal questions affecting users’ or consumers’ rights and their enforcement. While specific model clauses can’t be drafted to fit a plurality of activities without knowing the details of the platforms’ features and setting, projects and values, this piece provides guidelines and practical information to communities aiming for a wide-reaching, easy to understand licence, to empower informed choices prior to the definition of policies reflecting a variety of alternative politics that may be embraced by alternative internet platforms. Alternatives can be defined as the “range of (media) projects, intervention and networks that work against, or seek to develop different forms of, the dominant, expected (and broadly accepted) way of ‘doing’ (media)” (Atton, 2004). Commons-based and privacy-enhancing or peer-to-peer services, as alternative to commercial services where users relinquish most of their rights, also need alternative policies in order not to deprive their users of their rights. Therefore, this contribution is intended to provide a practical, critical and normative contribution by proposing guidelines for platform developers drafting their terms of use. As a practical resource, it lists most clauses that are to be included in online terms of use. The objective to enclose a range of examples from the most abusive to the fairest for most of the topics aims at exemplifying worst as well as best practices. The definition of fair clauses is meant to implement the vision of platforms which respects users’ rights. My legal approach is grounded in commons-based peer production theory and practice from a continental European legal culture perspective, with the assumption that alternative internets have political concerns for freedom, autonomy, consent, privacy, independence, surveillance, asymmetries of power, security, unfair contractual and commercial practices and other fundamental rights. Neither universal nor exhaustive, and rather than legal advise, the purpose is to raise awareness on the possibility to draft alternative terms of use, in a context dominated by US corporate legal culture aiming at maximising profit and minimising risks (Google, Amazon, Facebook and Apple). Instead of embracing a neoliberal agenda, alternative policies may rather try to support the development of sustainable services and products, seen as commons. Most Terms of Use show a diverse mix of all criteria and choices, and there are no caricatural pure evil commercial models or universally desirable commons-based alternatives, unilaterally advantaging or disadvantaging users at all levels. Finally, it follows the European Directive on unfair contract terms according to which contracts should be drafted in plain, intelligible language, which do not preclude validity and non-ambiguity.
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halshs-01362482 , version 1 (08-09-2016)

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  • HAL Id : halshs-01362482 , version 1

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Melanie Dulong de Rosnay. Alternative policies for alternative Internets. Journal of Peer Production, 2016, 9. ⟨halshs-01362482⟩
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