by Paul Alan Levy
In a comment posted yesterday to my blog post last week about an amicus brief that Public Citizen and EFF filed in the First Circuit, Ripoff Report founder Ed Magedson announced that his company is going to modify the browsewrap agreement that it has been imposing on users, whereby the company purported to obtain an exclusive license to carry reviewers’ critical content. This is progress for which that company deserves praise.
As I explained in last week’s post, our amicus brief agreed with Ripoff Report’s argument that plaintiff Small Justice had abused copyright law by trying to invoke it to enjoin continued posting of allegedly defamatory content. However, we also argued that a term in the Ripoff Report browsewrap contract that took an exclusive license in reviews was an unenforceable contract of adhesion. Our principal concern was that such a contract could be used to prevent users from posting the same criticism, in identical or even similar language, on other review sites.
According to Magedson’s comment, the only reason the current browsewrap agreement takes an exclusive license is to enable Ripoff Report to go after other review-hosting sites for “scraping” its content. He insists, as his counsel did when I discussed the case with them before filing our amicus brief, that Xcentric Ventures (the owner of Ripoff Report) has never pursued a copyright claim against a user for reposting the identical review elsewhere. However, to deal with the “academic concern” that I expressed in my blog post, Xcentric has now decided to revise the browsewrap agreement so that although reviewers will give the full copyright interest in their content to Xcentric, Xcentric will, in turn, give the reviewers licenses to re-post their own content.
I confess I not at all persuaded that Xcentric has any legitimate need to grab users’ copyright to attack “scraping.” Other review-hosting sites such as Yelp feel quite capable of addressing scraoing without having such an abusive contract claim. Moreover, although I can understand why Xcentric might see scraping as being contrary to its interests, it would be my guess that most consumers who have taken the trouble to compose critical reviews about businesses would be pleased to learn that their criticisms have been disseminated even further by other review sites, legitimate or otherwise. And if that is so, I am not inclined to believe that is worth any risk to consumers to justify the new browsewrap contract that Xcentric is developing. (And I express no view whether the new language would meet the legal concerns under Arizona law that our amicus brief presents).
Indeed, when I pressed Magedson in a conversation after he made his comment, it seemed to me that the justification for taking copyright was two-fold – that scrapers take traffic from his web site, and that scrapers make it less valuable for companies to buy into the “Corporate Advocacy Program.” Neither of those arguments suggests that there is any reason why the interests of consumers who write reviews on Ripoff Report are advanced by the taking copyright ownership away from them.
Moreover, I am less than impressed by the need to make the Corporate Advocacy Program more valuable, but discussing that here would detract from my main point, which is to express appreciation for Xcentric having responded to our amicus brief by dropping the browsewrap provision that we criticized.
0 thoughts on “Ripoff Report Will Drop Contract Term That Public Citizen and EFF Criticized for Hurting Consumers”
Ripoff Report removed a posting of mine critical of a nonprofit law firm without a court order declaring the report defamatory.
APaprently, *some* animals are more equal than others.
Paul Levy and Public Citizen are champions of free speech, especially for consumers, and I appreciate them. I can totally appreciate their line of thinking…but there are perhaps some things that we see at Xcentic, and hear from consumers, that they don’t. I have been doing this now for going on 19 years, and I have always helped and given to consumers who are less fortunate for many years of my life. So, I hope you know my heart is in the right place.
Ripoff Report has to balance the interests: one being that of the consumers and the other being that of being a business. Without being in business we can’t be of service for consumers (and all the government agencies and news media that we assist every day). In order to help break those out I will address both perspectives.
FROM THE CONSUMER PERSPECTIVE
We too have long been dealing with consumers. They write to us every day for all sort of reasons. Why would consumers would NOT like to see their stuff on other competitor websites? Believe it or not, when people find that a competitor has stolen content, consumers have written us asking if we are connected with the competitor site (clearly causing confusion on the part of the consumer) and/or suggesting that it could be copyright infringement. As much as people want to claim that Ripoff Report is controversial, Ripoff Report, as an American company, does have brand loyalty. Consumers choose Ripoff Report for a reason. When another competing website steals a consumer comment from Ripoff Report it robs the consumer from the right to choose where they want the information placed; it robs the consumer from the right to choose the type of forum they want their information displayed; and it robs the consumer the right to choose under what Terms they want such information placed. Some consumers clearly feel that their rights have been violated when their content is placed on a site they had zero intentions of supporting…hence why we receive e-mails letting us know about stolen content on other websites from the consumers themselves.
Beyond consumers feeling that their right to choose has been violated, the scraping dilutes the power of the consumer’s complaint. We help consumers by helping businesses help consumers. Not in a gentle way that kisses up to business. Ripoff Report forces businesses to do better because of the unique incentive structure built into Ripoff Report programs. This is a unique configuration of leverage. Other sites scrape complaints and then take them down for money. RipoffReport.com takes complaints, and induces a business to make a pledge to reach back to the consumers that have complained and make things right, and to serve customers properly going forward. Additionally, as part of our Programs, we set up a fast track so that consumers who complain on RipoffReport.com get high priority customer service from the business. A Ripoff Report does not come down, but the business can use it to demonstrate good customer service, policed by Ripoff Report. It is true that the program is expensive. But, we will work with a small business that wants to do better.
In the same vein, the effect of scraping is that the other websites simply charge a ransom to hide the complaint WITHOUT demanding better performance from the business. The consumer protection value of Ripoff Report’s program is diluted, because the scrapers warp the incentives. Why take the plunge with the Ripoff Report program? Why make the pledge and pay the fee if the scrapers are simply going to post the same old complaint for ransom, over and over again? Any positive benefit for the business in making the pledge and having the pledge showcased is diluted by multiple scraped reports.
FROM THE BUSINESS PERSPECTIVE
As mentioned in the beginning, if Ripoff Report’s value and presence online is diluted, it may eventually cease to exist for consumers and others that we help, e.g. government agencies and media. Ripoff Report didn’t start off with the intention of being in business, I did not start it to make money ((if interested, ask me about that sometime))…the costs of the lawsuits is what turned this website into the need for being a business and, over the years, I have learned that our programs really do help consumers and businesses work better together. It is one thing to allow consumers to gripe about businesses but it’s a whole other thing to get businesses to make things right with the consumers.
Due to the fact that we are aware that these scrapers take these actions we have been anti-scraping efforts with Google and DMCA notices. Scrapers aren’t our only fight though…we deal with people who file false DMCA notices with Google in an effort to suppress free speech and that is another entirely different ball game that requires careful, yet tedious, work to ensure that we are not filing inaccurate counter-notifications. We have to employ people to do that. The whole system is rather bottlenecked and inefficient. To use it, we need strong copyrights in individual reports.
Maybe there are people you know at Google that we don’t or have access to information that we have yet to be provided or learn. However, many tech bloggers have discussed how the process is a mess.
For example see
(this one really paints the story of the kind of frustration we feel well).
Some of these websites stealing our content went so far as to copy and paste our Terms of Service which included OUR CONTACT INFORMATION. No wonder consumers get confused! So while I can respect your position, scraping IS a really big deal to us. It’s not just some wayside argument.
You mentioned that other companies in the industry, such as Yelp and Glassdoor, have similar fights. This may very well be true and I trust your knowledge as you certainly are in a position to interact with them more frequently. At the same time, while Xcentric has been around for longer than any of them, Yelp is a public traded company with a net worth of $550M (2015) and Glassdoor, while private, has been said to have raised $160M between 2007 and 2015. While consumer commentary is the glue that places our entities on similar playing fields, Xcentric operates by a completely different business model. Simply put, Ripoff Report is not afforded the same resources. Of course, Xcentric is always open to learning how other similarly situated businesses combat these same issues (because we would always love better and more efficient ways of doing things) but we don’t suppose they are just handing that information out and likely have proprietary systems.
We will update you with our progress in assignment / license language that will #1 explicitly allow the consumer to post and repost their own story to their own hearts content, but #2 still allow us the most effective and aggressive options against scrapers. We NEVER intended to stop authors from telling their own story. There is no harm in making improvements.
Again, I’m grateful and thankful for Paul Levy’s consumer advocacy. We are both passionate and stubborn about that. Thanks you for this forum, I feel better sharing and being heard.