The 3M Corporation markets a handy little Post-it® Notes Web site utility, but has tied it to an unusual licensing agreement that makes the user responsible for meeting unspecified decency laws everywhere in the world and liable for all of 3M’s legal expenses in any nuisance suit that names the user’s Web site.
Post-it Software Notes for Internet Designers enables Web site designers to stick virtual Post-it notes on a web page. Visitors to the page (once they’ve installed a free plug-in) can drag the notes to their desktops, where the notes can serve as reminders, receipts, hot links to the designer’s site, etc. The notes can contain text, alarms and reminders, sounds, GIF animation, live buttons, and live links back to the originating Web site. The newest release, the Professional Edition, enables a savvy designer to create customized notes that reflect the visitor’s input to the Web site, such as customer ID numbers or shopping-cart contents, and to incorporate video and audio into the note. It isn’t cheap — $300 for each Web site on which the Professional Edition software is used, or $2499 for an unlimited license — but it’s an excellent implementation of a useful idea, and in creative hands could add ease of use and functionality to Web sites and banner ads.
Read the fine print!
When you install Post-it Software Notes for Internet Designers, an end-user licensing agreement pops up, to which you must agree in order to install the product. This happens with virtually every software product in the solar system, and usually you just click on the “I Accept ” box and move on. Heads up! This particular agreement requires that you agree not to use the software to send libelous or pornographic material to other people, or to otherwise violate “the laws or regulations of any country, state, province, city or other government entity into which you will make the Post-it® Software Notes available for downloading.”
This language should give you pause, even if you’re not planning an assault on the moral code, since at the local level, even within the U.S., there is no consensus about what constitutes obscenity. Web pages are pretty much available for downloading from anywhere on earth, so this agreement seems to require that you know and abide by the strictest libel and obscenity laws in the world, and it makes you liable to withdrawal of the license (and attendant disruption of your Web site) based on such laws.
But wait, there’s more!
In addition, the agreement says, you must “agree to indemnify, defend, and hold 3M harmless, including paying 3M’s reasonable attorneys fees and costs of defense, for any claims, demands or causes of action against 3M by any third party relating to your utilization of the Software and the content of any Post-it® Software Notes you create.” Basically, this says that if someone anywhere in the world seeks to harass 3M by suing them about content that’s displayed on your Web site, you are liable without limitation for 3M’s defense, irrespective of whether the charges are sustained in court. 3M’s lawyers have explicitly confirmed to me that this is correct. How much of your money do you suppose it would take 3M to settle a nuisance suit?
Software end-user licenses are most often concerned with explicitly limiting the rights granted to the user to copy and use the software on multiple systems and to distribute the software to others. If the software’s exportability is limited by U.S. law, that’s also spelled out in the license. 3M’s license, on the other hand, is similar to contracts that writers sign (or refuse to sign) with publishers, but it doesn’t resemble any software user license I’ve ever seen before.
The dark side of branding.
So why is 3M doing this? Because the software notes, unlike paper notes, say “Post-it® Note” at the top. Somewhere along the line, somebody, perhaps in a moment of levity, raised the question of Post-it Porn Notes, and the 3M legal department isn’t laughing.
3M has spent a lot of time thinking about the “brand promise” of its Post-it Notes — the intangibles of a product that are marketed to the consumer. According to 3M, a Post-it Note promises a yellow square that you can take off a pad of similar squares and stick on something else. To me, a Post-it Note also promises that what I write on it is my own business, and is not in any way owned or controlled by the 3M Corporation.
3M seems new to the software development game, and they seem to have realized that their agreement is unusually restrictive: the agreement discussed here is a recent modification of the previous agreement, which essentially set 3M up as sole arbiter of what was obscene. The new agreement is more specific: site designers using 3M products must obey every law in the world.
3M seems intent on introducing us to an era in which freedom of speech exists only for users of generic products. What if, say, you had to pledge to Microsoft and Apple that, in return for using Windows or the Mac, you wouldn’t use those environments to develop and distribute anything that might offend anyone? Or if you had to promise Nike that your wouldn’t wear your be-logoed sneaks in situations that might reflect badly on their corporate image?
I believe I’ll just say no to corporate paranoia. If you too want to share your reaction with 3M, you can email them: firstname.lastname@example.org.