Indemnification from claims related to your content or your account


Service: SoundCloud
Status: approved
Changes: 2
Source: link
Author: import script


You hereby agree to indemnify, defend and hold harmless SoundCloud, its successors, assigns, affiliates, agents, directors, officers, employees and shareholders from and against any and all claims, obligations, damages, losses, expenses, and costs, including reasonable attorneys' fees, resulting from:</p> <p>(i) any violation by you of these Terms of Use or our Community Guidelines;</p> <p>(ii) any third party claim of infringement of copyright or other intellectual property rights or invasion of privacy arising from the hosting of Your Content on the Platform, and/or your making available thereof to other users of the Platform, and/or the actual use of Your Content by other users of the Platform or Linked Services in accordance with these Terms of Use and the parameters set by you with respect to the distribution and sharing of Your Content;</p> <p>(iii) any activity related to your account, be it by you or by any other person accessing your account with or without your consent unless such activity was caused by the act or default of SoundCloud.
You agree to indemnify SoundCloud from all claims resulting from any third party for infringement of copyright or invastion of privacy related to your content or any activity related to your account.


Comments:
On 2018-01-16 15:26:29 UTC, someone wrote:

imported from n_DCnOwcIo0

On 2018-01-16 15:28:42 UTC, someone wrote:

https://groups.google.com/forum/#!msg/tosdr/n_DCnOwcIo0/4YubpMmwtQsJ http://soundcloud.com/terms-of-use#indemnification
You hereby agree to indemnify, defend and hold harmless
SoundCloud, its successors, assigns, affiliates, agents,
directors, officers, employees and shareholders from and against
any and all claims, obligations, damages, losses, expenses, and
costs, including reasonable attorneys' fees, resulting from:

any violation by you of these Terms of Use or our Community
Guidelines;
any third party claim of infringement of copyright or other
intellectual property rights or invasion of privacy arising from
the hosting of Your Content on the Platform, and/or your making
available thereof to other users of the Platform, and/or the
actual use of Your Content by other users of the Platform or
Linked Services in accordance with these Terms of Use and the
parameters set by you with respect to the distribution and
sharing of Your Content;
any activity related to your account, be it by you or by any
other person accessing your account with or without your
consent.

For comparison this is Twitpic's similar clause:
You agree to indemnify and hold Twitpic, its officers and
employees exempt from any claim or demand, including reasonable
attorneys' fees, made by any third party due to or arising out
of Content you submit, transmit, post or otherwise make
available through Twitpic.

and 500px's:
You hereby agree to indemnify and hold harmless 500px, its
affiliated and associated companies, and their respective
directors, officers, employees, agents, representatives,
independent and dependent contractors, licensees, successors and
assigns from and against all claims, losses, expenses, damages
and costs (including, but not limited to, direct, incidental,
consequential, exemplary and indirect damages), and reasonable
attorneys' fees, resulting from or arising out of (i) a breach
of these Terms, (ii) Content posted on the Site, (iii) the use
of the Services, by you or any person using your account or
500px Username and password, (iv) the sale or use of your Store
Images, or (v) any violation of any rights of a third party.

I still have to think through what the differences between those
actually mean. But it is possible that I overestimated some of these
clauses so far… Are they really needed?

Let's have an hypothetical case, where someone uploads a remix on
soundcloud. That remix contains a sample of a song by Frank Zappa. Then,
Gail Zappa of the "Zappa Family Trust" hears about the song, gets upset
and sends a DMCA-style notice to Soundcloud.

First thing: it's not obvious that the remix is copyright infringement.
Let's say the sample is very brief and does not seem to qualify for
"originality."

Second thing: what will Soundcloud do? At this time, it's in their hands
to be prompt at removing alleged infringing material. If they fail to
comply with the law (DMCA, or ecommerce or whatever similar law applies
in our case) why should I indemnify them? All I did is upload a remix
which I thought, in good faith, was totally ok under copyright law.

Third thing: if it is my content, then I can still be sued by Zappa, or
Soundcloud (for breaching their terms). I would prefer to have
everything dealt with by a judge under copyright/contract law, than to
have everything handled from a contractual obligation raised from a
lawsuit between Soundcloud and some copyright holder.

In the end, not having these broad indemnification clauses does not seem
to close any opportunity for soundcloud to get back at their users if
something goes wrong. So they don't seem necessary for me, although they
do create some non-negligible risks.

What do others think?
--
Hugo Roy
French Coordinator, FSFE chat: hugo@jabber.fsfe.org
www.fsfe.org/about/roy mobile: +336 08 74 13 41
mobile DE: +49 151 143 56 563

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On 2018-09-10 06:14:10 UTC, madleary wrote:

approved:



We track editorial changes to analyses and updates to a point's status and display the previous versions here as part of an effort to promote transparency regarding our curation process.

Version 1: 2018-09-10 06:14:10 UTC by madleary

Previous Title: No changes recorded

Updated Title: No changes recorded

Previous Analysis: No changes recorded

Updated Analysis: No changes recorded

Previous Status: pending

Updated Status: approved

Version 2: 2018-08-29 13:31:06 UTC by import script

Previous Title: No changes recorded

Updated Title: No changes recorded

Previous Analysis: No changes recorded

Updated Analysis: No changes recorded

Previous Status: approved

Updated Status: pending