Thoughts on Medium’s New Terms of Service

One Contracts Law professor I knew estimated that about 60% of all contracts currently in effect were void or unenforceable, but worked just fine because the parties who had entered into them did so with good faith, and performed according to their mutual expectations. This is how the Internet works, for the most part. “A Deloitte survey of 2,000 consumers in the U.S found that 91% of people consent to legal terms and services conditions without reading them. For younger people, ages 18–34 the rate is even higher with 97% agreeing to conditions before reading.”[1]

In most cases, we blithely go on about our day; the site or software works largely as expected, and we do or don’t do whatever it is we’re supposed to do or not do (most of us wouldn’t go around reverse-engineering the code or making and selling copies of it). But consider this: Researchers created a fake site and terms that “included the disclosure that users give up their first born child as payment, and that anything users shared would be passed along to the NSA. A whopping 98% of participants agreed.”[2]

Medium may be shocked, tomorrow, to learn how many writers read.

A Quick Flash, and It Barely Registers in the Mind

The fact that Medium had updated their terms quickly flashed across my screen, this morning. The message barely registered as I signed in. It was only later in the day, after hearing rumblings, grumblings, and confused questions from other writers, that I sat down to take a much closer look at the new Terms of Service.

The NEW Terms, Effective September 1, 2020

(Note that they have been updated to address most of our concerns, as of 8/19/2020. See also “Should I Stay, or Should I Go?” For the moment, I am now inclined to stay.)

The part that’s most concerning to writers is this:

You retain your rights to any content you submit, post or display on or through the Services.

Unless otherwise agreed in writing, by submitting, posting, or displaying content on or through the Services, you grant Medium a nonexclusive, royalty-free, worldwide, fully paid, and sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display your content and any name, username or likeness provided in connection with your content in all media formats and distribution methods now known or later developed without compensation to you.

The second paragraph renders the first paragraph fairly useless.

“Unless otherwise agreed in writing…” There has been some question of what this means, but to clarify: “agreed” implies a meeting of the minds — between the writer and Medium. “…in writing” means a separately negotiated contract or a change to the latest Terms of Service.

Don’t bother making statements and disclaimers on your posted work here — it won’t work any better all those silly posts on Facebook, denying them rights to your photos and posts. Never mind that Facebook didn’t even change their Terms and the whole thing was a hoax; there is no way for you to unilaterally void a site’s Terms of Service. You can stop using the Service. That’s pretty much your only option, if they refuse to negotiate.

On the one hand, this wording looks like typical, over-reaching, ridiculous boilerplate. Like someone was too lazy to refine the rights Medium needed to claim in order to hold up their end of the bargain, which is to display our writing and pay us for it as agreed upon in the MPP agreement, if applicable.

“non-exclusive” is necessary, because the “rights” in it are held by the writer, Medium, and anyone else the writer cares to sell or give them to

“royalty-free” needs clarification, to include payment for stories enrolled in the MPP

“worldwide” makes sense

“fully paid” needs a lot of clarification; does this mean that Medium intends to terminate the MPP on September 1 and claims ownership of all content — for free?

“sublicensable license” needs to be clearer, but I’m inclined to say no — if Medium is sold, or spins off a subsidiary to manage the site, it makes some sense, but as written, I think it’s overly broad

“”to use, reproduce” and “distribute, publicly perform and display” — all of these are reasonable, if repetitive, assuming we get rid of the following:

“modify, adapt” and “translate” and “create derivative works from” Note that translations are “derivative works,” and if you’ve ever seen a machine translation you’ll understand why I used to try to fight Google and others over translation buttons and plug-ins under a theory of copyright violation.

“in all media formats and distribution methods now known or later developed without compensation to you” This one’s a big “nope.”

The OLD Terms We Agreed to, Effective Through August 31, 2020

Here are the terms everyone agreed to, prior to September 1, 2020:

You own the rights to the content you create and post on Medium.

By posting content to Medium, you give us a nonexclusive license to publish it on Medium Services, including anything reasonably related to publishing it (like storing, displaying, reformatting, and distributing it). In consideration for Medium granting you access to and use of the Services, you agree that Medium may enable advertising on the Services, including in connection with the display of your content or other information. We may also use your content to promote Medium, including its products and content. We will never sell your content to third parties without your explicit permission.

https://help.medium.com/hc/en-us/articles/360053078253

Doesn’t that seem simpler, more author-friendly? That’s what I agreed to, when I signed up and started writing on Medium. At $1/day, I’m not earning enough to call it “good consideration” for the current terms, objectively speaking. Not when I was earning $0.25/word or more freelancing in the 1980s. Medium’s “pay” is more like the clanging of a slot machine in Vegas; the occasional bump in the stats and the pennies is an addictive little dopamine hit to the brain. But it is not a reflection of the real worth of the content many of us write and publish here, and it is not enough to trade one lopsided set of Terms for one that borders on abusive.

What Can We Do?

Write to Medium, Medium Staff, Medium Legal and let them know your thoughts on the new Terms, but ultimately the decision is theirs and presumably they have made it.

After that, you have two choices: Stay under the new deal, or leave Medium.

While I would prefer to stay under the old Terms, I would be very surprised if Medium reverts after publishing their new Terms. As there is no way to selectively, quickly delete multiple stories and I have nearly 1000 of them that I do not want covered under the new Terms, it will simply be more practical to delete my account here. And it will save me $5/month (I’ll only be losing about $25/month — and that’s really okay, at this point). If you are in that mythical 5.4% of writers making over $100/month, you’re still probably not earning what you could be, elsewhere. If you’re earning over $1000 per article, bless you — you’d better stick around.

At any rate, it’s been fun — and no hard feelings: Medium has the last word, and that’s their right. I have enjoyed it for the past 5 years, and will miss the friends I’ve made here, but you can find me, easily enough, if you look.

IF You Choose to Leave (and Maybe Even If You Stay)

Export your data. Do this now, while you’re thinking about it.

Click your Profile picture. Select Settings:

Click Account. Find the section Download your information, and click the button labeled Download .zip:

Watch for an email containing a download link. It will come from the following:

Download the .zip file and extract all the folders and files within it. You can use these .html files to upload copies of your stories to your own blog or another site. Remember, you own the rights to do that, whether you stay on Medium or leave.

UPDATE (8/18/2020)

I received the following reply from Medium. It all sounds very promising, but the problem — and I replied with this — is that things like “fundamental beliefs (and behaviors)” and good intentions mean nothing against a written contract. And that’s what the Terms of Service is: a contract. Read this statement from the Terms of Service carefully and tell me where “email assurances” come in:

These Terms, and the terms and policies listed in the Other Terms and Policies that May Apply to You Section, reflect the entire agreement between the parties relating to the subject matter hereof and supersede all prior agreements, statements and understandings of the parties.

If Medium is willing to incorporate the definitive, clarifying statements here into the TOS, I would happily stick around — I’d encourage you all to do the same. If not, I will be deleting all my content or my account on 8/31/2020, because I do not agree to the provisions of the contract as they stand. Again, barely $1/day is insufficient consideration, especially when $5/month of that goes right back to Medium.

But this shows that perhaps they do mean well — we shall see.

Thanks for writing in.

You may have noticed a banner across all of Medium notifying you of our upcoming new Terms of Service and Privacy Policy. We’ve received some questions about the updates, so we’d like to give you more context and information about them.

While some of the language in these policies has changed, Medium’s fundamental beliefs (and behaviors) have not. Here’s the deal:

You own all the content you post on Medium, and we make no claims to it, nor will we ever in the future.

We do not, and will not, sell your information. Ever.

Here are links to our latest Terms of Service and Privacy Policy. These go into effect on September 1st, 2020. Until that date, our existing Terms and Privacy Policy remain in effect. The purpose of the banner you’ve seen is to give you a heads-up about upcoming changes plus an opportunity to think about them and ask questions.

The following section in the new Terms of Service does have updated, but not materially new, language:

Rights and Ownership

You retain your rights to any content you submit, post or display on or through the Services.

Unless otherwise agreed in writing, by submitting, posting, or displaying content on or through the Services, you grant Medium a nonexclusive, royalty-free, worldwide, fully paid, and sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display your content and any name, username or likeness provided in connection with your content in all media formats and distribution methods now known or later developed without compensation to you.

This is the same as the permissions in our Terms’ previous version. It’s just written in different language that’s more precise.

What this term means is that you’re granting us a license to reproduce the content you post on Medium within the surfaces and products served by Medium only. These are the referenced “Medium Services.” These services include our website, our official apps, and any other future product or service that is powered by the Medium network.

You are NOT granting us permission to use your content outside of the Medium network. You also are NOT granting us copyright to or ownership of your content. For example, we would make no claim of ownership over your copyright content for development into any other materials such as books, films, or television shows without your permission and participation.

Additionally, nothing about our updated Terms changes or overrides your ability to monetize any content you choose to publish into our Partner Program. Nothing is changing with the Partner Program.

In short, you still 100% own your content, and you remain in control of it.

You’re just granting us permission to display it on Medium. If you don’t agree to that, you’re free to export your content at any time from your Settings Page, and you retain complete ownership over it. You can also delete your account on that same page.

Additionally, we have moved the language regarding sale of your information from the Terms to our Privacy Policy. But it remains the same:

Medium does not sell your personal information.

Ever. Full stop. We have made a commitment to be an ad-free platform and, as such, we will not sell your information.

Additionally, we have clarified CCPA compliance and rights for California residents to our Privacy Policy, and added the option for all users to opt-out of binding arbitration in our Terms of Service.

In short, Medium continues to respect and promote the rights of creators and users, and we stand firm in our commitment that you alone own and control your work and your data.

By continuing to use our services, you agree to the Terms of Service, and acknowledge the Privacy Policy applies to you.

If you don’t agree to the Terms of Service or Privacy Policy, you must stop using Medium.

Here are instructions on how to delete your account if you do not wish to continue using Medium: https://help.medium.com/hc/en-us/articles/115004914748-Delete-or-deactivate-your-account

Thanks. Medium Trust and Safety

And now, on August 19, I have a few more thoughts — based on some of the comments and questions I’ve been seeing from other writers on Medium who are still a little confused about what all this really means. It’s important for you to know that, so you can make an informed decision about whether to stay, leave, or just strategically change the sorts of content you post here:

There is no one-size-fits-all “right answer.”

UPDATE (8/19/2020):

The TOS has been modified to incorporate language addressing our biggest areas of concern. I’m satisfied. Read the changes, and decide for yourself.

[1] Cakebread, Caroline. “You’re Not Alone, No One Reads Terms of Service Agreements.” www.businessinsider.com, 15 Nov. 2017, https://www.businessinsider.com/deloitte-study-91-percent-agree-terms-of-service-without-reading-2017-11. Accessed 18 Aug. 2020.

[2] Ibid.

Holly Jahangiri is the author of Trockle; A Puppy, Not a Guppy; and A New Leaf for Lyle. She draws inspiration from her family, from her own childhood adventures (some of which only happened in her overactive imagination), and from readers both young and young at heart. She lives in Houston, Texas, with her husband, J.J., whose love and encouragement make writing books twice the fun.

If you are reading this on any site other than Medium or on jahangiri.us, the content may have been stolen.