Buried away in the leaked MediaDefender emails is the End User License Agreement for MiiVi. Like most EULAs it’s long and boring but this one has a sting in its tail. If MediaDefender catch you engaging in copyright infringement with the MiiVi app, they state in black and white that they will report you to the relevant authorities.
According to Wikipedia, a EULA or ‘End User License Agreement’ is a software license agreement which ‘indicates the terms under which an end-user may utilize the licensed software’.
The EULA usually comes either in paper form (with some software, game etc )and can be recognized as a booklet with tiny dense type with mostly legal terms only lawyers understand, or the digital type that appears when you install some software. Most PC users will be familiar with the box where you have to select ‘Yes’ or ‘No’ to declare that you have read the mountains of legalese, understood it and are prepared to adhere to the rules.
It can be presumed that most people who are presented with EULAs don’t read them and it’s a safe bet that the people who installed MiiVi didn’t read its EULA either. Some may have – but most eyes would’ve glazed over after the first paragraph:
Boring….but not if you skip through a little to a section in the ‘User Conduct’ section:
User Conduct. You agree to abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with the Product, and your use thereto. You agree not to use, endorse, or in any other way allow use of the Product to:
[edited to remove non-relevant section]
(d) copy, reproduce, store, transmit, post, submit, publicly display or manage any material that may infringe the intellectual property rights or other rights of third parties, including trademark, copyright, patent or right of publicity;
In itself, this section is no big deal. After the ‘Grokster Decision‘, anyone getting involved with the marketing of media distribution software needs to be very careful that they are not seen to be encouraging piracy.
However, it’s a part of the ‘Measures and Enforcement’ section (in conjunction with the above) which grabs the attention:
Your failure to comply with any of the provisions mentioned under the User Conduct section or any other provision of this Agreement, automatically nullifies any obligation Miivi may have to contact you or provide you with any notice required by this Agreement or by law. You hereby agree, that if Miivi believes, in its own discretion, that you directly may be connected with such activities, Miivi may be required to disclose such a conduct and the suspected infringing user’s (i.e., your) Data or Information to the proper authorities.
So in it’s own words, if MiiVi believes ‘in its own discretion’ that a MiiVi user infringed copyrights of a third party – a civil offense even in the copyright-tough United States – the company would take it upon themselves to seek out the copyright holder and provide them with the MiiVi user’s information, presumably so that action could be taken against them. The fact that MiiVi would’ve been able to monitor for copyright infringements at all would be quite a surprise to the majority of its users. The rest would understand it would be easy – if an anti-piracy company was running the project.
Although there still appears to be no hard evidence that entrapping pirates was the sole purpose of the project, the fact that MiiVi is presenting itself as the copyright equivalent of judge-and-jury does not sit well.
If the wording said that MiiVi would take action if required by law (such as with a DMCA take-down request) it would be an irritant, but would probably be accepted as a necessary evil. However, this pro-active stance where one is reported to ‘proper authorities’ at the discretion of an unconnected 3rd party (over a civil issue), is something else entirely. Holding private data is a very serious business, so much so that handing over such information to a 3rd party in the UK and EU would probably constitute a criminal breach of data protection laws.
Finally, a statement in the EULA that is likely to raise a wry smile or two:
…..You agree not to use, endorse, or in any other way allow use of the Product to:
[edited to remove non-relevant section]
(b) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent;
It seems that EULAs might be worth reading after all.