Monday, December 18, 2006

A salty tale of intellectual property ferment

The life of brine
I haven't made pickles in a long time. I'm crazy about half-sours and garlic dills, and when I'm visiting the States I consume an inordinate quantity of Ba-Tamptes. But, to my constant sorrow, such delicacies are almost unheard of in Israel. Most pickles are canned, and even the fresh refrigerated ones can't compare with the ones I grew up on.

There are a handful of small delis that make their own American-style pickles, and I stock up when I can, but none of them are near my home. So the only choice is to make my own, like my grandmother used to do when I was little.

In fact, it's not hard and not much work either. I have a few cookbooks with suitable recipes, including two which specialize in pickling and preserving. I'm always afraid I'm doing something wrong, but they almost always come out terrific.

The main problem is finding the cucumbers. To make a good batch of pickles, you have to start with the freshest, firmest possible cucumbers. Since I don't find perfect cukes in the supermarket every day, my pickle making is always an on-the-spot thing, dependent on a confluence of circumstances: A good supply of cucumbers on a day when I expect to have the time to make a batch of pickles.

(The worst was when I found perfect pickles towards the end of Chol Hamoed. On Chol Hamoed, you can only prepare food you need for the current festival, but the pickles wouldn't be ready until afterwards. Bummer.)

So it's an all-too-rare pleasure when I'm in the produce section and I find myself face to face with perfect cucumbers. I load up a couple of sacks, add some garlic and fresh dill, and shlep them home, eager to find the time to brine them.

This week, for the first time in ages, the cukes were gorgeous, and I got to work. But it had been so long since my last batch that I did a bit of recipe googling first, to refresh my memory and inspire my imagination.

The case of the modified recipe
Along the way, I discovered this recipe for dill pickles on I don't do vinegar pickles, so I'm not planning to use it, but what caught my eye was this comment by the original submitter of the recipe, one Sharon Howard:
This is my recipe and it has recently been changed by the All Recipes site. I do not use a water bath, that's what causes them to lose their crispness. I think All Recipes added that step when they chose this recipe as one of the top ten recipes. I imagine they added it to comply with USDA recomendations. I have emailed All Recipes asking that they either change back to the original recipe or remove my name. I am so sorry that you had the results you did.

Outrageous, no? apparently took Sharon's submission, changed it in a significant way that harmed the resulting product, and kept it up on their site, continuing to identify her as the submitter. Can they do it? Is it legal? Is it consistent with their terms of use?

I accept!
Like most of us, I routinely click-approve Terms of Use forms for Internet services without bothering to read them. This time for a change, I clicked on "Legal" at the bottom of the page and was treated to the site's Terms and Conditions of Use Notice. The more I read, the more outraged I became. Only a lawyer could come up with this stuff. A delusionary lawyer, for that matter.

Take the opening:
Welcome to (the "Website"). Please read this Terms and Conditions of Use Notice ("Notice") carefully before using the Website. By viewing or otherwise using this Website, you agree to the terms and conditions in this Notice.

By viewing the website, I agree to the terms and conditions in the notice? Seriously! I can't even find the notice without viewing the website. Guess it's too late by then. I've already agreed to it, whether or not I've found it or read it. I don't even have to click to accept it. How can the mere viewing of a website be tantamount to agreeing to its terms of use? (Answer: It can't. I'm not a lawyer, but I'm not stupid either.)

It continues:
We reserve the right in our sole discretion to change, modify, add or delete portions of this Notice at any time. We will provide notice of such changes only by posting the updated notice on our Website and changing the "last updated" date listed above.... We encourage you to review our Notice each time you visit our Site to see if it has been updated since your last visit.

What a pleasure! Every time I visit the site, I must review the terms and conditions notice to see if it has been updated. Otherwise, for all I know, I may be agreeing to sacrifice my first-born to the sun goddess. (Note to self: Before reading pickle recipes, check to see if terms of use have changed since yesterday.)

Positive comments only, please
Then there's the bit about hyperlinks:
You are granted a limited, nonexclusive right to create a hyperlink to the homepage of this Website only, provided such link does not portray or any of its products and services in a false, misleading, derogatory or otherwise defamatory manner. This limited right may be revoked at any time.

How considerate of them. They grant me the right to link to their site! Well, provided I don't make fun of them. Oops! Better remove that link... it's only legal to denigrate if you don't link to them!

Finally, we get to submissions:
By submitting, disclosing or offering any recipe, review, photograph, image, "favorites" list, comments, feedback, postcards, suggestions, ideas, notes, drawings, concepts and other information, content or material, or other item... you hereby grant to an irrevocable, nonexclusive, perpetual, worldwide, royalty-free right and license to use, display, publicly perform, modify, reproduce, publish, distribute, make derivative works of, sublicense and otherwise commercially and non-commercially exploit your Submitted Items and all copyright, trade secret, trademark or other intellectual property rights therein, in any manner or medium now existing or hereafter developed (including but not limited to print, film or electronic storage devices), without compensation of any kind to you or any third party.

Translation: Anything you send us belongs to us. We can do anything we like with it. We owe you nothing in return. Forever! Har, har, har!

And they claim the right to modify user submissions in any way. If this "agreement" holds legal water, the site was within its claimed rights to change Sharon's recipe without consulting her and while continuing to represent it as her original submission.

I'm passing this story on to some law-bloggers in the hopes of more enlightening comments. Stay tuned.