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The Facts of TOS

by TDavid of TDScripts.com

I used to enforce the AOL Terms of Service (TOS) as a contest judge in their Amazing Instant Novelist area (keyword: novel) back in 1997. It was an interesting task which they compensated me for by giving me a free internet account. For those not familiar with this infrastructure, this is how AOL acquires many of their "volunteers" to work for them. At least that is how they did it 4 years ago. Anyway, I went through training in what to look for to TOS out, if you will, and I recall that experience as being an exercise in walking a gray razory edge because creative fiction can sometimes give one some extra latitude not afforded in other endeavors.

In some ways my job at AOL was no different than Webmasters reading, interpreting and following the terms and conditions of sponsors. So, are you clarifying the fine print before sending traffic to a sponsor?

You should be.

Let's look at a few actual sponsor terms and conditions that I pulled at random (I'm not going to name names from where these came from but if you look around I'm sure you can find them). Here's one line in this sponsor's TOS verbatim:

"SPAM, ILLEGAL SITES AND CONTENT ARE BANNED
Specifically banned are sites which contain and/or promote the following content, programs or links including BUT NOT LIMITED TO: child pornography, bestiality, warez, mp3, password selling or trading, newsgroup postings, and spam e-mails.

SPAMMERS WILL HAVE THEIR ACCOUNTS TERMINATED WITHOUT PAY"
Do you notice they use the clever verbage: "BUT NOT LIMITED TO" (which I intentionally capitalized for additional emphasis) -- what do they mean by that? Do they mean that there are other types of offenses that they haven't list but that they can ban you for? Why don't they spell out what these illegal actions are specifically? Or do they mean they can ban you for any site they deem as spam or illegal? What country's laws are they using?

Sponsors say: "We just want to make sure that we leave this open for other illegal acts."
Webmasters say: "Why don't you say EXACTLY what type of illegal content or what you consider spam?"
*Common sense* says: "If you do anything illegal or link to anything illegal PERIOD you should have your account terminated. And if you don't promote illegal sites or activities you SHOULD have nothing to worry about."

Circle Jerk (aka cycle jerk) sites to me are a perfect example of the type of TOS rules above that quite possibly could become problematic with TOS rules like the one above. If you pop a dozen windows and say window #11 from some site you are trading with has links to KP or warez, then who does the surfer (or sponsor TOS patrol) think did this to them? They think YOU did, not the owner of window #11. If you were the TOS patrol for this particular sponsor ask yourself what would YOU do in this circumstance?

How would you rule? Let's look at another actual line from the TOS from a different sponsor. Again, I'm not trying to pick on any sponsor in particular but rather to point out specific verbage that exists that sometimes needs further clarification BEFORE sending traffic to the sponsor.

"Commission Payment. Commissions due and owing to you under the Program will be paid to you directly by {SPONSOR} each week. Pay periods run from Monday to Sunday. Payout is processed on Monday, and checks are mailed on Tuesday. WE PAY LIKE CLOCKWORK - - YOU CAN COUNT ON IT!! Note: We will not pay to P.O. Box addresses. Your sign-up must include a verifiable street address."

We live in a small town where no mail is delivered to physical street addresses (including our office) so we would not be in compliance because we don't have a physical street address. Sure, we have a "verifiable street address" for our office location, but all mail must go through PO Boxes or PMB. If I signed up and didn't catch this part of the TOS, I'd already be in violation!
Sponsors say: "PO Boxes or PMB can be a front for a scam artist so we want a street address to make sure we can more easily track down a real human being."
Webmasters say: "What if I live in an (rural) area where they deliver mail *ONLY* to PO Boxes?"
*Common sense* says: "If I check with them first and explain the situation they should allow me to be in their program."

Notice how I say "if I check with them first" -- it would be so easy to sign up for this sponsor and miss this clause because, interestingly enough, on this particular sponsor's join form it doesn't say anything about this important TOS clause.

Let's look at a third and final example from yet another sponsor.

"...You are required to use the coding we provide as links, and all graphical material as well as the provided code must be hosted off of YOUR server. Blatently blind links, hot linked banners or any other misuse in terms of hit manufacturing, signup manufacturing, falsification and/or bandwidth theft will result in immediate account cancellation, and the forfeiture of all funds owed to that account, and may result in prosecution at {SPONSOR} discretion."

Let's say you like to track your outclicks to various sponsors through your own cgi or php script so you can see how much you are sending them with your own statistics. If you didn't pay close attention to the wording from this sponsor, you'd be in immediate violoation sending hits to them this way. Many sponsors if you ASK THEM FIRST will let you do this, especially if you have a reputation as being a reputable webmaster and the program is partnership-based. This rule is understandable under a pay-per-click method of payment, but under a partnership where you only get paid with each sale ... why not allow LEGITIMATE webmasters to send traffic this way?

And how about this clause: "blatently blind links" -- what are "blatently" blind links, really?

"Click here for free porn!" (when it leads to a paid membership only site). Is this blatant enough to hold your commissions hostage and send you packing?

Another gray area.

Perhaps if the sponsor showed a few examples explaining this type of wording, but there are no examples of what is "blatant" -- it is assumed that you and I should know exactly what is and isn't blatant. You've heard the story about what happens when you assume something right?

IMHO, webmasters should get clarification on ANYTHING in the TOS that is gray before doing business with a sponsor. If they won't email you back or are rude to you because you are the 1 in 1000 webmaster who want to clarify (and thus protect your business) then you have only wasted the time you spent writing the email. If they respond quickly and provide you with a satisfactory explanation for the TOS rule in question then by all means keep their response and do some biz with them. At the very least if enough webmasters question a particularly gray TOS rule they might update it to be more lucid.

It's worth the time to ask first, instead of after the fact ... if and when there's a misunderstanding.

TDavid is co-owner, programmer and webmaster for several sites devoted to programming including his own tdscripts.com. He has done custom programming in various programming languages for companies all over the world. Every Friday at 2pm PST you can catch his weekly radio show dedicated to the technical side of webmastering and programming at www.scriptschool.com/radio