The Program of Encouraging the Authors is “pitfalls” about which it is better to learn in advance
I strongly support the initiative of Habrahabr on the introduction of incentives for blog authors. It is fair to allow users to make money on high-quality posts, in fact getting a part of the profit that they bring to the service. I believe that any self-respecting service should come to the same sooner or later.
I got acquainted with the Rules , and the conditions are very good, in the style of Habr. And I wanted to put a tick that I accept, but ... I saw the second tick about agreement with the terms of the agreement, which is hidden under the link.
In other circumstances, I might not even read the agreement, although I am a lawyer, because for me, as it seemed to me, in human terms, the essence of the agreement was set forth in the Rules, why read the legal text, but it was not there !
What are the pitfalls of the Habrovsky Public Proposal for concluding an Author's Order Contract (hereinafter referred to as the Contract), we will consider below.
1.1. The first thing that confuses - the subject of the contract. The user undertakes on the instructions of Habrahabr to perform work on the creation of a work (Section 2.1). Which task? Now Habr will give users tasks ? In accordance with the Agreement, Habr has the right to do this, and the user will be obliged to fulfill the task, and in case of non-compliance, Habr will be able to recover his expenses related to the non-compliance. Although clause 3.2.1 allows us to choose “the subject of the work and the style, the genre and the volume of its work”.
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1.2. No less important is the rule on the complete transfer of the exclusive right to a work created by the user . From a legal point of view, this means that we, of course, retain the status of the author, but lose all and any opportunity to use our work. Including we lose the opportunity to use it ourselves - for example, place it on our website.
Rights are considered to have been transferred at the time of posting by you (clause 1.12).
Contradiction? After all, the Rules say that “participating in the program are distributed under the license Creative Commons Attribution 3.0 Unported (CC BY 3.0)”. Why not choose a scheme in which we choose to distribute our post under the specified license? Why we are not given the right to change our mind with the appropriate right of Habr to remove such a post (and even to demand the remuneration paid for it)?
Ok, if Habr wants to control the further fate of the post (which can, in principle, be recognized as a fair desire - in order to be predictable and preserve the accumulated content), then why not do this by obtaining from us, the authors, an exclusive license? Why deprive us of all the rights to use our work?
After all, we do not have the right to regain our rights if Habr decides to change the terms of distribution of our works.
I will note that nothing prevents Habra from changing his mind at any moment in terms of the distribution conditions of our works, since according to the Contract Habr receives ALL the rights to any disposal and use of the work. In addition, Habr, by the way, does not undertake anywhere and does not directly allow any person to use such topics under the terms of the CCA 3.0, the specified line in the Rules is not enough - it is not obligatory for Habr. It is rather a “goodwill gesture”.
1.3. For the entire period of the Treaty, no matter how many articles we publish, we get 1000 rubles, not for each work, but for all and any.
In the absence of a clear definition of the terms of the Treaty and / or the scope of the author’s responsibility for writing articles, a serious question arises as to the validity of this provision. However, this plays into our hands. After all, if the contract does not determine its price, then it is considered to be non-concluded , which can give the signatory a chance to challenge the validity of the Treaty in the future. Although it will be difficult.
1.4. They can not help but strain, or at least not surprise with their irrelevance, the provisions that require confidentiality from us (clauses 3.2.3, 6.1). Confidentiality of what? Is Habr will provide us with some confidential information? I doubt it. It's just about those articles that we publish here. No confidential information.
1.5. Remember that the use of the translation of someone else's work is allowed only if the contract with the author (rightholder) of the original is concluded ! You can not take any article you like, translate it and post it on your site. Whatever your goals are.
I think Habra would not be superfluous to remind users about this, since our relations are brought to a new legal level.
2.1. Acceptance of the Agreement is in accordance with clause 2.2. Active actions, including familiarization with the agreement, although it says there that it is sufficient to put a tick. But if I didn’t open the link at all, but put a tick? Well, this is a question of technology. Although, of course, these issues will sooner or later arise before our court, as they stood up before American justice. In any case, the cost to remember - you do not sign on paper any document that you slip, without reading? True, do not sign.
It’s time to start realizing that now it’s equally safe to do it on the Internet. Read everything carefully, especially when your identity is sufficiently identified, as in Habré . According to clause 2.2.2, you must provide not only details about yourself, including passport data, but also copies of your documents. Otherwise, the agreement is not considered to be concluded. So, before such a presentation you still have the opportunity to withdraw from the Treaty.
It is interesting, by the way, in this connection that the Agreement provides for a penalty for failure to provide the documents specified in clause 2.2.2 on time, but if the Agreement is not concluded without these documents, then how is it possible to collect the penalty at all? (A rhetorical question.)
2.2. The remuneration condition can be considered inconsistent, and the Agreement, accordingly, not concluded (discussed above).
2.3. The contract regulates in detail and correctly the issue of its signing on our part, but in no way determines how the Agreement is signed by Habr. We do not see a handwritten signature, and accordingly, it should be signed as provided by the contract itself in accordance with the requirements of the law (according to the previously existing law - an analog of a handwritten signature, now - an analog of a handwritten signature or an electronic signature), but we do not find rules in the Contract regulating the signing by Habr. Thus, the Agreement placed on the Habr website is not signed by the service, and therefore there is no properly executed offer . Nothing to accept.
This Agreement cannot then be admissible as written evidence, since according to the Civil Code, copyright agreements must be concluded in writing, failure to comply with the form - shall entail the invalidity of the agreement.
3.1. Clause 3.2.4 and similar standards on other services cannot but surprise. It is our responsibility to independently monitor any changes . What does this mean? Do I have to re-read the entire Agreement every time I access Habr (or at least before each publication of a comment or topic)? After all, Habr does not undertake to report changes in personal messages or by email. Habr does not even undertake to make announcements of changes or to allocate them in the Treaty. Setting the date of the Treaty’s revision doesn’t save much, because the “error” in the date will not have special legal significance.
A unilateral change in the terms of the Agreement (clause 9.1), when the party to the contract is an individual, not an entrepreneur, may in principle be called into question (legal opinions differ), and if they are not notified about them ...
I believe that Habr, in the event of changes, will still notify the signatories of the Email Agreement or at least through Habr's personal messages.
3.2. It cannot but surprise the provision that disputes under the Agreement are settled in the arbitration court (clause 5.2). After all, disputes with authors (individuals) in principle cannot be considered in arbitration court, unless the author is an individual entrepreneur (and that is controversial), they are considered in a court of general jurisdiction (so-called civil courts).
3.3. Some definitions at the beginning of the Agreement seem to be clearly unnecessary, some are not entirely clear - for example, there is a website, and there is a website; rules on force majeure (Art. 7), which are already regulated by law (Civil Code). But this is more a question of legal technology, as you like. However, the thought flashes in my head whether the volume is not intentionally inflated so that it is more difficult to notice the key points.
4.1. For myself, I have yet decided not to accept the PPA (the reasons are higher).
4.2. Read carefully the agreement on the Internet, do not put a check mark without rash, without having read the rules, because Russia is finally entering the stage when electronic documents are recognized as legally relevant.
Previously, they were given legal force by signing a so-called. an analog of a handwritten signature (I wrote about it in detail with the adduction of court practice in the legal commentaries “Concluding an Agreement in Electronic Form” (type this in the search and add “Vadim Kolosov” - he will give out a link), however many, even lawyers, forgot about these Now, with the entry into force of the new wording of the law on electronic signature from April 8, 2011 (type in the search engine the Law on Electronic Signature - a new milestone in the development of electronic document management), to get to my article), it is expressly stipulated that isyu can be considered and password (simple electronic signature).
And although the Agreement uses the term “analogue of a handwritten signature”, and not “a simple electronic signature”, since it was drafted and posted on the site during the period when the new law on electronic signature was not yet in force, the Contract still meets the requirements of this law (in terms of signing it with us), and the difference is only in the term used, which, however, should not affect the legal force
Attention : the answer of the lawyer Habr
UPDATE 04/26/2011 : a request was received from Habr's leadership to remove all topics where there are links to my site (where I link my site). The requirement, of course, in my opinion, is not based on the Habr's rules. And in general, it became clear that the good intentions associated with the PPA and an attempt to draw attention to it in order to do even better, to be an example for imitation, Habra is not needed. And apparently, this is exactly how the task was set before the lawyers - to make an agreement to protect the service as much as possible, otherwise I cannot explain the behavior of the management and aggression to myself.
I, it turns out, this topic pripyaril my services, "on the bones" Habr.
In order to check how far the management’s interpretation of its own rules can go, I also remove links in this thread and apologize for possible difficulties in finding previously linked articles. Well, if suddenly this topic disappears, we will know the reason!
I got acquainted with the Rules , and the conditions are very good, in the style of Habr. And I wanted to put a tick that I accept, but ... I saw the second tick about agreement with the terms of the agreement, which is hidden under the link.
In other circumstances, I might not even read the agreement, although I am a lawyer, because for me, as it seemed to me, in human terms, the essence of the agreement was set forth in the Rules, why read the legal text, but it was not there !
What are the pitfalls of the Habrovsky Public Proposal for concluding an Author's Order Contract (hereinafter referred to as the Contract), we will consider below.
1. Key points of PPA
1.1. The first thing that confuses - the subject of the contract. The user undertakes on the instructions of Habrahabr to perform work on the creation of a work (Section 2.1). Which task? Now Habr will give users tasks ? In accordance with the Agreement, Habr has the right to do this, and the user will be obliged to fulfill the task, and in case of non-compliance, Habr will be able to recover his expenses related to the non-compliance. Although clause 3.2.1 allows us to choose “the subject of the work and the style, the genre and the volume of its work”.
')
1.2. No less important is the rule on the complete transfer of the exclusive right to a work created by the user . From a legal point of view, this means that we, of course, retain the status of the author, but lose all and any opportunity to use our work. Including we lose the opportunity to use it ourselves - for example, place it on our website.
Rights are considered to have been transferred at the time of posting by you (clause 1.12).
Contradiction? After all, the Rules say that “participating in the program are distributed under the license Creative Commons Attribution 3.0 Unported (CC BY 3.0)”. Why not choose a scheme in which we choose to distribute our post under the specified license? Why we are not given the right to change our mind with the appropriate right of Habr to remove such a post (and even to demand the remuneration paid for it)?
Ok, if Habr wants to control the further fate of the post (which can, in principle, be recognized as a fair desire - in order to be predictable and preserve the accumulated content), then why not do this by obtaining from us, the authors, an exclusive license? Why deprive us of all the rights to use our work?
After all, we do not have the right to regain our rights if Habr decides to change the terms of distribution of our works.
I will note that nothing prevents Habra from changing his mind at any moment in terms of the distribution conditions of our works, since according to the Contract Habr receives ALL the rights to any disposal and use of the work. In addition, Habr, by the way, does not undertake anywhere and does not directly allow any person to use such topics under the terms of the CCA 3.0, the specified line in the Rules is not enough - it is not obligatory for Habr. It is rather a “goodwill gesture”.
1.3. For the entire period of the Treaty, no matter how many articles we publish, we get 1000 rubles, not for each work, but for all and any.
In the absence of a clear definition of the terms of the Treaty and / or the scope of the author’s responsibility for writing articles, a serious question arises as to the validity of this provision. However, this plays into our hands. After all, if the contract does not determine its price, then it is considered to be non-concluded , which can give the signatory a chance to challenge the validity of the Treaty in the future. Although it will be difficult.
1.4. They can not help but strain, or at least not surprise with their irrelevance, the provisions that require confidentiality from us (clauses 3.2.3, 6.1). Confidentiality of what? Is Habr will provide us with some confidential information? I doubt it. It's just about those articles that we publish here. No confidential information.
1.5. Remember that the use of the translation of someone else's work is allowed only if the contract with the author (rightholder) of the original is concluded ! You can not take any article you like, translate it and post it on your site. Whatever your goals are.
I think Habra would not be superfluous to remind users about this, since our relations are brought to a new legal level.
2. What can save from PPA?
2.1. Acceptance of the Agreement is in accordance with clause 2.2. Active actions, including familiarization with the agreement, although it says there that it is sufficient to put a tick. But if I didn’t open the link at all, but put a tick? Well, this is a question of technology. Although, of course, these issues will sooner or later arise before our court, as they stood up before American justice. In any case, the cost to remember - you do not sign on paper any document that you slip, without reading? True, do not sign.
It’s time to start realizing that now it’s equally safe to do it on the Internet. Read everything carefully, especially when your identity is sufficiently identified, as in Habré . According to clause 2.2.2, you must provide not only details about yourself, including passport data, but also copies of your documents. Otherwise, the agreement is not considered to be concluded. So, before such a presentation you still have the opportunity to withdraw from the Treaty.
It is interesting, by the way, in this connection that the Agreement provides for a penalty for failure to provide the documents specified in clause 2.2.2 on time, but if the Agreement is not concluded without these documents, then how is it possible to collect the penalty at all? (A rhetorical question.)
2.2. The remuneration condition can be considered inconsistent, and the Agreement, accordingly, not concluded (discussed above).
2.3. The contract regulates in detail and correctly the issue of its signing on our part, but in no way determines how the Agreement is signed by Habr. We do not see a handwritten signature, and accordingly, it should be signed as provided by the contract itself in accordance with the requirements of the law (according to the previously existing law - an analog of a handwritten signature, now - an analog of a handwritten signature or an electronic signature), but we do not find rules in the Contract regulating the signing by Habr. Thus, the Agreement placed on the Habr website is not signed by the service, and therefore there is no properly executed offer . Nothing to accept.
This Agreement cannot then be admissible as written evidence, since according to the Civil Code, copyright agreements must be concluded in writing, failure to comply with the form - shall entail the invalidity of the agreement.
3. On trifles
3.1. Clause 3.2.4 and similar standards on other services cannot but surprise. It is our responsibility to independently monitor any changes . What does this mean? Do I have to re-read the entire Agreement every time I access Habr (or at least before each publication of a comment or topic)? After all, Habr does not undertake to report changes in personal messages or by email. Habr does not even undertake to make announcements of changes or to allocate them in the Treaty. Setting the date of the Treaty’s revision doesn’t save much, because the “error” in the date will not have special legal significance.
A unilateral change in the terms of the Agreement (clause 9.1), when the party to the contract is an individual, not an entrepreneur, may in principle be called into question (legal opinions differ), and if they are not notified about them ...
I believe that Habr, in the event of changes, will still notify the signatories of the Email Agreement or at least through Habr's personal messages.
3.2. It cannot but surprise the provision that disputes under the Agreement are settled in the arbitration court (clause 5.2). After all, disputes with authors (individuals) in principle cannot be considered in arbitration court, unless the author is an individual entrepreneur (and that is controversial), they are considered in a court of general jurisdiction (so-called civil courts).
3.3. Some definitions at the beginning of the Agreement seem to be clearly unnecessary, some are not entirely clear - for example, there is a website, and there is a website; rules on force majeure (Art. 7), which are already regulated by law (Civil Code). But this is more a question of legal technology, as you like. However, the thought flashes in my head whether the volume is not intentionally inflated so that it is more difficult to notice the key points.
4. Conclusions
4.1. For myself, I have yet decided not to accept the PPA (the reasons are higher).
4.2. Read carefully the agreement on the Internet, do not put a check mark without rash, without having read the rules, because Russia is finally entering the stage when electronic documents are recognized as legally relevant.
Previously, they were given legal force by signing a so-called. an analog of a handwritten signature (I wrote about it in detail with the adduction of court practice in the legal commentaries “Concluding an Agreement in Electronic Form” (type this in the search and add “Vadim Kolosov” - he will give out a link), however many, even lawyers, forgot about these Now, with the entry into force of the new wording of the law on electronic signature from April 8, 2011 (type in the search engine the Law on Electronic Signature - a new milestone in the development of electronic document management), to get to my article), it is expressly stipulated that isyu can be considered and password (simple electronic signature).
And although the Agreement uses the term “analogue of a handwritten signature”, and not “a simple electronic signature”, since it was drafted and posted on the site during the period when the new law on electronic signature was not yet in force, the Contract still meets the requirements of this law (in terms of signing it with us), and the difference is only in the term used, which, however, should not affect the legal force
Attention : the answer of the lawyer Habr
UPDATE 04/26/2011 : a request was received from Habr's leadership to remove all topics where there are links to my site (where I link my site). The requirement, of course, in my opinion, is not based on the Habr's rules. And in general, it became clear that the good intentions associated with the PPA and an attempt to draw attention to it in order to do even better, to be an example for imitation, Habra is not needed. And apparently, this is exactly how the task was set before the lawyers - to make an agreement to protect the service as much as possible, otherwise I cannot explain the behavior of the management and aggression to myself.
I, it turns out, this topic pripyaril my services, "on the bones" Habr.
In order to check how far the management’s interpretation of its own rules can go, I also remove links in this thread and apologize for possible difficulties in finding previously linked articles. Well, if suddenly this topic disappears, we will know the reason!
Source: https://habr.com/ru/post/117662/
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