Boing Boing blogger Xeni Jardin responded to the recent Valleywag post wrapping up a disagreement between YouTube and several writers upset by its Terms of Use. While Valleywag thinks agreement is a lost cause until certain people tone down the rhetoric, in the interest of fairness, here's Xeni's e-mailed response and my reply. For the record, Xeni is awesome, and so is her work.

http://www.valleywag.com/tech/youtube/y…

How disappointing it was to see such an inaccurate item on Valleywag.

I hope this doesn't seem rude, but I'm ccing some people who've been
involved in this discussion, directly and indirectly.

Last Thursday, at 9:07am PT, I posted an excerpt of Wired News
blogger Eliot Van Buskirk's analysis of the YouTube Terms and
Conditions. As Eliot wrote in his post, it is customary when blogging
about a legal document not to post the full text of lengthy
lawyerese, but rather to excerpt the parts relevant to the discussion
at hand. Both Eliot's post and the BoingBoing post that followed
linked to the entire T&C, to provide context. No conspiracy to hide
anything here.

I updated the BB post a number of times on Thursday, attaching some
reader comments which were critical of YouTube's policy, and others
that weren't. That's what we do on BoingBoing, all the time. What we
produce is more like a conversation than a permanently fixed
document. We're not the "etched stone tablets of wonderful things,"
we're a blog, and that's what blogs do.

Despite having been invited to respond early in the day, YouTube only
contacted me with a statement at 7:29PM on Thursday, hours after I'd
posted a second item with further analysis from the EFF's Jason
Schultz, and others. But I posted YouTube's reply within five minutes
of receiving it. YouTube's spokesperson thanked me for this, and
expressed appreciation for the wide range of user comments we'd also
published in the interest of broad discourse.

YouTube didn't spank anyone here. I invited them to reply, and
eventually they did, but not with any points we'd failed to cover
already. None of this "actually negated the original story," as you
wrote — but broadened it.

I'm not a lawyer, but the heart of what concerned many about the
YouTube T&C is well-summarized on Violet Blue's blog today:

"[YouTube does] have a TOU that effectively forces
users to remove their content in order to know they
completely control what happens with their
video/images/music. If you want your full rights,
the way to enforce ownership is to delete your
videos from the service."

Or, as Van Buskirk wrote in the comments section of his original
"Listening Post" item:

"The fact that YouTube is not required to alert you
to when they use your content, means that they
can use your content before you can remove it.
It's kinda moot to remove it from the site after
they've already used it."

And contrary what you wrote, YouTube's spokesperson never told us
that the T&C reported as newly revised by Wired News (and referenced
as such on BoingBoing) was anything but that. It seems odd that
YouTube's spokesperson would fail to point out something so
significant, if this were indeed old news as you maintain.

Fortunately for all of us, standards of business practice on the
internet tend to evolve over time. When people demand greater
clarity, flexibility, and transparency, and when those same people
have opportunities to talk back to companies about what seems fair
and what doesn't, these standards tend to evolve for the better. I
believe that honest, well-researched discourse online is essential to
this evolution.

I believe companies like YouTube that rely on user-submitted content
have a responsibility to explain in plain language what they do and
don't plan to do with user content. I believe these companies also
owe it to users to disclose clearly what information they may share
with government and law enforcement, under what circumstances. I
believe these companies should also clearly state what constitutes
"adult" or "obscene" material. I believe all of these types of
policies are too often ill-defined, and I believe people have a right
to expect better.

And I believe all of that constitutes significantly more than "no
story," as you wrote.

You are of course welcome to update Valleywag with the content of
this email, though I'll understand if you don't. We don't all believe
in the same things.

Xeni Jardin

From: Nick Douglas, Valleywag
To: Xeni Jardin, Boing Boing

I strongly disagree about most of these points and believe you're sidestepping the issue that you never put YouTube's response at the top of a post, while you put anti-YouTube information on the tops of two posts.

The language used in " YouTube's new policy says: we own your content" is misleading and implies a more pernicious ToU, like that of Podshow. By not picking the right battles, we could all step into the trap of extremism and be written off when a real issue demands attention.

I don't want to shut down this discussion, but I'm afraid any reply you make has to be our last about the issue, since we're both very busy with other things. With your permission, I'll post your previous e-mail on Valleywag, possibly with my above reply.