The debate is on. The gloves are off. Both the Oculus Rift and HTC Vive have now been released, and the fanboy camps are forming. While the comparisons, evaluations and assessments are pretty balanced, Vive seems to ranked slightly higher for quality and experience, while Oculus is proving to be more bang for the buck.
But being LawGeex, we’re more concerned about how the legal terms stack up.
We’ve reviewed the HTC terms, which date back to 2011, and they appear pretty plain vanilla. The big uproar has come from the Oculus terms, which we have investigated and explain below.
Browsewrap Evolution
Users don’t actually sign contracts with Oculus or HTC. They enter into what are called “browsewrap” agreements.
As we explain in our own bodacious Terms of Use, the term “browsewrap” comes from back in the day when software came on disks and was packaged in cardboard boxes wrapped in shrink wrap.
Software companies would print the license terms on the back of the box, and tell people that if they didn’t agree to the terms they shouldn’t tear open the plastic.
When software moved out of the box and online, many software companies switched to “click-wrap” –you had to click an “I agree” button before using or downloading stuff.
And now, people “accept” “browsewrap” terms simply by using online services. No official signature and no clicking on “I agree” required. This is the case for both Oculus and Vive.
If you use it, you agree to it. That’s why it’s so important to read and understand what you’re agreeing to.
It should be noted though, that the further you get from pen-on-parchment to indicate agreement, the more nervous courts get about calling something an actual contract. Our recent blog explains what you can do to improve the odds a court will enforce browsewrap terms for your own business.
Does Facebook Own Your Brain?
Gizmodo took a look at the Oculus Rift Terms of Service (ToS) and found it “super shady.”
While they’ve since updated their review, Gizmodo originally claimed that “Oculus (and basically Facebook) owns creative content” submitted via its platform. The author of the article based this conclusion on the following language in the ToS:
By submitting User Content through the Services, you grant Oculus a worldwide, irrevocable, perpetual (i.e. lasting forever), non-exclusive, transferable, royalty-free and fully sublicensable (i.e. we can grant this right to others) right to use, copy, display, store, adapt, publicly perform and distribute such User Content in connection with the Services.
But that doesn’t actually say that Oculus/Facebook OWN the content, and Gizmodo subsequently issued the following “update”:
Oculus clarified some of the language in their policy for us: they confirmed that they do not claim ownership of any content and IP that is created through Oculus’s services…
Basically, there’s a difference between “ownership” and a license.
USE is not OWNERSHIP. When you say “yes” to “Dude, can I borrow your car?” you’re not automatically saying “yes” to “Dude, can I SELL your car and keep the money?”
A license to “use,” etc. is what lets platforms like Facebook, YouTube, etc. function at all. If they don’t have the right to share the content you post, then they wouldn’t be social platforms – they’d just be private repositories like DropBox.
As Oculus (or probably its lawyer) explained to Gizmodo,
We are not taking ownership. Our terms of service give Oculus a license to user created content so we can enable a full suite of current and future products and services on our platform, like sharing a piece of VR content with a friend. People continue to own the rights to the content and can do whatever they like with it outside of our platform. This is very clear in our terms: “Unless otherwise agreed to, we do not claim any ownership rights in or to your user content.”
Users of Oculus therefore have little to fear when it comes to losing ownership of their own content. Oculus does not own your brain much more than the usual social media platforms do.
Everyone Knows You’re Short, Even in Virtual Reality
Gizmodo was also freaked out about the user information Oculus can collect, including
Information about your physical movements and dimensions when you use a virtual reality headset.
Oculus can then use this information “to send you promotional messages and content and otherwise market to you.”
“This is kind of creepy!” declared Gizmodo.
But unless you never leave your parents’ basement, lots of people can already see your “physical movements and dimensions.” How tall you are isn’t “private” information, at least in your local community. Do you really care if Mark Zuckerberg knows too?
Given the vast quantity of far-more-intimate information people already share about themselves knowingly or unknowingly online, it doesn’t seem all that creepy for Oculus/Facebook to use information about your height and awkwardness to offer you, say, discount coupons for “big-and-tall” stores and dance lessons. Or maybe they’ll just send you a life-size 3D printed model of you for your birthday! Now wouldn’t that be cool?
What should you do with VR?
Virtual reality technology is bringing new opportunities to all areas of the world, from entertainment to healthcare innovation. At the same time, private and public spaces are bridging further and further.
If you’re the type who isn’t using Facebook yet for fear of Facebook owning your personal information then we don’t recommend buying Oculus, or any other online technology for that matter.
For everyone else, the VR world of Oculus doesn’t intrude significantly more into your space than you’ve already agreed to.
Either way, make sure you always read and understand the terms of any product or service you use, whether you’re signing on parchment, paper, click-wrap or browsewrap!
