Bait & Switch- The Two Terms of Agreement on The New England Foundation For The Arts Website
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In 2007, I became aware of the unusual claim over artists property rights found in the Terms of Agreement for The New England Foundation For The Arts, which distributes grant money to artists, much of it sourced in the National Foundation For The Arts federal government program but NEFA is not a government agency- it is that new breed of entity known as the public-private relationship and partners with all the state art bureaucracies in New England, which also serve as channels of distribution for NEFA grants, but the state bureaucracies do not have a terms of agreement such as that found on NEFA.
When I read the Terms of Agreement in 2007, I was shocked and brought it to the attention of the Boothbay Art Foundation whose legal council looked at it and expressed no disagreement with my view but dismissed it as a Terms of Agreement which would never stand up in a court of law.
Since then I have periodically been in email correspondence about the Terms of Agreement with NEFA but until very recently nothing changed. The most recent conversation was in October 2013 with The Maine Arts Commission concerning NEFA associating with The University of Maine to present a workshop on intellectual property rights.
NEFA makes claims over intellectual property rights of work, not only published but also deep linked through its website. The statute for the University of Maine corporation, an instrumentality of the State of Maine includes claims to ownership of intellectual property rights. Both parties are examples of instances in which the individual creator of the works needs to be wary of claims that these two powerful institutions are asserting. The claims may or may not stand up in a court of law, but the institutions will likely have deeper pockets to fight a legal battle than the individual.
And so, as unpopular as it may be to question the ethics of organizations distributing grant money to the art world, I am publishing this here because I believe that we as a society based in freedom of the individual need to be questioning why NEFA is so obstinate about NOT changing the Terms of Agreement, which I have been questioning for seven years- and why suddenly after seven years there are now two terms of agreement- the one which has long been in place and a new one which satisfies the same standards of fair business that are found in Adobe and Google Term of Agreement.
The very existence of two terms of agreement, one fair by free enterprise standards, and the other claiming unjustified ownership of intellectual property rights is evidence that NEFA knows exactly what it is doing, which only becomes apparent to the general public if one examines the terms with the scrutiny of a detective. Most do not and so I am offering my own such examination of the double terms found on the NEFA website and submitting that it is the age old bait & switch at work.
The new and fair Terms of Agreement applies only to listing one’s information in the data base. When using the website in any manner- ever so minor- for all of an instant- constitutes agreement to the Terms of Agreement which has been solidly in place since at least 2007- this according to the deeming authority of the powerful public-private relationship which is The New England Foundation for the Arts.
According to what NEFA so deems, one does not even have to click on the Terms of Agreement found at the bottom of the page to have agreed to its terms. All one has to do is make one search on their website and according to NEFA, that constitutes that you have agreed to the Terms for using their website. My advice- avoid NEFA at all costs. The same grants that they distribute can likely be found on the New England state art bureaucracy websites. I speculate that the reason for the difference goes to the difference between laws regulating state and private entities. The public-private relationship offers a convenient route around both, perhaps not quite legal- but whose watching?
The age of the internet discourages Terms of Agreements as a two way street. Online Terms of Agreements are presented on a take them or leave them basis , which works out fairly in many cases. Google and Adobe present fair agreements. The regional quasi non-governmental art foundation- the New England Foundation for the Arts is exploitative- During the course of a recent dialogue it came out that NEFA now apparently publishes two Terms of Agreement- one which displays when a person registers and another in the footer. The one which displays upon registration is new to my knowledge and much closer to the Google and Adobe models which limit the rights of the organization over what is published by participants to what is needed by the organization to provide the services offered. The terms of Agreement in the footer is the same as it has been when I first encountered it in 2007. I discussed my objections HERE
BOTH Terms of Agreement include the paragraph of the title Integration and Conflicting Terms. : The only difference is that in the original agreement the New England Foundation For the Arts site is identified and in the new agreement – the one which dispalys when one registers the words are “this site” , The web address for the new terms of agreement is http://www.creativeground.org/terms-use , making “this site” equivalent to creativeground.org which describes itself as “A project of the New England Foundation for the Arts (NEFA)”- the project being “New England’s Creative Economy Directory”
So it is fair to say that the new terms of Agreement is the ultimate governing contract for the directory listing, while the Terms of Agreement found in the footer of the New England Foundation For The Arts website is the ultimate governing authority for NEFA. The difference between the two is that one is a directory of names and addresses and the other manages “grants, convenings, online tools, and research” and so it is fair to say that if one merely enters one’s information in a data base, one is governed by the Creative Ground Terms of Agreement. Whenever one uses the latter resources, one is governed by the NEFA terms of agreement – this of course being my layman’s analysis and interpretation, which is all most have when deciding whether to agree to the terms.
Commentary Compare this to almost the same paragraph in the Terms of Agreement for NEFA and you will find that there is an extra set of actions included in the NEFA terms which are“otherwise accessing or using the site ” placed after “by submitting a search request if you are only performing searches on the site“, The latter sentence is almost identical to the one in the CommonGround Terms which reads BY SUBMITTING A SEARCH REQUEST IF YOU ARE ONLY PERFORMING SEARCHES ON THE CREATIVEGROUND SITE, This is further evidence that the Terms of Agreement which opens on registration applies only to the directory listing for which there is only one function available- the search function of the directory- when using any another function such as searching for grant information, the NEFA Terms of Agreement apply, but for those not paying careful attention to all these details, they might believe that the Terms of Agreement that pop up when registering for the directory are the Terms of Agreement for the entire site, which is an innovative application of the age old bait and switch.
In the paragraph titled “Integration and Conflicting Terms, there is a reversal in the use of specific and general identifiers. Now the CreativeGround Terms of Agreement uses the general identifier “this site” while the NEFA Terms of Agreement uses the specific identifier for NEFA. The use of general and specific identifiers is reversed in the NEFA Terms of Agreement for the same section- No Accident! When you go to the CreativeGround About Page, it clearly identifies Creative Ground as a project of NEFA and the page is signed by the The CreativeGround Team at NEFA.
License. By submitting any content to Our site, You grant to Us, until revoked by you, a royalty-free, non-exclusive, license only to use the content in a non-commercial manner as We deem reasonably necessary for the operation, administration and promotion of this site.
Commentary The placement of the words BY CLICKING “I AGREE” at the beginning of the section below ( found at top of page), lends the impression that agreeing to the terms requires clicking “I Agree”. However a comma is used to separate sets of actions, all of which constitute agreement to the terms, ie- “by submitting a search request if you are only performing searches on the site“- or by “otherwise accessing or using the site “ means that you have read and agree to the terms, which is to say, even if you have never clicked on the terms when you use the sites search function, NEFA is declaring that your action of using the search function is admittance to having read the terms and agreeing to them ! Why are they doing this?
IF YOU ARE A REGISTERED USER, YOU MAY BE NOTIFIED VIA E-MAIL IF THIS AGREEMENT IS AMENDED OR MODIFIED. IF YOU ARE A USER OF THE SITE WHO ONLY PERFORMS SEARCHES ON IT, WE WILL BE UNABLE TO NOTIFY YOU OF ANY CHANGES. REGARDLESS OF WHETHER YOU ARE REGISTERED OR NOT, HOWEVER, ANY USE OF THE SITE BY YOU AFTER ANY SUCH AMENDMENTS OR MODIFICATIONS TO THE AGREEMENT SHALL BE DEEMED ACCEPTANCE OF THE MOST CURRENT VERSION OF THIS AGREEMENT.
8. License. By submitting any content to Our site, You grant to Us a perpetual, unlimited, irrevocable, royalty-free, non-exclusive, assignable, and worldwide license, to make, copy, perform, publish, display, distribute, transmit, translate, modify, prepare derivative works and use the content in other works in any form, media, or technology now known or hereinafter developed for the full term of any rights that may exist in that content. You also agree to waive and never assert any moral rights that You may have in the content submitted to Us.
Few will want to take heed and perhaps there will be no price to pay for that but these kind of Terms of Agreement do not stubbornly persist, year after year, for no reason what so ever. I do not know if the NEFA terms of agreement ever pops up when one goes to use the functions of the NEFA website, but in my opinion the small change of wording in paragraph 18 had to be intentional and it uses the term “this site” to identify that the terms apply to CreativeGround.org. Why is “Creative Ground.org” not stated, corresponding to the way The New England Foundation For The Arts website is identified in the Terms of Agreement for the NEFA website? It is traditional in legal contracts to include definitions but there is no definition given for the term “this site“. I submit the answer is in service of non-transparency. Whenever there exists evidence of a concerted effort to protect non-transparency, the question “Why?” should be taken very seriously.-
The statement at the top of both Terms of Agreement is declaring that the user does not have to click “I AGREE” to have agreed to the terms- he just has to make any minor use the site to agree to the terms- as so deemed by NEFA and the part of the site that the user will make use of are governed not by the CommonGround.org agreement but by the NEFA agreement.
The new development is worse than before- most people will not take a close look. I had to take both paragraph 18’s and compare them side by side to figure out that there was a subtle but significant difference between them. Most users, when reading the Terms of Agreement that pops up when one registers will believe that is the agreement for the NEFA website. Fewer will click at the link in the footer. The section at the top which begins with “by clicking “I Agree” is likely to be skimmed and not carefully examined and so the full meaning will be missed. It is quite a devious bait & switch that NEFA is pulling on the public which their non-profit foundation purports to serve.
This seems like a contract writ by Kafka and hardly something that would stand up in courts in the United States of America in which I have lived- but the USA of the past is changing rapidly these days and the Terms of Agreement to which NEFA has obstinately held tight- seems as if planned to fall into perfect step with a new world order.