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Fueling the resistance
Hijacking affiliate links 
4th-Mar-2010 02:32 pm - Hijacking affiliate links
Skittish Eclipse
I've been given a heads up that has done some excellent sleuthing and investigation into hijacked LJ affiliate links:

What is LJ doing to my links?
What is LJ doing to my links? Part 2
What is LJ doing to my links? Part 3

Expect this post to be update through the day as I find out more and come up with a good summary.

ETA: No good summary, but I feel like I should say code got taken down, etc etc, business as usual.
5th-Mar-2010 05:27 pm (UTC)
do you read the things you sign or do you just blindly sign contracts too?

from tos:

journal content:

LiveJournal reserves the right, without limitation except by law, to serve any user Content on the web, through the downloadable clients and otherwise. LiveJournal also reserves the right, without limitation, to resell any portion of a user's LiveJournal back to that individual;
You acknowledge that LiveJournal does not pre-screen Content, but that LiveJournal and its designees shall have the right (but not the obligation) in their sole discretion to remove or refuse to remove any Content that is available through the Service. Without limiting the foregoing, LiveJournal and its designates shall have the right, but not the obligation, to remove any content that violates the TOS or is otherwise objectionable, or that infringes or is alleged to infringe intellectual property rights. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content. Furthermore, LiveJournal reserves the right to limit access to your journal, if found in violation of the TOS, including without limitation the Member Conduct described below, by removing the journal and related user information from the member directory, search engine, and all other methods used in conjunction with finding LiveJournal's users.

member conduct:

Engage in commercial activities within LiveJournal or on behalf of LiveJournal without prior approval. This includes, but is not limited to, the following activities:
Displaying a banner that is designed to profit you or any other business or organization; and
Displaying banners for services that provide cash or cash-equivalent prizes to users in exchange for hyperlinks to their web sites.
5th-Mar-2010 05:34 pm (UTC)
Please note that this comment could have been made without the lead in personal insult, and in the future, comments of yours will be expected to be a liiiiittle further from that edge to be unscreened. Giving out contradictory information, discourse, and discussion and whatnot is fine, but it doesn't have to be a slur.
5th-Mar-2010 05:42 pm (UTC)
how is it a slur? i am honestly asking because i would really like to know.

i am just baffled by all the people on here who either did not read the tos, or somehow think that it is acceptable to have not read the tos (there are people in this thread actually supporting the idea that reading the tos of anything is a waste of time or otherwise not necessary) when in the tos in several sections it very clearly spells out that you should not be using lj for your own personal profit. sure, in many cases toses are top-heavy with legalese, but it's not that hard to figure out that "the service" is always referring to lj, etc, they aren't using very deep legalese that is somehow incomprehensible to normal english speaking people. i just don't understand why people would admit to doing stuff that goes directly against the rules in a thread where ljabuse and support are obviously watching.

is this whole code change thing shady? sure. but it is well-within the rights lj has reserved for itself, and really breaks nothing other than services which were banned or otherwise against the rules to begin with.
5th-Mar-2010 05:59 pm (UTC)
I don't believe that posting affiliate links is against Livejournal's TOS. You have quoted language from the TOS talking about banner ads; those are not the same thing. Your argument that users were violating the TOS and shouldn't expect any sympathy as a result, just doesn't hang together. Nobody promised not to post affiliate links on Livejournal.

However, if Livejournal agreed with your interpretation and thought, correctly or incorrectly, that posting affiliate links were a TOS violation, then they'd have treated it as one - by just removing the affiliate IDs, and/or punishing the users who tried to post such links. That's not what Livejournal did. What Livejournal did was to add its own affiliate links, without telling the users and indeed with some effort (the code obfuscation) to prevent users from finding out. The priority was on putting in Livejournal's ID, not on taking out the users'; indeed, it's been claimed that they didn't even know they were taking out the users' IDs. Livejournal wasn't responding to a real or imagined TOS violation; they were doing something quite different.
5th-Mar-2010 06:06 pm (UTC)
oh, i agree, it is super shady the way they went about it. but my point is, they are perfectly entitled to do this with their service, and in numerous parts of the tos they spell out that they may in fact at some time do this.

and as for the tos thing, this is one of the situations where it might be good to speak fluent legalese (absolutely not making a slur on you) because you may have not noticed this line where they CYAed:

Engage in commercial activities within LiveJournal or on behalf of LiveJournal without prior approval. This includes, but is not limited to, the following activities:
Displaying a banner that is designed to profit you or any other business or organization; and
Displaying banners for services that provide cash or cash-equivalent prizes to users in exchange for hyperlinks to their web sites.

this means that yes, they specifically mentioned banner ads, but that line about includes but is not limited to infers that any commercial activity in lj is banned, affil links, etc included. now, if this went to court, lawyers could make the case that the economic activity happens offsite, however its a pretty classic case of advertising fosters sales so i doubt that would stick.

this in no way means that i think lj will *do* this, rm affil links, etc. that was never my point. my point is that, all thoughts of community, etc, aside, lj covered this situation several times in the tos that everyone agrees to abide by when they sign up. it is not lj's fault that people skimmed over these sections. so yes, the deployment of this is incredibly shady, but technically you all signed up for this from the get-go.

5th-Mar-2010 06:19 pm (UTC)
Section XIV of the TOS includes the statements "All Content posted to LiveJournal in any way, is the responsibility and property of the author." and "LiveJournal claims no ownership or control over any Content posted by its users." Those could be argued, with strength equal to your present claim, to forbid Livejournal from modifying links posted by users except by blocking them entirely. By your logic, having clearly broken its contractual obligations, Livejournal now entirely deserves absolutely any action whatsoever that users may care to take. They broke their OMG LEGALLY BINDING CONTRACT!!!! Note, too, that since they wrote that contract themselves, none of the "But we didn't know we'd agreed to it!" excuses one might invent, can be applied to Livejournal.

Ultrabroad interpretation of contracts, to the exclusion of any other bounds on behaviour, doesn't work. Seth Finkelstein said it in more detail better than I could.
5th-Mar-2010 06:16 pm (UTC)
It's kinda on the edge--if it was really aggressive I wouldn't have unscreened it at all. (For instance, there's a reply to this comment already that isn't going to be unscreened, because it's more aggressive.) If you want an example of a way to phrase it that isn't towards the personal, one instance would be more like "I don't think people should sign contracts without reading them--or use sites without reading the TOS"--putting it back into the realm . I know the difference seems trivial, but it helps make a difference here in the land of no_lj_ads-wankavania to make things a little less heated.

However, LJ (like every other (esp free) service on the internet) puts things in its TOS that give it really, really broad ranging implications, that they never intend to use--on purpose. For instance, "LiveJournal also reserves the right, without limitation, to resell any portion of a user's LiveJournal back to that individual" along with other clauses means LJ could lock up every single journal's contents, and not give the contents to the person until that person paid LJ $100 dollars! (Or, if the user preferred, just deleting the content.) I mean, sure most everybody would complain, but according to the TOS LJ is totally within their rights and technically we all signed up for it. But the clause wasn't meant for that; it was meant more so that things like LJ's deal with Blurb could work.

I think this is kind of a less extreme example of that, in that those sections of the TOS weren't designed to prevent people like elisa_rolle from making some book buying money every month. She's a paying member, she's contributing positively to the site with her content, yadda yadda. They don't want to TOS her--as you can see from the staff reaction here and in news, they presumably didn't even want to replace existing affiliate ids to begin with. They're probably more designed to make sure that the site isn't a haven for people spamming or making money at the expense of the system or trawling communities or abusing the system--and they don't want to have to waffle with someone about what's considered abuse when they do decided to act.

They also probably don't want to be considered responsible for any perceived lost income--which applies here, in that I doubt they're going to make much if any restitution like people are clamoring for, heh. I've been TOS quoting people about that one myself.

Edited at 2010-03-05 06:35 pm (UTC)
5th-Mar-2010 06:40 pm (UTC)
i definitely definitely understand about tone. i wasn't thinking of anything other than my own inflection in my head when i wrote it, which was more actually questioning and trying to compare.

i also understand about tos stuff, but my point was more like, if we are going to be getting all morally superior here, it is probably good to understand that we were already in the wrong. there are many things that are unenforced in the world legally speaking in many situations. but that doesn't mean that that it automatically means that whatever we decide the interpretation of that is going to be ok. i am trying hard to make my point here without in any way being taken as sarcastic, but it's like trying to have your cake and eat it too. everyone knows jaywalking is illegal, but everyone does it. when the cop writes you a ticket and you go complain before the judge about it, the judge just says, "look, it is illegal. the application still stands despite the fact that it is rarely enforced." i don't think lj will care about some amazon affil links, or links to download a pdf of your own book, or whatever small scale profit that people might get from their ljs, i think everyone knows that that stuff is really in there to be used against spammers, etc. but my point is to all of the people demanding that livejournal do all of this work to see if they lost profits. livejournal doesn't *owe* them anything, and just because they choose to turn a blind eye to that kind of use, doesn't mean that what those people were doing was in the right to begin with.

i just hate when people don't realize that in thinking they were cheated by a system they actually were technically cheating a system first. two wrongs dont make a right, etc. and often people get so caught up in their being wronged, that they don't realize that there can be a viewpoint that what they were doing was wrong to begin with. not that i wish these people ill or that they lose all their money. i would hope something could be resolved that can make everyone happy. but if not, i wanted to point out a possible legitimate reason why there may be another outcome.

also, in another comment where i was saying the same thing to someone, i put the captcha word into the subject field on accident. it wasnt meant to be abusive, i just was tabbing and typing too fast and hit enter reflexively before i could erase
5th-Mar-2010 07:48 pm (UTC)
Thanks for understanding about the tone thing. (My previous comment is so full of sad errors from my spacey cold-inflicted head! I even stopped in midsentence there while explaining) I think all I thought about "gashing found" was "What does that even *mean*", ha. Damn the captchas! If only NLJA didn't get enough Google juice or whatever the heck it was that made it so attractive to the spammers.

I can't say I think of it as cheating the system so much as...not actually being entitled to make money from the system, but in most ways I agree--although I think the person you were originally responding to in this thread was only upset on idealogical grounds, if I remember correctly; I don't think they've been posting affiliate links.

If LJ was starting to enforce the policy like that (or had in previous practices been acting closer to that definition--ie, saying that affiliate links are not in line with our TOS in Support Requests about them as opposed to the malware standard issue answer), and said that nobody should post affiliate links at all, then I think your description would be more accurate. In a lot of ways, LJ's rights are the ones it claims for itself when people complain, and given current staff response, replacing affiliate IDs with LJ's isn't one of them.
5th-Mar-2010 05:50 pm (UTC)
An affiliate link isn't exactly the same thing as a banner, but more importantly, there's more to this issue than legality. What Livejournal did may have been within Livejournal's legal rights. However, it was morally and socially unacceptable. Livejournal violated users' trust. Even if they might win the court case which will never be brought anyway, Livejournal has a problem now because (if anyone still trusted them anyway, which I don't think very many smart people did) there's a good reason for people not to trust Livejournal anymore. It would be in Livejournal's interest to make some effort to regain the trust of the user base - even if they are not legally required to do anything.
5th-Mar-2010 05:59 pm (UTC)
*sigh*. actually it does include that, it says "included but not limited to". they mean affil links as well, they mean any profiting off the site. again:

Engage in commercial activities within LiveJournal or on behalf of LiveJournal without prior approval. This includes, but is not limited to, the following activities:
Displaying a banner that is designed to profit you or any other business or organization; and
Displaying banners for services that provide cash or cash-equivalent prizes to users in exchange for hyperlinks to their web sites.

moral issues aside, the point i am bringing up is that legally regarding to everyone posting here about affil links, lj is perfectly entitled to suspend all of your journals. you agreed not to engage in ANY commercial activities when you signed up. regardless of the moral issues, which only really exist according to your own personal morals, morally i see nothing wrong with any of this, excepting possibly a bit of shadiness in not addressing the code first since it appears to have caused runtime issues on some people's machines. some people take lj to be some sort of safe harbor sacred internet diary site, i see livejournal for what it actually is, a business designed to make money regardless of the feelings of the users. ymmv, etc.

now, if you want to leave lj because they morally offended you, fine, it's your life. but actually, morally, the ones who are trying to cheat lj and circumvent the tos are morally in the wrong.
5th-Mar-2010 06:04 pm (UTC)
Restating your interpretation with the word "morally" inserted several times isn't going to make it any more convincing. But see my other reply. If Livejournal's interpretation of the TOS were the same as yours, then they wouldn't have acted as they did.
5th-Mar-2010 06:10 pm (UTC)
you are the one who is trying to bring morality (whose? yours? mine? societies? livejournals? who on livejournal? do you speak for everyone?) into an argument that should be specifically about whether a service was legally entitled to act in the manner they did. morals really have nothing to do here, but if you want to bring morality into it, the ones in the wrong are the ones trying to lie and cheat an agreement they digitally signed. you are welcome to your own interpretation of morality of course, but going by societies contractual morality, if you contractually agree not to behave in a certain manner somewhere, and then act in precisely that manner while trying to cheat someone, then you are morally in the wrong. by any societies definition. not reading an agreement is not a defense.
6th-Mar-2010 02:56 am (UTC)

Sums it up for me.

It's our content, they say themselves they have no right to mess with it, they messed with it anyway, clearly violating their own TOS, so yeah, you could definitely win this case in court, if you wanted to.

The heck with the other parts of the TOS, the heck with affiliate money being made by a relatively small sub-set of LJers....all LJers, whether making money off their LJs directly or indirectly - or not - got their LJ content interfered with, changed, and rewritten, by LJ.

You can argue about how much anything was changed, but how about this, Your Honor, if it may please the Court: "I added links to my content myself. Those links are part of my content but in violation of their own TOS LJ rewrote those links to point to links of their own choosing that made money for them regardless of whether or not I made a dime off any of those links myself - which in my case, I didn't."


foxfirefey knows I'm just chomping at the bit for this one. LJ's overuse of and their hiding behind never-ending, ever-expanding chunks of legalese is infuriating, and in this case, literally indefensible.
(no subject) - foxfirefey - 2010-03-06 03:21 am (UTC)
(no subject) - anti_aol - 2010-03-06 03:53 am (UTC)
(no subject) - Anonymous - 2010-03-06 03:24 am (UTC)
(no subject) - foxfirefey - 2010-03-06 03:27 am (UTC)
(no subject) - Anonymous - 2010-03-06 04:14 am (UTC)
(no subject) - foxfirefey - 2010-03-07 08:33 am (UTC)
6th-Mar-2010 05:00 am (UTC)
"Included by not limited to" is necessarily that important in this situation. To me, the important words are "commercial activities." You seem to think that it's clear and obvious that anyone would agree that supplying affiliate links is "commercial activity." I'm not so sure that's the case. Even if it were, if you give me an hour, I cam come back to you with easily a thousand pages of cases where a court found that what the drafter of a contract found to be clear and obvious wasn't.

I'm not arguing that the people who lost money due to this should be reimbursed. I'm not saying that LJ was legally prevented from doing this. I'm sure their TOS easily cover doing this, making extra revenue from users who use their site clicking links that were hosted on their site and provided by other uses of the site.

I think it was a really stupid idea, though. I was personally on the fence about paying for a second LJ account or giving the money to another service. Care to guess which way I'm strongly leaning now?
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