Okay, I hate any implication of beating a dead horse - hell, I hate any implication of beating any horse at all...

But since my name has frequently been associated with the project of Submission Agreement revision, I need to explain why I do not endorse this latest version, and why I'm grievously disappointed with it.

In my original "pitch" for revising the Agreement, the goal was to create "a 21st Century Submission Agreement," that would protect the artists as much as deviantART, and actually make DA a more attractive destination on the web than other art sites. That is, an Agreement that would make even the most professional artists comfortable to set up camp here, and enrich us by their presence.

By the standard of protecting artists as much as DA, the new Agreement is not (or barely) any improvement at all. If DA were bought or swallowed up by some larger or more indifferent company, we and our art would all be sitting ducks for whatever whims would occur to them.

Now, not to pick on Daniel, cause I've got no problem with him, but his recent "explanation" of the Agreement falls into the age-old pattern of providing illusory comfort with no substance.

We see this general pattern in defending the Agreement of projecting optimism as if "we can all be chill about this." For instance, Daniel suggests that "As far as the 'notification' portion is concerned a simple statement made to the Helpdesk will probably suffice," even though that is explicitly ruled out by the conditions in 15.c. Is that a nitpick (and unfairly critical of Daniel himself)? Surely. But legal conflicts are determined by nitpicks (and surprisingly unconcerned with fairness).

But moreoever, let's illustrate only one example to show how the overarching defensive strategy frequently fails to rest upon a logical foundation (since administrative defenders rely on this failure of logic so frequently...)

In explanation of 3.e. "Artist acknowledges that Artist will not have any right, title, or interest in any materials with which Artist Materials may be combined or into which all or any portion of Artist Materials may be incorporated," Daniel posits "This means that if your work is used in an interview ... you can't claim any right to the show."

Well, no, that's not what it means. What 3e means is "Artist acknowledges that Artist will not have any right, title, or interest in any materials with which Artist Materials may be combined or into which all or any portion of Artist Materials may be incorporated."

Daniel is instead explaing why it is there, or one aspect of what it means. But that's not the same as its meaning altogether. And we see these kinds of unsubstantial defenses over and over.

To put a harsh point on it, the legal team for some company that's bought deviantART isn't going to care what we think it means, or why it was put there.

If some indifferent company buys DA, they're going to look over the Agreement as a treasure trove of free reign to do with our art as they please.

"Ooooooo, look at 9.b! Not only have these artists signed away any right to hold us accountable for any perceived transgression, they've even agreed to pay our court costs if they choose to challenge us!"

"Ohhhh!, look at the loophole in the Limitation of Rights outlined in 5. We could drive a truck through that! And it explicitly allows for us making money from their art!"

Any lawyer on the buyer's side of this Agreement would have trouble keeping their pants dry to look over this thing.

And any lawyer summoned by an artist to review what rights he's signed away would feel the sinking feeling that could only be described as "Oh shit."

...

My hope for "a 21st Century Submission Agreement" was that we would get, in writing, a profound attitude adjustment from what we've been presented before.

deviantART, on its surface, provides a website on which we can post and share our art. That is why we are here.

deviantART absolutely needs to have a legal agreement that protects it from any negative sanction against what it is supposed to do.

But instead, the Submission Agreement protects deviantART from any negative sanction against virtually anything it *wants* to do. Or anything that another company who swallows deviantART wants to do.

These lawyers were obviously not tasked with protecting the artists to the maximum compatible standard.

In fact, it seems rather that these lawyers were tasked with providing a maximum illusion of comfort without ceding any real protection for artists at all.

To give Joel credit again, he has dismembered this illusion of comfort and artist-indifferent attitude very effectively in this comment, so go read that if I haven't made my point clearly enough.

But to be clear, I'm as sad as I am frustrated.

With this flimsy revision, DA has really missed an opportunity, to be visionary and to live up to its role as the leading art site on the face of the planet.

They've made clear that either they are willfully oblivious to an artist-mother's protective instinct for her art-children...

Or that there is some much deeper agenda at work here, one which we're not told or trusted with, and that we probably wouldn't like the sound of if we were.

Now, some of you might accuse me of being paranoid or hyper-sensitive about this.

I only ask that you hold on before you sling that accusation too recklessly.

Because I haven't even gotten to the Agreement's biggest problem yet...

Nor to this particular revision's most disturbing implication...



To Be Continued...

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Preface, in case you missed it, though it's only tangentially related.

If you'd like to pimp [link] go ahead - this series should be the most important assessment I've ever written.