I wrote this message originally for Stephen Francoeur, a reference librarian at Baruch College in New York and author of the blog, Digital Reference. I thought it would be good to post in order to open a wider conversation.
I am not an attorney and am not qualified to give legal advice or to interpret legal documents. If you want to answer the question, "does IM reference violate Terms of Service agreements of commercial instant messaging services?", you are best off getting an opinion from a licensed attorney.
As a layperson, it appears to me that Terms of Service agreements for commercial instant messaging services disallow libraries to offer IM reference.
Microsoft's .NET messenger is the most obvious example.
"We provide the Service for your personal use. You may use the Service while you are at work, but you may not use the Service to conduct business without a separate written contract with Microsoft."
(http://messenger.msn.com/help/terms.aspx, 7/11/2007).
AOL says,
"You may use Content available on the AIM Products only for personal, non-commercial purposes."
(http://www.aim.com/tos/tos.adp, 7/11/2007)
Yahoo!'s ToS says what you can do, but I can't find the part where it says what you can't do.
"You may use the Software and access the Service for your own noncommercial use or benefit."
(http://info.yahoo.com/legal/us/yahoo/messenger/messengertos/messengertos-279.html, 7/11/2007)
At ALA Annual last month, someone at one of the VR sessions mentioned that she had heard that your account gets turned off if 1,000 people add you as a buddy. This may be one of the ways that IM services decide who is operating a non-personal or commercial service.
In addition, all three of the Terms of Service agreements appear to prohibit using IM through unlicensed third parties. It's not clear to me if third parties like Meebo, Trillian and Pidgin (formerly GAIM) license access to the network or not. Third-party applications may boost use IM networks, so companies may be reluctant to enforce this rule. Pratically, they can't bust everyone who is using GAIM or Trillian, but corporations of this size could easily shut down a small company or open-source community.
Lucky for us, no one wants to be the big corporation cracking the whip at libraries. Still, Facebook set an interesting precedent last year when they removed libraries' (and other institutions') profiles.
I think commercial IM providers will only begin to shut down those accounts used for IM reference and those used by people using third-party software if and when the corporations decide it's in their interest. Until then, they'll probably leave the option open and wait to see what their competitors will do.
Short-term, libraries are probably okay with offering IM reference. Far out there, I'd like to see each of them adopt XMPP (Jabber) as a cross-platform, cross-service free and open standard for instant messaging. IM should be free (as in To Be You and Me).
IM services likely to leave libraries alone
First, thanks for all that great research! The Facebook example is a useful reminder that we need to be careful of the terms of service of the many web tools we use on behalf of our libraries. It seems like Facebook thought it was protecting its users from the predations of marketers posing as people (see this exchange of emails on Web4Lib from last September and this post by Brian Matthews at the Ubiquitous Librarian). I wonder if IM services are as "protective" of their users as Facebook wants to think it was.
Viva commercial IM reference!
Excellent digging, Caleb. I expect that we'll be discussing this issue in a few weeks at the Collaborative Virtual Reference Symposium. I can't say that my current answers will be satisfying, but I do hope my library and the many others out there will be allowed to continue our current outreach through commercial IM media.
Wouldn't our services only
Wouldn't our services only be considered commercial if we charged a fee? I really think that is what is meant by those terms. I don't think they are looking to shut down reference librarians.
Which is the Boolean in
Which is the Boolean in 'personal, non-commercial'? Does the use of IM have to be ('personal' AND 'non-commercial') or is it ('personal' OR 'non-commercial')? This is the question we would maybe have to go to court over when they ban our screen names.
Again, I don't have the answer, but I can agree that they probably aren't looking to shut down reference services. I only mean to point out that they might have the legal backing to cut us off if they so desired.
It's something we need to be aware of when we offer IM reference service, especially for those of us thinking about building or otherwise putting scarce library funds towards robust IM-routing queues to enable collaborative IM. If we are going to rely on corporate third parties for services, we have to expect that now and then they'll force us to play by their rules.
Nah...
I can't see companies banning or blocking libraries' accounts because we're using them to communicate with the public. We use these companies' free email services to provide email reference (well, some libraries do, anyway). Many small business and organizations do that, especially non-profits. I don't see how IM would be treated any differently by their corporate lawyers. Not only do I not see these companies wanting to be in the public eye for cracking the whip on libraries, but I don't think that they have any motivation for doing so. If it ever happened I would be right shocked...and keep in mind that this is coming from Sarah, the anti-corporation girl, so if there was fault to be found I would be only happy to find it.
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