You May Not Enjoy Grammar, But Is It Worth Giving Away YOUR Content? by @LegallySavvySBO

 

by Susan Burns | Featured Contributor 

Recently I was engaged in a Facebook exchange among a group of successful business women. Someone asked for opinions on using Grammarly—an app that is marketed as “A FREE, ACCURATE GRAMMAR CHECKER BUILT FOR EVERYONE.”

The comments started rolling in: “love it!” “best thing I have used in a long time.” “Cuts my writing time significantly.” And more like that.

I actually had installed the free app a few weeks before to give it a test run. I found it to be a nuisance because that little app was popping up and sticking its grammar-nose in every single thing I wrote. My emails. My blog posts. My word documents. That spelled danger to me, and I immediately deleted it.

Smelling a rat, I checked the Terms of Service (which, admittedly, I should have done first). Here is what I found:

By uploading or entering any User Content, you give Grammarly (and those it works with) a nonexclusive, worldwide, royalty-free and fully-paid, transferable and sublicensable, perpetual, and irrevocable license to copy, store and use your User Content (and, if you are an Authorized User, your Enterprise Subscriber’s User Content) in connection with the provision of the Software and the Services and to improve the algorithms underlying the Software and the Services. (emphasis added)

Here’s what you need to know:

  • Grammarly, Inc. is a Delaware corporation. They include in the definition of “Grammarly” not only the corporation, but also all of its subsidiaries AND other affiliates.
  • The definition of “Software” is “the software.
  • The definition of “Services” is … wait for it … “services.”
  • And, although it is poorly drafted, it seems to be attempting to include any future Software and Services provided by Grammarly, which you recall also means any subsidiary or affiliate.

What does this mean for you?

It means that if you install Grammarly, whether it’s a free service or a paid service, you are specifically giving an unlimited perpetual license to your content to Grammarly and any company they affiliate with and any of their subsidiaries basically for any service they provide now and decide to use in the future.

That means that if you use Grammarly, instead of your own brain or a copy editor, you are no longer the exclusive owner of your content. That also means they can republish, provide to third party affiliates, and use your data and materials any way they see fit.

The bottom line is that Grammarly has access to—and the unlimited, forever—right to use your content. Period.

And, once you install Grammarly, it is everywhere. It pops up in every document you create. Every. Single. One. If you don’t believe me, try it yourself.

Of course, lawyers and other professionals with a confidentiality responsibility to their clients are ethically prohibited from using Grammarly. But even if you don’t have an ethical responsibility to keep information confidential, do you really want to give up the right to your content?

Think about it! And next time, read the fine print. … or call me, and I’ll read it for you.

——————————————————————-

Susan BurnsSusan Burns, Attorney and Business Strategist is the CEO and Founder of Small Business Legal School Ltd.

Susan is a business strategist, attorney, and a champion of big ideas. She believes that a business worth building is a business worth protecting. Her focus is on providing practical legal information to women business owners to support business growth and optimize success. Susan is passionate about leveling the playing field for access to critical legal information that can make or break small businesses.

After 30 years of a diverse background in practicing law — from the largest firm in Minnesota, to in-house general counsel for a global company, and to starting her own firm – and continuously seeing the legal problems that crippled small businesses, Susan decided that there had to be a better way to provide access to critical legal information. She researched, interviewed her clients, surveyed women business owners and then devised a strategy based on survey results. That strategy is Small Business Legal School – teaching women business owners an effective way to support their business success and #CoverYourAssets.

Connect with Susan on Social Media:

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Explore Small Business Legal School and Susan’s boutique private practice:

http://www.smallbusinesslegalschool.com/

http://www.susanburnsllc.com/

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33 Replies to “You May Not Enjoy Grammar, But Is It Worth Giving Away YOUR Content? by @LegallySavvySBO”

  1. R. Writes

    The article hit the nail in the head. I’ve never personally used this tool, but the part about having a legal, government, or some other kind of confidential document saved and stored FOREVER by some unknown companies around the world is mind-boggling.

    What’s more, did you know they are based in Ukraine / Kiev (in addition to having an US location) – as presented in some company related articles or Wikipedia.

    Where is the content stored – hopefully not on an Ukrainian or Russian server?

    I’m not trying to pick on them because similar form of licenses have been used by their competitors. But what’s really important here is the governing country / data protection laws. In the US the laws are – more or less – enforceable, but as far as Eastern Europe is concerned the odds of being successful may not be high at all.

  2. Rory Ni Coileain

    Legally speaking (lawyer for 25+ years) I don’t think they can claim ownership of your e-mails, say, simply because you used their product to check your grammar. It’s like that bogus Facebook post that keeps cropping up every now and then, where by copying and pasting someone thinks they’re denying Facebook permission (under some unrelated portion of the UCC and some incorrect citation to the Berne Convention, if memory serves) to copy or retain any of their content. Grammarly is claiming a limited license, and even if that limited license extends to their subsidiaries, etc., it’s still limited to the terms set forth in the agreement. They can’t even sublicense it — a license is an intellectual property right, and the agreement states that the user retains all intellectual property rights not granted under the terms of the agreement.

  3. Charlene Tess

    This was valuable information. Thank you for writing this article.

    1. Susan Burns[ Post Author ]

      You are most welcome, Charlene.

  4. Pamela Claughton

    Susan, I don’t think you are reading this correctly. The license is limited to use of their service. It seems spelled out pretty clearly to me. Ownership of the IP remains with you.

    I don’t think there is anything unusual in this.

    1. Susan Burns[ Post Author ]

      Pamela,

      Look at how “Service” is defined and then let me know what you think.

      Ownership remains with you. You give them a perpetual license.

      It may not be unusual. That’s not typically a valid legal argument.

      Thank you for your comment.

      Susan

  5. Alan

    I’m not sure why there is a pile-on about “clickbait”. I appreciate this article. I’ll admit it; I did not read the TOS. So thank you, Susan!

    As a writer that uploaded my over 90,000+ words of my manuscript to Grammarly the open-ended rights-grab to my work I granted them via the TOS is frightening.

    Yes, yes, I see the comments about retaining ownership and all that, but we’re still giving Grammarly complete, royalty-free rights to our content, forever!

    Sure, they might not do anything nefarious with it, but the way it’s written, they could. At the very least it would be a costly legal battle… oh, hold on, nope, we waved that right in lieu to binding arbitration.

    This is a TOS that completely protects them and leaves us very exposed.

    You never know what could happen. They could sell or be bought, or they have a leadership change, there are many scenarios that put us at a disadvantage by agreeing to give them way more rights than necessary as currently written in the TOS.

    I wouldn’t submit my manuscript to an agent or publisher that required I give them rights to my work, royalty-free, in perpetuity! Even if they say, don’t worry, you still own it, well, yay, I own it and I have given them the rights to basically do what they want with my manuscript and then I just have to trust them, a company, forever.

    It’s insane. I’ve emailed Grammarly support. They need to re-write the TOS to spell out exactly what they can and cannot do with our content. I.e. publish it themselves, make it public, take your idea, etc. Until then, I will no longer use Grammarly for my manuscripts. Email, fine, they can keep that content, but my freaking manuscript, no way. Thanks again Susan for this heads up!

    1. Susan Burns[ Post Author ]

      Gary, thanks. And, good for you. Keep me posted. I hope they update their terms.

      ~msb

  6. Jim

    This article is fear-mongering clickbait. Their TOS also say they can only use your content to provide you with their service.

    1. Susan Burns

      Jim, thanks. Where does it say that in the TOS?

      And clickbait for what …?

  7. C. Elliot Ritter

    Yet another FUD article by someone who doesn’t know what they’re talking about when it comes to online licenses…

    The rights they ask for about redistribution? If you want them to process and display the results back to you they can’t do it without having the legal right to redistribute the content. You agreed to identical language when building this site and posting this article otherwise your webhost couldn’t legally display the page. I’m even implicitly agreeing to virtual identical terms when I click, “Post Comment” below this box.

    Elsewhere in the ELUA there’s a clause that specifically says they take no claim of ownership:

    “All intellectual property rights in and to the User Content are and shall remain your property, and Grammarly shall acquire no right of ownership or use with respect to any User Content except in connection with its provision of the Services under this Agreement.”

    So, you write a clickbait article about the onerous conditions in a contract while trying to sell legal services to small businesses and just proved you don’t know how to read a contract.

    1. Susan Burns

      See responses above. Ownership and licensing are two different things.

      Not clickbait – not selling a thing here. Not collecting your email address.

      Want you to read what you agree to and understand it. Make your decision from there.

  8. Kayla Curry

    What about the part of the TOS that says this: “All intellectual property rights in and to the User Content are and shall remain your property, and Grammarly shall acquire no right of ownership or use with respect to any User Content except in connection with its provision of the Services under this Agreement.”

    Also, I use Grammarly 24/7 and have never seen the icon on any password or credit card fields.

    1. Susan Burns

      Please see resonse above. Glad it doesn’t pick up credit card info.

    2. Susan Burns[ Post Author ]

      Kayla, I responded, but am not sure where the response went. But owning your User Content is one thing. When you create it and “reduce it to a tangible medium of expression,” you own it.

      You are also licensing your intellectual property to them. If I remember correctly, the terms say it’s an unlimited, perpetual, royalty-free license.

  9. GARY DARBY

    My wife passed this article along to me as I am a published author who uses Grammarly. I admit I didn’t fully read the terms of service beforehand but after your post, I went back and reread the whole thing. I think you may be a bit mistaken in that I found this under their TOS: Ownership

    All intellectual property rights in and to the User Content are and shall remain your property, and Grammarly shall acquire no right of ownership or use with respect to any User Content except in connection with its provision of the Services under this Agreement.

    Sounds to me as if I own my created/intellectual property, whatever that is, and not Grammarly.

    Thoughts?

    1. Susan Burns[ Post Author ]

      Gary, you own the material and are granting them an unlimited perpetual royalty-free license to use it.

      Does that make sense?

      Other people have commented that the license is limited to making the product better. I don’t see that in the TOS. If I am missing that, I am happy to revise my opinion.

      Also, this is my opinion. I am not anyone’s lawyer unless they retain me.

  10. Lark Allen

    Did you also read the part where is stated, “All intellectual property rights in and to the User Content are and shall remain your property, and Grammarly shall acquire no right of ownership or use with respect to any User Content except in connection with its provision of the Services under this Agreement.”
    They state the reasons for keeping the content is to help the software become better at its job. I understand your point but you covered half of the information and leave a lot of people worried about a lot of nothing. They tell you exactly what they do with your content.

    1. Susan Burns

      The fact that you still own your own content doesn’t change the fact that you give them a license to use the content. It also doesn’t change the fact that they have a license to use it as they see fit. And it doesn’t apply to just the company, but also subsidiaries and affiliates.

      1. Melina

        With respect, they can’t actually use it “as they see fit”. The Terms clearly state the two uses and can only use information as stated (and I’ve borrowed this simplified explanation as it seems to sum it up quite nicely):

        1. To be able to store it for you to access so they can give you the service they promised. This is the same terms that, say, Dropbox has.

        2. To improve their algorithms. This allows them to use your text to make their product better at spotting errors and function better. Since their system uses machine learning algorithms to gradually improve as more work is uploaded and checked, this is ALSO essential for the operations of their company.

        The TOS allows those two uses. By not listing any other allowed uses, any other use is specifically NOT allowed.

        This makes the main argument of the article incorrect, and will likely cause a lot of confusion and/or outrage for no reason.

        1. Susan Burns[ Post Author ]

          Melina,

          Thank you. And also with respect, I don’t read the contract that way. As we say in the legal business, reasonable minds may differ.

          Look at how they define “Services” and review that in the context of the terms of the license you grant them. Let me know if that changes your perspective or not.

          In my opinion, if everyone (Dropbox, FB etc.) is doing this, they need to be more clear in their agreement and limit it if that is the intent.

          Susan

  11. Kiara

    With respect Susan I’m not sure you understand the service. if you use Grammarly that’s not downloaded onto your desktop it saves your information on a cloud so that you can go back and edit it it any point you want without having to be at home on your computer. that’s not the same as disseminating your information to say another blogger or a news service or what have you

    1. Susan Burns

      Kiara, thanks. I agree that it’s not the same. But I don’t see anything in the terms of use that limits their access to what you type solely to your editing. I do think I understand the service and the legal meaning of the terms of use.

      1. Kevin

        I think you need to review the TOS again, then. It specifically limits the use of your IP to “the Services” on “the Site”. They cannot use that IP in connection with anything else.

        Grammarly has this element in their TOS for the same reason that Facebook and LinkedIn have those provisions: because they store your data when you use the web service. They’re not storing or tracking your emails… But their online service allows you to upload documents to their website, which they will store there until you delete them.

        This allows you to easily edit the work on more than one device. But it also means they *must* legally acquire a license to retain that information. Just like Facebook and LinkedIn do.

        The TOS is explicit: they can store and use the IP you upload for services on their site, and to improve their software (which they do through machine learning, making Grammarly better each time someone uses it). That’s it. No other rights are transferred.

        Does this help explain the situation better? If I’ve failed to make it more clear, I’d be happy to give it another shot. I’m not associated with Grammarly except as a user, but I have an extensive background in contract law, and I’d be happy to discuss the matter in more detail if you would like. 🙂

        Kevin

        1. Susan Burns[ Post Author ]

          Kevin,

          Thank you. How do they define “Services?”

          Susan

        2. Marty Thornley

          Kevin is right. ANY cloud software or website that you enter content to or upload pictures to need these rights in order to work. Facebook got the same freak out from photographers years ago. They probably should be more explicate about what they will not use it for but that gets tricky.

        3. Susan Burns[ Post Author ]

          Marty and Kevin,

          First, I hear your point and disagree. Second, if everyone else jumps off of the bridge, do you jump too?

          It’s not that tricky to draft appropriate language. That is the job of a good lawyer. Clear, understandable, enforceable terms.

          Susan

  12. Natalie

    What about the AutoCrit online editor?

    1. Susan Burns

      Natalie, look at the Terms of Use, Terms of Service or Privacy Policy.

  13. Terri L Rochenski

    I didn’t use their app or download content into their site, simply used the add-on for Word. I’m wondering if they’re still able to access my documents if they aren’t downloaded to their site? Any thoughts on this?

    1. Susan Burns

      I don’t know exactly how the technology works, Terri. I don’t think they search through your existing documents, but don’t know the capability. I do they have access to what you create or what you type.

  14. Carly

    I had no idea they were doing this… Serves me right for not reading the ToS properly. As someone who wants to be a published fantasy author one day, I should be careful about who has access to what. I guess I’ll need to brush up on my grammar! Thanks for this!

    1. Susan Burns

      You are welcome. Yes. Be careful!

      The biggest issue here, in my opinion, is that it relates not just to your content, but the App accesses everything you type – so passwords, ccard numbers, emails, etc.

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