Bait & Switch at The New England Foundation For The Arts

Tweet This http://goo.gl/m80wEm

I am now no longer a member of the Facebook Group Maine Artists.There were too many there intolerant of challenges to the collective politically correct view, which I have seen in other places on the internet, and I do not usually stay with such groups long either. I have a liberal Facebook friend who was inviting me to join numerous political discussion groups that fancied themselves places where those of opposing views can engage in an open debate. My fiend tells me that it is difficult to find conservatives to join the groups. The last time word that I was going to join preceded actually joining and so I was greeted by a welcome chorus but once an actual discussion began, the knives and hatchets were instantly drawn as the "debate" relied primarily on insulting anyone who did not echo group think. I was out of there within half an hour.

In the case of Maine Artists, it is not a place where discussion generally takes place. It is usually about posting images of one's work, however at this time there were the two discussions, started by others, which I wrote about in my previous post. The group think at Maine Artists is very dominant. I was pushing the envelope by expressing my outlier perspective  and on Christmas Eve, factions hostile to open debate won the day.

Group think is a characteristic of a collectivist society. Private capitalism is the outgrowth of a society based in individualism. My defense of The Portland Art Gallery and the media empire which gave it birth is rooted in a defense of private capitalism which is not to suggest a province of saints but it beats collectivism ,crony capitalism and hegemonic public-private relationships. I have been studying the system through which the Maine corporation redistributes wealth for quite some time and have yet to find it being channeled to the publishing industry and so I think it is fair to speculate that The Brand Company truly is a self made company- and I admire that. It is a breath of fresh air but will that quality last ? My observation about how the Union of Maine Visual Artists could work constructively with the Brand Company comes dangerously close to a public private relationship, with its trending toward hegemonic power. The message I was attempting to convey -so unsuccessfully- at Maine Artist was to encourage the individualist approach inherent in private capitalism and to use the resource provided by The Union of  Maine Visual Artists to reintroduce the idea that contracts and terms of agreements are a two way street.

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 but - this of course being my layman's analysis and interpretation, which is all most have when deciding whether to agree to the terms.

Creative Ground.Org 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. 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.

BY CLICKING “I AGREE” IF YOU ARE A REGISTERED USER WHO CONTRIBUTES CONTENT, OR BY SUBMITTING A SEARCH REQUEST IF YOU ARE ONLY PERFORMING SEARCHES ON THE CREATIVEGROUND SITE, YOU REPRESENT AND WARRANT THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND THE CREATIVEGROUND (TM) PRIVACY POLICY, INCORPORATED BY REFERENCE HEREIN, AND EXPRESSLY AGREE TO AND CONSENT TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS CONTAINED THEREIN REGARDLESS OF HOW OFTEN YOU USE THIS SITE.  THIS AGREEMENT SHALL HAVE THE SAME LEGAL EFFECT AND FORCE AS A WRITTEN AND SIGNED DOCUMENT BY YOU.

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 CREATIVEGROUND (TM) 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 AMENDMENTS OR MODIFICATIONS TO THE AGREEMENT SHALL BE DEEMED ACCEPTANCE OF THE MOST CURRENT VERSION OF THIS AGREEMENT.

Integration and Conflicting Terms.    This Agreement, the Privacy Policy, and any other terms expressly incorporated by reference herein constitute the complete and exclusive statement and agreement between You and Us with respect to use of this site and supersedes any and all prior or contemporaneous communications, representations, statements, agreements, and understandings, whether in oral, written, or electronic form, between You and Us concerning the use of the site and Our service.... ( the rest is identical to NEFA terms)

 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.

NEFA Terms 

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? 

 BY CLICKING "I AGREE" IF YOU ARE A REGISTERED USER WHO CONTRIBUTES CONTENT, BY SUBMITTING A SEARCH REQUEST IF YOU ARE ONLY PERFORMING SEARCHES ON THE  SITE OR BY OTHERWISE ACCESSING OR USING THE SITE, YOU REPRESENT AND WARRANT THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND THE NEW ENGLAND FOUNDATION FOR THE ARTS PRIVACY POLICY, INCORPORATED BY REFERENCE HEREIN, AND EXPRESSLY AGREE TO AND CONSENT TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN AND THEREIN REGARDLESS OF HOW OFTEN YOU USE THIS SITE. THIS AGREEMENT SHALL HAVE THE SAME LEGAL EFFECT AND FORCE AS A WRITTEN AND SIGNED DOCUMENT BY YOU.  IF YOU DO NOT AGREE WITH THE TCU, DO NOT USE OR ACCESS THE SITE.
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.

 18. Integration and Conflicting Terms. This Agreement, the Privacy Policy, and any other terms expressly incorporated by reference herein constitute the complete and exclusive statement and agreement between You and Us with respect to use of the NEW ENGLAND FOUNDATION FOR THE ARTS site and supersedes any and all prior or contemporaneous communications, representations, statements, agreements, and understandings, whether in oral, written, or electronic form, between You and Us concerning the use of the site and Our service. This Agreement, the Privacy Policy, and other terms expressly incorporated by reference shall be construed as consistent with each other whenever possible, but if such construction is unreasonable due to conflicting terms, the terms of this Agreement shall control. To the extent that Our site contains any content posted by Us, including but not limited to answers to "frequently asked questions" ("FAQs"), which may conflict with the terms of: (a) this Agreement, this Agreement shall control; and/or (2) the Privacy Policy, the Privacy Policy shall control.

 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.

Allow me to give my self credit since no one else will, that the very sort of analytically thinking, which the denizens of the Maine Artist FaceBook Page, find so soicially unacceptable is what most likely brought this small change in the NEFA terms of agreement about. I know of no other who has taken on this issue in my seven years of pursuing it. The Maine Artists certainly want to know nothing about it but I publish these views for their sake and benefit. 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? 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 as I did. 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.

Related Posts:
1. Art World Entitlements
2. Communism and State Ownership of Intellectual Property
3. NEFA Helps The Maine Arts Commision Present a Work Shop On Intellectual Property Rights
4.