'Terms of Service' Agreements Are Unbalanced, Need Reforming, Urges New York Times (nytimes.com) 53
"The same legalese that can ban Donald Trump from Twitter can bar users from joining class-action lawsuits," warns the official Editorial Board of the New York Times, urging "It's time to fix the fine print." [Alternate URL here]
[M]ost people have no idea what is signed away when they click "agree" to binding terms of service contracts — again and again on phones, laptops, tablets, watches, e-readers and televisions. Agreeing often means allowing personal data to be resold or waiving the right to sue or join a class-action lawsuit... Because corporations and their lawyers know most consumers don't have the time or wherewithal to study their new terms, which can stretch to 20,000 words — about the length of Shakespeare's "Julius Caesar" — they stuff them with opaque provisions and lengthy legalistic explanations meant to confuse or obfuscate. Understanding a typical company's terms, according to one study, requires 14 years of education, which is beyond the level most Americans attain. A 2012 Carnegie Mellon study found that the average American would have to devote 76 work days just to read over tech companies' policies. That number would probably be much higher today.
At its core, the arrangement is unbalanced, putting the burden on consumers to read through voluminous, nonnegotiable documents, written to benefit corporations in exchange for access to their services. It's hard to imagine, by contrast, being asked to sign a 60-page printed contract before entering a bowling alley or a florist shop... Though courts have held terms of service contracts to be binding, there is generally no legal requirement that companies make them comprehensible. It is understandable, then, that companies may feel emboldened to insert terms that advantage them at their customers' expense.
That includes provisions that most consumers wouldn't knowingly agree to: an inability to delete one's own account, granting companies the right to claim credit for or alter their creative work, letting companies retain content even after a user deletes it, letting them gain access to a user's full browsing history and giving them blanket indemnity. More often than not, there is a clause (including for The New York Times's website) that the terms can be updated at any time without prior notice. Some terms approach the absurd. Food and ride-share companies, like DoorDash and Lyft, ask users to agree that the companies are not delivery or transportation businesses, a sleight of hand designed to give the companies license to treat their contract drivers as employees while also sheltering the companies from liability for whatever may happen on a ride or delivery. Handy, an on-demand housecleaning service, once sought in its terms of service to put customers on the hook for future tax liabilities should their contract workers' job classification be changed to employee...
"This is one of the tools used by corporations to assert themselves over their customers and whittle away their rights," said Nancy Kim, a California Western School of Law professor who studies online contracts. "With their constant updates to terms and conditions, it amounts to a massive bait-and-switch...."
"We have become so beaten down by this that we just accept it," said Woodrow Hartzog, a Northeastern University law professor. "The idea that anyone should be expected to read these terms of service is preposterous — they are written to discourage people from reading them...."
The Board urges the U.S. Congress to consider requiring greater transparency about terms and their changes — as well as simpler explanations. "If a company's online service is open to 13-year-olds, as many are, then the terms of use need to be written so an eighth grader can understand them."
At its core, the arrangement is unbalanced, putting the burden on consumers to read through voluminous, nonnegotiable documents, written to benefit corporations in exchange for access to their services. It's hard to imagine, by contrast, being asked to sign a 60-page printed contract before entering a bowling alley or a florist shop... Though courts have held terms of service contracts to be binding, there is generally no legal requirement that companies make them comprehensible. It is understandable, then, that companies may feel emboldened to insert terms that advantage them at their customers' expense.
That includes provisions that most consumers wouldn't knowingly agree to: an inability to delete one's own account, granting companies the right to claim credit for or alter their creative work, letting companies retain content even after a user deletes it, letting them gain access to a user's full browsing history and giving them blanket indemnity. More often than not, there is a clause (including for The New York Times's website) that the terms can be updated at any time without prior notice. Some terms approach the absurd. Food and ride-share companies, like DoorDash and Lyft, ask users to agree that the companies are not delivery or transportation businesses, a sleight of hand designed to give the companies license to treat their contract drivers as employees while also sheltering the companies from liability for whatever may happen on a ride or delivery. Handy, an on-demand housecleaning service, once sought in its terms of service to put customers on the hook for future tax liabilities should their contract workers' job classification be changed to employee...
"This is one of the tools used by corporations to assert themselves over their customers and whittle away their rights," said Nancy Kim, a California Western School of Law professor who studies online contracts. "With their constant updates to terms and conditions, it amounts to a massive bait-and-switch...."
"We have become so beaten down by this that we just accept it," said Woodrow Hartzog, a Northeastern University law professor. "The idea that anyone should be expected to read these terms of service is preposterous — they are written to discourage people from reading them...."
The Board urges the U.S. Congress to consider requiring greater transparency about terms and their changes — as well as simpler explanations. "If a company's online service is open to 13-year-olds, as many are, then the terms of use need to be written so an eighth grader can understand them."
Not Valid (Score:5, Interesting)
> [M]ost people have no idea what is signed away when they click "agree" to binding terms of service contracts
That's because none of these "contracts" are valid in the slightest. No user ever hires a lawyer to go over the contract and adjust it to meet their needs therefore it isn't really a contract at all and it will never stand up in any court of law.
It may be a declaration of intent by the corporation providing it, but even then do they actually follow their own promises? Only sometimes...
Re:Not Valid (Score:5, Informative)
That's because none of these "contracts" are valid in the slightest.
A lot of people say that, but I am not sure that this statement is actually true. Is there a lawyer in the house?
From Wikipedia [wikipedia.org]
Few cases have considered the validity of clickwrap licenses. Still, in the cases that have challenged their validity, the terms of the contract have usually been upheld:
Re:Not Valid (Score:4, Interesting)
Both outcomes have happened in actual court. (as usual)
The clauses about first born children are not likely to hold up... Something simple like manufacturer reserves the right to refuse service (a right they already had) will "hold up" but it's not like the right came from the click-wrap agreement in the first place.
Re: (Score:2)
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They usually contain enough clauses to make their case, but not so much that they become "problematic".
For example: "we are giving you a perpetual digital subscription" even though you click "buy", and then "we can weasel out for any reason". if you complain, they could say: you should have made backups.
Or: "no warranties", oops we lost your data and caused you immerse pain, here is a coupon for all your troubles. "we are not liable anything more than you paid for the service, which was free by the way"
Unle
Re:Not Valid (Score:5, Informative)
That's because none of these "contracts" are valid in the slightest. No user ever hires a lawyer to go over the contract and adjust it to meet their needs therefore it isn't really a contract at all and it will never stand up in any court of law.
I wonder where you are? In the US adhesive contracts hold up, EULAs generally hold up, and terms of service generally hold up. But they do have to respect the Netscape rule: you have to see them and affirmatively agree to them. Just having a link that people don't have to read and not requiring an action to agree to them will not aid in enforcing them later.
Some terms may not be enforceable, but that's a separate issue.
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> Some terms may not be enforceable, but that's a separate issue.
Basically any term that would give the manufacturer additional rights beyond what they naturally have.
These things really are meaningless. It's really just a glorified statement of intent.
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No. I'm not sure what you're trying to say, but the reason contracts exist is to enact what is essentially reciprocal private law, not what I think you mean by "naturally," common-law.
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Contracts enact reciprocal private law when reciprocity is actually possible. Not so in a click-wrap.
Basic commerce already has a "natural law", even "sales of copies" has it by now. If I give you money for goods, there a few things I expect from you and that you expect from me. Trying to wholly reshape the sales transaction because you stuffed an extra contract into my donut instead of jelly is pointless.
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This is incredibly untrue. In the US, at least, contract terms are always enforced unless they fall into certain fairly narrow exceptions. I would note further that you appear to be talking about contracts for the sale of goods (still subject to contract terms; the UCC is merely a starting point), while the discussion is about providing services, something that the UCC doesn't pertain to.
But by all means, let's see some support for your claim. I'd accept case cites or Restatement of Contracts.
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Wait you're right about one thing. Indemnification.
You have to disclaim all sorts of liability just to publish anything. So yes, there's a secret sauce of required legalese to do business as a producer. (but it doesn't require clicking as you point out. Distribution or ownership and use are enough to provide agreement to a software license)
And reaching for more goodies off the table of rights because you have fancy weasel words isn't going to get you very far...
Re: (Score:2)
That's because none of these "contracts" are valid in the slightest. No user ever hires a lawyer to go over the contract and adjust it to meet their needs therefore it isn't really a contract at all and it will never stand up in any court of law.
What? I'm not quite sure what you *think* the requirements are for a contract to be valid, but there is nothing about the fact that "No user ever hires a lawyer to go over the contract and adjust it to meet their needs" which would invalidate a contract. I'm not even sure what your point is.
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Indeed.
There are six legal grounds for processing data: ...and everybody's favourite:
- Consent. Something the user can at any point revoke unilaterally.
- Contract. An agreement.
- Legal obligation - When an organistiion is required to store and process data by law
- Vital interest. Basically to access data in a life-or-death situation, used in hospitals mostly.
- Public interest. Mostly used go government institutions to fullfull their functions.
- Legitimate interest. Where a company basically says they're pre
Re: (Score:2)
Indeed.
There are six legal grounds for processing data: - Consent. Something the user can at any point revoke unilaterally. - Contract. An agreement. - Legal obligation - When an organistiion is required to store and process data by law - Vital interest. Basically to access data in a life-or-death situation, used in hospitals mostly. - Public interest. Mostly used go government institutions to fullfull their functions. ...and everybody's favourite:
- Legitimate interest. Where a company basically says they're pretty sure you would agree that their reasons for doing so are valid.
The one discussed here feels like a weird hybrid between consent ("I agree button") and contract.
> No user ever hires a lawyer to go over the contract and adjust it to meet their needs therefore it isn't really a contract
I'm not sure that is a requirement for something to be a contract. At the same time I must admit the legal boundaries between the two aren't clear cut to me.
Is there a lawyer in the room?
Which of these would cover Facebook shadow profiles [theconversation.com]?
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A contract of adhesion does not automatically render a contract voidable. It's very very (very) rare that it would be found automatically invalid.
Re:Not Valid (Score:4, Interesting)
The non-negotiability is why these contracts should be unenforceable.
Each contract should have the ability of the user to strike-out a clause, any time it changes the user should have the right to retain the previous agreement. The user should also be able to counter-clause using a set of standard 'under duress' statements.
eg the contact may say "The user shall have no legal rights, and no ability to sue the company", and the user should be able to make a "under duress" statement that strikes that line and counters it with "the user makes a claim to 100% of the company's assets"
Basically counter each statement with an equally ridiculous statement to strike it with. eg, the user will only agree to this statement if the company agrees to this , otherwise strike it entirely.
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You can mail facebook your "negotiated" TOS. Just don't expect them to agree with them and let you use the service.
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A contract requires agreement by BOTH parties.
The user might not willingly agree to some of the terms in EULAs. But the company would DEFINITELY not agree to "the user makes a claim to 100% of the company's assets".
How do you get both sides to agree? Let's say the user can make changes to the contract as you say. Then the company would have to review the revised contract to see if THEY agree. Presumably they wouldn't bother. They would just reject any changes as not worth their time dealing with. Which is t
the only upside of makeing it criminal to violate (Score:3)
the only upside of makeing it criminal to violate them is that you get to go to an
REAL court not arbitration
RIGHT to jury trail
RIGHT to an FREE public defender.
In other news: Tacos are tasty (Score:2)
Re: (Score:2)
I'm not sure how you can reign in the wild horse that's out of the barn.
First you have to rein supreme.
for contacts they must let you get out with no ETF (Score:2)
for contacts they must let you get out with no ETF, no uninstall fees, ect
If they change the EULA in the middle of it
Also say you buy MLB EI and then 2 weeks in directv changes there EULA and you say no then they must let you quit and they must refund that MLB EI cost / can't bill you for the rest of the year.
Self driving cars need to have fed / state level r (Score:2)
Self driving cars need to have fed / state level rules so they can't just fuck up hit some and then speak out an EULA that let's them off the hook.
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There needs to be a comprehensive driving test for self-drive vehicles, with specific focus on the ability of the vehicle to interpret surroundings and spot hazards. The federal government should be designing and enforcing this at a national level - this cannot be implemented by individual states because of course autonomous vehicles are free to travel state-to-state, so you need a nationally consistent set of testing.
Insurance policie
How's theres? (Score:2, Redundant)
https://help.nytimes.com/hc/en... [nytimes.com]
Should clean their own house first
Re:How's theres? (Score:5, Insightful)
Actually, this is a promising sign of journalistic independence if the editorial board can speak out against a policy of their own paper's executive/legal team. NYT is pretty good about calling out their own staff if they misbehave - they've broken stories about bad reporting done by their own reporters. It beats the hell out of sources that try to sweep misbehavior (and *every* major new source has misbehavior) under the rug, or killing the story because it goes against the opinion of corporate.
Nothing to do with banning (Score:2)
Websites do not need to have a terms of service to give themselves permission to ban you. Explaining terms and only banning you if you violate the particular rules they've laid out is purely a courtesy. If there's anything nefarious about use rules in terms of service, it's that they make the terms longer so that you're less likely to read the part that lets them sell your information.
Yes, we need customer unions, essentially. (Score:3)
The core problem is an unbalanced market again.
Nobody would sign up for that crap if they had a choice. Showing clearly that they don't really have a choice.
If people really had a choice, a contract would be an actual common agreement, instead of "eat or die".
And sadly, the majority of all profit is derived from such strong-arming instead of actual value added.
Expect businesses with products and profits that would never fly in an actual free market to fight this to the death.
But we need customers to organize jusr as businesses do.
In essence, a business is also a kind of union. So why shouls it be different for customers?
Could customer union leaders ne dicks and try to strong-arm businesses when they can?
Absolutely!
Just like business leaders.
So either both are OK or neither.
Re: (Score:2)
> Nobody would sign up for that crap if they had a choice.
I'm sorry when it comes to Twitter I "Just said no." and never had a problem. I'm not sure how there's no choice in the matter of a completely useless "service".
Now, my internet provider, that's a whole different story.
Re: (Score:3)
The Union of all of the People is supposed to be government (of the People, by the People, for the People). Time to let the union bosses know they're on notice.
slaves to the corporations? (Score:1)
So, effectively, we are slaves to the corporations - that slippery slope of neo-liberalism - "The markets will dictate."
We all *know* this, but choose to dismiss it (most of us do), riding on the idea of free speech, liberalism - the right to live our lives how we choose.
But instead of government laying down the law, we now have corporations, monopolies - we use their services because we *have* too, because all the services once offered under a more controlling, nationalised government, have been sold off.
T
No live signature, no witness anyway (Score:2, Insightful)
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Websites ask you to confirm your email for a reason. It works as a signature.
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No. It doesn't.
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How can any so-called 'legal contract' be considered valid in any way shape or form when there's not actual live signature and no witness to that signature even if there is one? How, really, can just clicking a button on a webpage be considered legally binding in the first place?
While this sounds reasonable, this argument would also apply to e-signatures.
Would you also argue that electronically signing things should be illegal? (the idea is compelling, but that ship has clearly sailed many years ago)
states (Score:2)
NYT flubs minors vs adults contract law (Score:2)
"If a company's online service is open to 13-year-olds, as many are, then the terms of use need to be written so an eighth grader can understand them."
A 13-year old is not considered legally competent to enter into a binding contract, and can be voided by the minor.
Re: (Score:2)
In some parts of this country, an eighth grader might be 19 years old.
No shit! (Score:1)
Simple terms (Score:2)
"... so an eighth grader can understand them."
We'll ignore your rights as long as possible.
When the fecal matter impacts the breeze-creating impeller, you're on your own.
We'll monetize your existence and use of our product in every way possible.
Anything you didn't pay for, belongs to us.
You have no privacy.
0.0146 seconds | ongoing performance (Score:1)
By Design, and Consumers don't care. (Score:2)
Gosh if all these EULAs are unfair and unbalanced, I wonder how the victims of a class-action lawsuit feel after receiving their "settlement" equal to half a Taco Bell value meal while the lawyers walk away with millions?
Let's stop pretending this isn't by design. Obfuscation is the legal partner of Dewey, Cheetum, and Howe, and Greed N. Corruption has been running this Union for decades now. We can't even get rid of the IRS, so there's basically no chance in hell in changing the legal system in place to
the brick license (Score:2)
I have a simple solution (Score:2)