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Corporations have spent decades conditioning their users to accept all ToSs and EULAs, using a combination of forbidding the software outright (often with no ab

Corporations have spent decades conditioning their users to accept all ToSs and EULAs, using a combination of forbidding the software outright (often with no ability to get a refund) and applying scary language that they have limited the abuse of only as much as they thought would escape the public's notice. Now that their investment has been completed, they want their returns. My solution to this (and to issues like this outside of software) is extreme but it will fix the problem. When one side creates a contract of any sort (ToS, EULA, phone contract, home buying contract) which primary purpose is to be signed by numerous other individuals who have little to no ability to alter the contract, the other parties are allowed to use lack of understanding to break the entire contract unless the creator can show beyond reasonable doubt (I would use clear and convincing, but that would be abused) that the signer did understand the entirety of the contract. It would break contract law as we know it, but it would force simple, easy to understand contracts and it would penalize any robo signing practices. (Personal story: last time I went to a phone company, they gave the contract to read on a small device where I could only read 2 lines at a time and where part of the display was broken. I wasn't allowed a print out of the contract until after I signed. I walked away and have to this day not gotten a smartphone because of the downright evil practices of cell phone companies).

6stringmerc 10y ago
Oh I can totally agree with you on a lot of those points - the balance of power has shifted to the point of even taking away legal recourse, a la "BINDING ARBITRATION" which I'm skeptical of, re: conflict of interest. I've honestly kicked around a legal-ese type write-up of 'Personal Terms of Service' type disclaimers - subject to change at any time - essentially stating that by taking payment for a service there is a negotiating platform to reconcile conflicting claims. As in, I claim that I should never be subject to an early termination fee if I'm personally unstatisfied with the service, and the service provider says they alone are allowed to waive the fee. Well then, that's a conflict of terms, and by taking my money for a service, they implied they would allow my ToS to usurp theirs (e.g. it's written in my ToS that accepting money creates a binding agreement for such a thing), etc, etc. I thought it was an exercise in basically being selfish, but the more times examples like this surface, the more it actually starts to sound reasonable. That's...pretty wild to me. I mean, I have a lot of respect for contracts and see them as the ties that hold a lot of commerce together, so they've got real, practical use that should be encouraged. But when it comes to "wiggle room" that sounds a bit like gamesmanship to tilt the power, then I also think fighting back is a natural result, childish as it might seem at first.

6stringmerc 10y ago

Oh I can totally agree with you on a lot of those points - the balance of power has shifted to the point of even taking away legal recourse, a la "BINDING ARBITRATION" which I'm skeptical of, re: conflict of interest. I've honestly kicked around a legal-ese type write-up of 'Personal Terms of Service' type disclaimers - subject to change at any time - essentially stating that by taking payment for a service there is a negotiating platform to reconcile conflicting claims. As in, I claim that I should never be subject to an early termination fee if I'm personally unstatisfied with the service, and the service provider says they alone are allowed to waive the fee. Well then, that's a conflict of terms, and by taking my money for a service, they implied they would allow my ToS to usurp theirs (e.g. it's written in my ToS that accepting money creates a binding agreement for such a thing), etc, etc. I thought it was an exercise in basically being selfish, but the more times examples like this surface, the more it actually starts to sound reasonable. That's...pretty wild to me. I mean, I have a lot of respect for contracts and see them as the ties that hold a lot of commerce together, so they've got real, practical use that should be encouraged. But when it comes to "wiggle room" that sounds a bit like gamesmanship to tilt the power, then I also think fighting back is a natural result, childish as it might seem at first.