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from the article - "Notice and consent is an absurd legal fiction." it shouldn't be. "Notice and consent" should instead be a class taught in high schools. The

from the article - "Notice and consent is an absurd legal fiction." it shouldn't be. "Notice and consent" should instead be a class taught in high schools. The ability to read, understand and NEGIOTIAGE these agreements should be within the mental grasp of everyone.

dredmorbius 10y ago
There are far too many ToSes for any person to be able to read them, let alone negotiate each. This problem was solved in an earlier age of commerce through a Uniform Commercial Code (throughout most of the US), or equivalent statutory or case law in other domains. Essentially, contracts were reduced to a common set of standard components. Exceptions might be allowed for specific cases, including unilateral "contracts of adhesion", but these too were generally limited. In particular, ordinary transactional terms are limited by: 1. The scope and extent of the transaction. The term is for a single purchase or transaction, not an ongoing "relationship", with few exceptions (utilities, rental agreements, subscriptions). 2. There's a limit to the data exchanged. In general, the minimum amount of data required for a transaction is what's provided. Even where personal information was taken down, it was recorded on and remained on paper forms, rarely being converted to electronic form. This is no longer the case, where, say, a license number (or a license held as surity) for, say, an hourly boat or bicycle hire might be scanned electronically, OCRd, entered into a database, and matched with other records. 3. As noted above, information one organisation gathered on you was only rarely shared with others. This is no longer the case. As my awareness of such practices has spread, I've become vastlty less interested in transactions in which I'm aware my information is being exchanged: magazine subscriptions, credit or debit card purchases, anything with an email or postal code, etc. For a good decade or more, I refused to sign electronic signature pads. I still generally balk at this. But until terms of service are both standardised and codified with users' interests in mind, the present situation will only get worse.
- ahartman00 10y ago
  I like the point about the UCC. I have thought about standardized contracts myself, though I didnt think to compare it to the UCC. "But until terms of service are both standardised and codified with users' interests in mind" But what about sites with a different revenue model? Say an image hosting site meant for personal photos, and an image sharing site meant as a platform for artists to sell their work. You would not want the former allowing any sort of copyright transfer, but the latter cannot function without it(at least without the ability for the site to take payment and provide a license). Im not sure how we could standardize everything. Especially if consumers are not willing to pay a subscription. "In particular, ordinary transactional terms are limited by:" 1. But this would be an ongoing relationship, assuming they continue to use the service. 2. Again, subscription fees would be needed to sustain the business. Otherwise advertising is the only way. And there's an old joke in advertising: half of all advertising budgets are wasted, the trick is figuring out which half. I do see your point about a drivers license number not being needed for a long period of time.
  - dredmorbius 10y ago
    There was an attempt to come up with a UCC for services, within the US, though it failed to garner sufficient support: UCITA. It's not clear to me how some breadth of interests couldn't be addressed. The usual T&C generally address limits on liability of the site's owners, occasionally try to impose binding arbitration or limits on class action suits (among my complaints against the so-called "Kinder, gentler Reddit", Imzy), jurisdiction, reverse-engineering clauses, etc. Allowing users to specify licenses for submitted works would address much of your concerns. A standard set of merchandise clauses, including, say, escrow, liability, and chargeback terms, might be among the boilerplate additions to a standard contract which might be made. But the point is to make the contracts themselves standard and modular. There might be a base services contract, a base merchant contract, and a base rights-for-sale contract, but not infinite variations on each. Also limits on what sites or users might carve out as grantable or transferable rights. My point in noting that ordinary commerce is limited to a single sale transaction is just that: that these are simple transactions and hence the associated legal binding is also simple. Ongoing relationships are inherently more complex. There are alternatives to advertising and subscriptions, including non-market constructs. In the example I posed, the value of the drivers license as a hire surity is that the hirer is quitely likely to return for it. The disadvantage, today, is that the license has not only the attributes of "valuable to the owner", but "hive of data which can be used to draw additional relations". Some years ago I discovered that the purchase of certain over-the-counter medications required, by store policy though not by local law, presentation of a drivers license. I held up my license for the clerk to visually examine. He tried to take it from my hand, which I refused. He wouldn't close the sale without scanning the card. I walked off without paying and without product. I've been insisting on respecting my privacy rights for some time, and am not above forgoing business, taking my business elsewhere, or making others pointedly uncomfortable for asking questions I won't answer. Sadly, I am an exception.
- pdkl95 10y ago
  > for any person to be able to read them This should be exploited by challenging the mutuality of the agreement. Unless there is an understanding by both parties about the basic features and requirements - a "meeting of the minds" - then there isn't a contract. Currently the "yes, I read that" buttons are used as an indication of having read and understood the contract, but as you said, actually reading all that legalese would take a long time. It may have been hard to prove otherwise in the past, but today we have another option. We now have algorithms that estimate a given text's reading level. Using that kind of technique we can algorithmically estimate how long it should take for someone to read a document, from which a conservative estimate of the minimum reading time can be derived. It would be short enough that practically everybody exceeds the estimated time. This needs to be purely mechanical. With a minimum reading time established, every contract should be nullified unless each party was given and used at least that much time to read the document. That is, allowing anybody to "sign" an EULA before $MINIMUM minutes have elapsed should be prima facie evidence that no contact exists.
wfo 10y ago
If you manage to renegotiate your contract/EULA with Apple or Facebook or Google because of your impressive ability to read and understand them, let me know. In reality, the power these companies have means there is no negotiation. They are gatekeepers to nearly necessary tools to exist in society (especially for the non-tech-savvy) and they can put whatever rules they want on those gates. Your choices are to do whatever they want or walk away. In fact, I'd posit it's a waste of time for someone who isn't a privacy attorney to read these take-it-or-leave-it-style "contracts" since you HAVE to accept them, and the only things you can argue about or discuss are provisions in the contract which are illegal or unenforceable, and that discussion happens much later in front of a judge. The ONLY way we can protect ourselves from these abusive contracts (particularly the pervasive and rights-destroying mandatory binding arbitration clauses) is to use legislation to delete them from existence. Nearly all tech companies try to use noncompetes to keep their employees in a brutal stranglehold and stop them from shopping around to try to earn the market value of their labor. California is where tech goes to flourish and startups abound, because noncompetes are banned there. We need to ban mandatory binding arbitration altogether (there is no reason it should have ever been legal), and have very strict guidelines about what kinds of privacy/tech contracts are allowed -- with punishments for companies who violate, strict ones.
- pjlegato 10y ago
  I mostly agree, though I think that California's massive amount of readily available tech venture capital, as compared to anywhere else on Earth, is a far more important factor in its abundance of startups, rather than its obscure law banning non-compete agreements.
  - wfo 10y ago
    The law isn't obscure at all, it's a fundamental part of employment law that separates California from many other states. And saying it's due to tech VC is saying there's a lot of tech success due to the overabundance of tech success. People who work at a company can quit and start a startup, even in the same industry, carrying with them their hard-won expertise. Without a legal cloud over their heads which will scare away investment.

dredmorbius 10y ago

There are far too many ToSes for any person to be able to read them, let alone negotiate each. This problem was solved in an earlier age of commerce through a Uniform Commercial Code (throughout most of the US), or equivalent statutory or case law in other domains. Essentially, contracts were reduced to a common set of standard components. Exceptions might be allowed for specific cases, including unilateral "contracts of adhesion", but these too were generally limited. In particular, ordinary transactional terms are limited by: 1. The scope and extent of the transaction. The term is for a single purchase or transaction, not an ongoing "relationship", with few exceptions (utilities, rental agreements, subscriptions). 2. There's a limit to the data exchanged. In general, the minimum amount of data required for a transaction is what's provided. Even where personal information was taken down, it was recorded on and remained on paper forms, rarely being converted to electronic form. This is no longer the case, where, say, a license number (or a license held as surity) for, say, an hourly boat or bicycle hire might be scanned electronically, OCRd, entered into a database, and matched with other records. 3. As noted above, information one organisation gathered on you was only rarely shared with others. This is no longer the case. As my awareness of such practices has spread, I've become vastlty less interested in transactions in which I'm aware my information is being exchanged: magazine subscriptions, credit or debit card purchases, anything with an email or postal code, etc. For a good decade or more, I refused to sign electronic signature pads. I still generally balk at this. But until terms of service are both standardised and codified with users' interests in mind, the present situation will only get worse.

ahartman00 10y ago
I like the point about the UCC. I have thought about standardized contracts myself, though I didnt think to compare it to the UCC. "But until terms of service are both standardised and codified with users' interests in mind" But what about sites with a different revenue model? Say an image hosting site meant for personal photos, and an image sharing site meant as a platform for artists to sell their work. You would not want the former allowing any sort of copyright transfer, but the latter cannot function without it(at least without the ability for the site to take payment and provide a license). Im not sure how we could standardize everything. Especially if consumers are not willing to pay a subscription. "In particular, ordinary transactional terms are limited by:" 1. But this would be an ongoing relationship, assuming they continue to use the service. 2. Again, subscription fees would be needed to sustain the business. Otherwise advertising is the only way. And there's an old joke in advertising: half of all advertising budgets are wasted, the trick is figuring out which half. I do see your point about a drivers license number not being needed for a long period of time.
- dredmorbius 10y ago
  There was an attempt to come up with a UCC for services, within the US, though it failed to garner sufficient support: UCITA. It's not clear to me how some breadth of interests couldn't be addressed. The usual T&C generally address limits on liability of the site's owners, occasionally try to impose binding arbitration or limits on class action suits (among my complaints against the so-called "Kinder, gentler Reddit", Imzy), jurisdiction, reverse-engineering clauses, etc. Allowing users to specify licenses for submitted works would address much of your concerns. A standard set of merchandise clauses, including, say, escrow, liability, and chargeback terms, might be among the boilerplate additions to a standard contract which might be made. But the point is to make the contracts themselves standard and modular. There might be a base services contract, a base merchant contract, and a base rights-for-sale contract, but not infinite variations on each. Also limits on what sites or users might carve out as grantable or transferable rights. My point in noting that ordinary commerce is limited to a single sale transaction is just that: that these are simple transactions and hence the associated legal binding is also simple. Ongoing relationships are inherently more complex. There are alternatives to advertising and subscriptions, including non-market constructs. In the example I posed, the value of the drivers license as a hire surity is that the hirer is quitely likely to return for it. The disadvantage, today, is that the license has not only the attributes of "valuable to the owner", but "hive of data which can be used to draw additional relations". Some years ago I discovered that the purchase of certain over-the-counter medications required, by store policy though not by local law, presentation of a drivers license. I held up my license for the clerk to visually examine. He tried to take it from my hand, which I refused. He wouldn't close the sale without scanning the card. I walked off without paying and without product. I've been insisting on respecting my privacy rights for some time, and am not above forgoing business, taking my business elsewhere, or making others pointedly uncomfortable for asking questions I won't answer. Sadly, I am an exception.
pdkl95 10y ago
> for any person to be able to read them This should be exploited by challenging the mutuality of the agreement. Unless there is an understanding by both parties about the basic features and requirements - a "meeting of the minds" - then there isn't a contract. Currently the "yes, I read that" buttons are used as an indication of having read and understood the contract, but as you said, actually reading all that legalese would take a long time. It may have been hard to prove otherwise in the past, but today we have another option. We now have algorithms that estimate a given text's reading level. Using that kind of technique we can algorithmically estimate how long it should take for someone to read a document, from which a conservative estimate of the minimum reading time can be derived. It would be short enough that practically everybody exceeds the estimated time. This needs to be purely mechanical. With a minimum reading time established, every contract should be nullified unless each party was given and used at least that much time to read the document. That is, allowing anybody to "sign" an EULA before $MINIMUM minutes have elapsed should be prima facie evidence that no contact exists.

wfo 10y ago

If you manage to renegotiate your contract/EULA with Apple or Facebook or Google because of your impressive ability to read and understand them, let me know. In reality, the power these companies have means there is no negotiation. They are gatekeepers to nearly necessary tools to exist in society (especially for the non-tech-savvy) and they can put whatever rules they want on those gates. Your choices are to do whatever they want or walk away. In fact, I'd posit it's a waste of time for someone who isn't a privacy attorney to read these take-it-or-leave-it-style "contracts" since you HAVE to accept them, and the only things you can argue about or discuss are provisions in the contract which are illegal or unenforceable, and that discussion happens much later in front of a judge. The ONLY way we can protect ourselves from these abusive contracts (particularly the pervasive and rights-destroying mandatory binding arbitration clauses) is to use legislation to delete them from existence. Nearly all tech companies try to use noncompetes to keep their employees in a brutal stranglehold and stop them from shopping around to try to earn the market value of their labor. California is where tech goes to flourish and startups abound, because noncompetes are banned there. We need to ban mandatory binding arbitration altogether (there is no reason it should have ever been legal), and have very strict guidelines about what kinds of privacy/tech contracts are allowed -- with punishments for companies who violate, strict ones.

pjlegato 10y ago
I mostly agree, though I think that California's massive amount of readily available tech venture capital, as compared to anywhere else on Earth, is a far more important factor in its abundance of startups, rather than its obscure law banning non-compete agreements.
- wfo 10y ago
  The law isn't obscure at all, it's a fundamental part of employment law that separates California from many other states. And saying it's due to tech VC is saying there's a lot of tech success due to the overabundance of tech success. People who work at a company can quit and start a startup, even in the same industry, carrying with them their hard-won expertise. Without a legal cloud over their heads which will scare away investment.