7 ms·

I actually don't really support these movements. I would prefer that we entirely deligitimize the notion of 'terms of service' having any measure of enforceabil

I actually don't really support these movements. I would prefer that we entirely deligitimize the notion of 'terms of service' having any measure of enforceability or weight. No, I have not read your terms and I do not agree with them. I do, however, reject the legitimacy of their use and will happily check a box that lets me proceed unmolested. And by continuing to provide your service to me, you agree that that my implicit rejection of your TOS' legitimacy is correct. That attitude from a customer towards every business is just as reasonable as a business expecting every customer to read and implicitly accept their specific and lengthy legal stipulations.

Clubber 9y ago
Unfortunately, I believe a count of law would side with the company with the TOS.
- jackmott 9y ago
  Yes, OP is aware of the current state of the universe, and proposing a new state.
  - Clubber 9y ago
    I wholeheartedly agree. With TOS and overly restrictive employee non-competes.
- deleted 9y ago
  [deleted]
- leggomylibro 9y ago
  Maybe, maybe not - it depends on how enforceable the courts consider the TOS, and I'm pretty sure they can't override actual laws or legislation. Anyways, I mostly don't think about it. Time is a scarce resource, and it's fastest (as well as perfectly reasonable) just to pretend they don't exist. Issues are unlikely to arise, and I consider anything that isn't data under my control to be at the mercy of these providers anyways. If they have a problem with how I use their service or something, they can let me know and stop serving me.
- PeterisP 9y ago
  It depends on the jurisdiction. You'd be right for USA, but in many other places click-through agreements (and shrinkwrap agreements for e.g. physically sold software) aren't worth the paper they're (not) written on, they're not considered binding.
  - nihonde 9y ago
    I'm curious: which jurisdictions won't enforce a click-through agreement?
    - OtterCoder 9y ago
      It's debatable in the US too.
      - nihonde 9y ago
        In the US, browsewrap enforcement is debatable, but my conclusion after looking into this question is that properly-formed clickwrap is enforceable in most US jurisdictions that matter.
    - sbx320 9y ago
      Germany for example. The legal argument for it is quite simple. Once a software is sold (in the "buy a license" sense), the manufacturer has no further right to limit your use of the software if they didn't include these terms into the sale contract. Therefore a manufacturer cannot force you to agree to a contract after you've already bought something. That includes click-through agreements if you need to "agree" to them in order to use the software. The only way to get a EULA to work in Germany would be to include it into the sale contract between the consumer and the vendor at the point of sale.
      - nihonde 9y ago
        I think you're confusing software shrinkwrap license terms with click-through agreements. The latter would apply to software as a service and require affirmative consent from the end user/licensee. As far I know online contracts are still enforced under the German Civil Code as long as they're properly formed, just as is the case everywhere else that I know about.
- jaredklewis 9y ago
  It depends. See MEYER V. KALANICK where the court held some provisions of uber's adhesive terms of service unenforceable since a small hyperlink to a TOS was not considered sufficient notice to the user that they were waiving their right to a trial by jury. https://casetext.com/case/meyer-v-travis-kalanick-uber-techs-inc-1 https://casetext.com/case/meyer-v-travis-kalanick-uber-techs...
  - Spivak 9y ago
    I mean neither is a giant wall of legal text that everyone is just going to skip over either.
jopsen 9y ago
I'm with you on that boat... let's hope we never get sued :) I'm not lawyer, but generally providers can't hold us to a contract if the provider didn't think we would read (bad faith contract). However, we can't void a contract by choosing not to read it. hehe... You can't outsmart the law -- so unknowingly being stupid might be the best defense :)
- QAPereo 9y ago
  Very much on your side I think would be the fact that virtually no one reads them and millions of them are clicked/signed per day. This isn't just a just a case of you not reading a contract you knew you wanted to violate, but you engaging in a very standard practice, known to the companies themselves and everyone else. The fiction of terms of services only exists so long as they go unchallenged in any major sense.
lisper 9y ago
> No, I have not read your terms and I do not agree with them. Then don't use the service. No one is holding a gun to your head.
- asp_hornet 9y ago
  How many terms of service have you read? If you haven't read it and understood it for every service you use how do you even know if you are within their terms?
  - lisper 9y ago
    > How many terms of service have you read? I haven't kept count. I've read a few. I've not read them all. > If you haven't read it and understood it for every service you use how do you even know if you are within their terms? I don't. And your point would be...?
- quadrangle 9y ago
  http://mimiandeunice.com/2011/03/31/the-social-kool-aid/ http://mimiandeunice.com/2011/03/31/the-social-kool-aid/
rhapsodic 9y ago
>I actually don't really support these movements. I would prefer that we entirely deligitimize the notion of 'terms of service' having any measure of enforceability or weight. > No, I have not read your terms and I do not agree with them. I do, however, reject the legitimacy of their use and will happily check a box that lets me proceed unmolested. Do you feel the GPL should be enforceable based on the header comments in GPLed source code?
- gpm 9y ago
  The GPL isn't a contract (in the FSF's opinion anyways), it doesn't restrict any of your rights, it simply grants you a few more. (E.g. to make copies as long as you follow certain rules) If the GPL was a contract that tried to restrict your rights, then putting in header comments should not make it enforceable.
  - rhapsodic 9y ago
    > If the GPL was a contract that tried to restrict your rights, then putting in header comments should not make it enforceable. Suppose I modified and distributed GPL code in a compiled binary, without making my modifications available in source form. Suppose also I claim that I didn't notice any header comments or LICENSE.TXT files. On what grounds would the licensor claim that I had agreed to the terms of the GPL? I'm just pointing out that people who don't think click-through TOS should be enforceable would be inconsistent to simultaneously opine that the GPL should be enforceable simply because it's packaged in text form along with the code.
    - ryanlol 9y ago
      If you didn't agree to the terms of the GPL then you simply have no right to use the code in the first place, no?
      - Spivak 9y ago
        Technically if you don't agree with the terms then you are still able to use the code. An end user can't really violate the GPL.
lightedman 9y ago
"I would prefer that we entirely deligitimize the notion of 'terms of service' having any measure of enforceability or weight." You're going to have to change copyright law, then, because one of the biggest things in any competent site's ToS is "You grant us unlimited, perpetual permission to modify/redistribute/host/etc. your content." Without that contractual agreement, most websites and forums and image hosting services could not exist as we know them today.
- Iv 9y ago
  > You're going to have to change copyright law It would be about damn time!
daxfohl 9y ago
I can't believe I can't downvote this more. Who provides services without terms to them? Moms, basically. Beyond moms, service providers have better things to do than provide those services unabated. While I can imagine that partaking of services without honoring those terms is the most awesome thing ever, who in their right mind will continue to offer services if this sympathy becomes the default?

Clubber 9y ago

Unfortunately, I believe a count of law would side with the company with the TOS.

jackmott 9y ago
Yes, OP is aware of the current state of the universe, and proposing a new state.
- Clubber 9y ago
  I wholeheartedly agree. With TOS and overly restrictive employee non-competes.
deleted 9y ago
[deleted]
leggomylibro 9y ago
Maybe, maybe not - it depends on how enforceable the courts consider the TOS, and I'm pretty sure they can't override actual laws or legislation. Anyways, I mostly don't think about it. Time is a scarce resource, and it's fastest (as well as perfectly reasonable) just to pretend they don't exist. Issues are unlikely to arise, and I consider anything that isn't data under my control to be at the mercy of these providers anyways. If they have a problem with how I use their service or something, they can let me know and stop serving me.
PeterisP 9y ago
It depends on the jurisdiction. You'd be right for USA, but in many other places click-through agreements (and shrinkwrap agreements for e.g. physically sold software) aren't worth the paper they're (not) written on, they're not considered binding.
- nihonde 9y ago
  I'm curious: which jurisdictions won't enforce a click-through agreement?
  - OtterCoder 9y ago
    It's debatable in the US too.
    - nihonde 9y ago
      In the US, browsewrap enforcement is debatable, but my conclusion after looking into this question is that properly-formed clickwrap is enforceable in most US jurisdictions that matter.
  - sbx320 9y ago
    Germany for example. The legal argument for it is quite simple. Once a software is sold (in the "buy a license" sense), the manufacturer has no further right to limit your use of the software if they didn't include these terms into the sale contract. Therefore a manufacturer cannot force you to agree to a contract after you've already bought something. That includes click-through agreements if you need to "agree" to them in order to use the software. The only way to get a EULA to work in Germany would be to include it into the sale contract between the consumer and the vendor at the point of sale.
    - nihonde 9y ago
      I think you're confusing software shrinkwrap license terms with click-through agreements. The latter would apply to software as a service and require affirmative consent from the end user/licensee. As far I know online contracts are still enforced under the German Civil Code as long as they're properly formed, just as is the case everywhere else that I know about.
jaredklewis 9y ago
It depends. See MEYER V. KALANICK where the court held some provisions of uber's adhesive terms of service unenforceable since a small hyperlink to a TOS was not considered sufficient notice to the user that they were waiving their right to a trial by jury. https://casetext.com/case/meyer-v-travis-kalanick-uber-techs-inc-1 https://casetext.com/case/meyer-v-travis-kalanick-uber-techs...
- Spivak 9y ago
  I mean neither is a giant wall of legal text that everyone is just going to skip over either.

jopsen 9y ago

I'm with you on that boat... let's hope we never get sued :) I'm not lawyer, but generally providers can't hold us to a contract if the provider didn't think we would read (bad faith contract). However, we can't void a contract by choosing not to read it. hehe... You can't outsmart the law -- so unknowingly being stupid might be the best defense :)

QAPereo 9y ago
Very much on your side I think would be the fact that virtually no one reads them and millions of them are clicked/signed per day. This isn't just a just a case of you not reading a contract you knew you wanted to violate, but you engaging in a very standard practice, known to the companies themselves and everyone else. The fiction of terms of services only exists so long as they go unchallenged in any major sense.

lisper 9y ago

> No, I have not read your terms and I do not agree with them. Then don't use the service. No one is holding a gun to your head.

asp_hornet 9y ago
How many terms of service have you read? If you haven't read it and understood it for every service you use how do you even know if you are within their terms?
- lisper 9y ago
  > How many terms of service have you read? I haven't kept count. I've read a few. I've not read them all. > If you haven't read it and understood it for every service you use how do you even know if you are within their terms? I don't. And your point would be...?
quadrangle 9y ago
http://mimiandeunice.com/2011/03/31/the-social-kool-aid/ http://mimiandeunice.com/2011/03/31/the-social-kool-aid/

rhapsodic 9y ago

>I actually don't really support these movements. I would prefer that we entirely deligitimize the notion of 'terms of service' having any measure of enforceability or weight. > No, I have not read your terms and I do not agree with them. I do, however, reject the legitimacy of their use and will happily check a box that lets me proceed unmolested. Do you feel the GPL should be enforceable based on the header comments in GPLed source code?

gpm 9y ago
The GPL isn't a contract (in the FSF's opinion anyways), it doesn't restrict any of your rights, it simply grants you a few more. (E.g. to make copies as long as you follow certain rules) If the GPL was a contract that tried to restrict your rights, then putting in header comments should not make it enforceable.
- rhapsodic 9y ago
  > If the GPL was a contract that tried to restrict your rights, then putting in header comments should not make it enforceable. Suppose I modified and distributed GPL code in a compiled binary, without making my modifications available in source form. Suppose also I claim that I didn't notice any header comments or LICENSE.TXT files. On what grounds would the licensor claim that I had agreed to the terms of the GPL? I'm just pointing out that people who don't think click-through TOS should be enforceable would be inconsistent to simultaneously opine that the GPL should be enforceable simply because it's packaged in text form along with the code.
  - ryanlol 9y ago
    If you didn't agree to the terms of the GPL then you simply have no right to use the code in the first place, no?
    - Spivak 9y ago
      Technically if you don't agree with the terms then you are still able to use the code. An end user can't really violate the GPL.

lightedman 9y ago

"I would prefer that we entirely deligitimize the notion of 'terms of service' having any measure of enforceability or weight." You're going to have to change copyright law, then, because one of the biggest things in any competent site's ToS is "You grant us unlimited, perpetual permission to modify/redistribute/host/etc. your content." Without that contractual agreement, most websites and forums and image hosting services could not exist as we know them today.

Iv 9y ago
> You're going to have to change copyright law It would be about damn time!

daxfohl 9y ago

I can't believe I can't downvote this more. Who provides services without terms to them? Moms, basically. Beyond moms, service providers have better things to do than provide those services unabated. While I can imagine that partaking of services without honoring those terms is the most awesome thing ever, who in their right mind will continue to offer services if this sympathy becomes the default?