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Disclaimer: I hate complex / abusive T&C's, and I'm keen to see them abolished. But... It seems to me like we as a public are blaming corporations for our fail

Disclaimer: I hate complex / abusive T&C's, and I'm keen to see them abolished. But... It seems to me like we as a public are blaming corporations for our failures. As adults we're responsible for what contracts we enter into, except in cases of coercion. 99% of us were stupid enough to state that we accepted terms that we didn't even read. Especially in cases where the product/service was purely optional (Netflix, Call of Duty, etc.), I don't see how this is anything but our fault. IMO, we have not been acting as competent, responsible adults. Should we change our laws to make complex and/or abusive T&C's go away? Absolutely. But are corporate lawyers the only flawed agents here? IMO, no.

ceejayoz 9y ago
> 99% of us were stupid enough to state that we accepted terms that we didn't even read. I don't think that's fair. These things are written at a high reading level (worse than Beowulf: https://theconversation.com/googles-terms-and-conditions-are-less-readable-than-beowulf-19215 https://theconversation.com/googles-terms-and-conditions-are... ; https://www.creditcards.com/credit-card-news/unreadable-card-agreements-study.php https://www.creditcards.com/credit-card-news/unreadable-card... says credit cards require a reading level half the population lacks), with domain knowledge the vast majority of us lack. Reading them is pointless - even with a college education we don't have the information needed to detect many legal traps laid in these things. They're also extremely lengthy, and generally "subject to change at any time without notice".
- DoofusOfDeath 9y ago
  I agree with your points about the incomprehensibility and onerous terms of such agreements. And in cases of coercion or semi-coercion (e.g., it can be hard to get a job without owning a cell phone), I can understand accepting the T&C's despite those problems. That's why I'm limiting my argument to other situations such as Netflix and video games. For those situations, I'm arguing that adults should accept full responsibility for choosing to accept those horrible T&C's.
  - deleted 9y ago
    [deleted]
rabboRubble 9y ago
250 hours: that is the number of hours required to actually read all the adhesion contracts the typical American is exposed to in a year. https://www.theguardian.com/technology/2017/mar/03/terms-of-service-online-contracts-fine-print https://www.theguardian.com/technology/2017/mar/03/terms-of-... 250 hours is a full man-month of time. Do you have a free month in your calendar to read contracts and do very little else? Nobody I know has that sort of free time. So calling people or their behaviors "failures" for not reading all contracts is an unfair, unrealistic expectation.
- ASalazarMX 9y ago
  Even if all people started reading, fully understanding, and declining those contracts, they can be made longer so people stop reading them again.
- downandout 9y ago
  Access to Facebook, Spotify, or Netflix is not a human right. These are private services offered by private companies who are free to offer those services on any terms they choose. It’s fine and completely understandable that you may not have time or cannot understand the agreements under which they may choose to offer you access. Your remedy for that is to not use the services in question. Your remedy isn’t to lie to them and falsely certify that you have read and contemplated them.
  - adamsea 9y ago
    Don’t hate the human.
  - jerf 9y ago
    Bold words. Question: Off the top of your head, for what period of time may you make a claim or cause of action arising out of or related to use of Hacker News or its terms of use? I'm just curious whether you've read and understood the terms of use for the site you're making these bold claims on.
    - deleted 9y ago
salawat 9y ago
The problem is the average adult doesn't get educated in the ways of contract law. In fact, I think this is a symptom of the fact that attorneys and legal practitioners are a "protected" class with a relatively high barrier to entry to basic education in their field. While everyone has the "freedom" to learn on their own time, it seems disingenuous to be able to legally bind people who honestly have no clue what they are agreeing to. Also, from the tech perspective, UX demands that "onboarding" to a product be as minimally difficult as possible. Tech will ALWAYS give you the option to skip reading the EULA, and T&C because otherwise, most people would look at the terms being laid out and just say "Screw that noise." You have a fundamental asymmetry which will be ruthlessly exploited. If not by the legalese and banking on the user not understanding, then by the company just glossing over how skewed in their favor the terms are and rushing the user past the ugly bits to the custom designed addictive parts.
- dragonwriter 9y ago
  > In fact, I think this is a symptom of the fact that attorneys and legal practitioners are a "protected" class with a relatively high barrier to entry to basic education in their field. There's essentially no barrier to entry to basic education in the field; there are classes on the basics in most undergraduate institutions (including community colleges)—corporations and contract law (plus elements of some other subfields) often under the banner of “business law”.
  - salawat 9y ago
    Availability of the class != assurance that every citizen has taken it and passed. Furthermore, most tech companies don't even engage or give the opportunity to engage in the "negotiation" part of the contract forming process.A EULA or ToS document isn't a meeting of equals. It's a salesman rushing you down the hall telling you to sign, sign, SIGN! In fact, if nothing else, technology has provided one of the finest examples of a cautionary tale with regards to a "delegatory" legal profession (a profession where legal literacy is contained to a specialized sub-population and where literacy of the full population in the intricacies of the legal system cannot be assumed). I'd be interested in seeing a chart of user accounts of major software platforms or providers at time of ToC/EULA change in order to run the numbers to prove it, but I have a hunch that due to arbitrary/periodic ToC/EULA changes, there is a possibility that the tech industry has generated more legal contracts that no user has bothered to read or understand than the entire legal profession has honestly brokered (I.e. ensured informed consent between both parties) in its entire recorded history. Caveat emptor be damned. There is something fundamentally wrong with a system that could manage something like that.
thaumaturgy 9y ago
There supposedly exists an ideal human, one whom every demagogue on the internet imagines must exist anytime any of a number of subjects is talked about. This ideal human: - Reads every terms and conditions agreement, and understands it, for every service they intend to use -- online and in meatspace -- or chooses not to use that service; - Never drives even a couple of miles an hour over the speed limit or commits any of a number of other minor traffic infractions for which 90% of drivers swear they are never guilty; - Has taken the time to educate themselves about the various backup strategies available and has selected the correct one for their needs (and read the T&C for it); - Is aware of every applicable law in their local municipality and follows it to the letter; - Is always on time; - Always follows the latest health guidelines for sleep, exercise, and diet, no matter how many times those things change; - Has taken the time to understand password security and follows all of the current recommended best practices (and has read the T&C for all the software they use for it); - Always keeps their system and application software exactly up-to-date (always ensuring there is a viable backup first, of course, and restoring that backup as a test, of course, before proceeding with the update); - Monitors their credit score and carefully follows sound financial planning advice and all applicable tax laws; - Has learned nearly everything there is to know about their particular vehicle so that they can't be taken advantage of by shady mechanics; - Always uses whatever pronoun is appropriate for the individual they're addressing. I have never met this person, but they must exist, because if they didn't, people would start behaving as though all of these expectations, altogether, are totally unreasonable. I kind of wish this person didn't exist, so we could stop talking about them and instead start talking more honestly about some of the challenges our society faces.
- notabee 9y ago
  This is much like the illusory rational economic actor, or the imaginary private property rights that libertarians insist must exist without a government with laws (and weapons) or [insert alternative that possesses weapons and you hope is benevolent]. All of these ideas share a common theme of seeking an easy intellectual shorthand, an oversimplification, and being unwilling to engage in the messy chaos of reality and humanity.
belorn 9y ago
Humans are very flawed. If a person sends out thousands of bill looking letters (writing in fine print that its an offer), some will just pay without looking. Adware that infects machine and inject harmful code is being presented as free games, quiz, or antivirus and those get installed. Others will get called and accept unnecessary deals, with some elderly people pilling up multiple subscriptions. Those are just the grey legal areas, as then we have the world of direct lies, fraud and scams. People are flawed or else 99% of the illegal activity in the world would not work. Competent and responsible adults can still be tricked, fooled or bamboozled. T&C are however useally about stuff that has a $40 price tag rather than $200k car, so there hasn't been much pressure to create laws to make it fair. There is also the aspect that when T&C get into the courts the legal system has been rather skeptical about the unbalanced terms and if it can ever been said that the consumer has had informed consent, so it usually sort it self out without political intervention.
adamsea 9y ago
> 99% of us were stupid enough to state that we accepted terms that we didn't even read. It’s not stupid. It’s a smart, savvy practical decision. There’s not much reward for investing the time and effort to read and understand TOS which are not easy to parse. Plus we don’t have much choice. For the nontechnical user there simply isn’t an alternative service in most instances, much less one with a less onerous TOS.
projektir 9y ago
I think this is using an overly simplistic blame/responsibility model and if we don't want to have more problems on our hands, we really need to change it. > 99% of us were stupid enough to state that we accepted terms that we didn't even read. Well, here's the thing, if 99% of people do something, what's going on here? That's an extremely high rate. Surely if this was a normal choice, there would be a large dissent group? 20% at least? This doesn't sound like it was a real choice. And consider how it plays out. If choosing the right way is a highly unusual action (1%), and you make this a personal responsibility thing, for any given T&C you cannot use the program. Both because they're too long to read and because you can't agree with them. No phone, no internet, no bank accounts, no entertainment. Since choosing this way already makes you highly unusual, this all just effectively cuts you off from society. People cannot be individually responsible for mass behaviors. It doesn't really work. Mass behaviors are managed by memetics, which is a higher level force that only specific individuals, or groups of individuals, can actually manipulate. So I disagree with you entirely. If anyone is responsible for the 99% T&C acceptance rate, it's pretty much never going to be individuals. If we do try to select a person or a group of people, it would be people who manage media and marketing, since memetics is their job.
- borplk 9y ago
  Thank you. Is this a fallacy with a established name? ("nobody is doing it right but it's obviously must be their fault") People do this with programming languages as well. "haha everyone's making stupid mistakes using this language .. it can't be the language so we should blame the people"
vannevar 9y ago
B2C contracts are not contracts between equals, and it is as foolish to apply the same standards to businesses and consumers as it is to treat pedestrians like automobiles for purposes of traffic law. The reality is that businesses can afford lawyers to spend time on a contract they will use with a million consumers, but the consumers cannot afford lawyers for the hundreds of B2C contracts they are presented with in the ordinary course of life.
Firadeoclus 9y ago
I would say accepting that we are flawed agents is pretty much the point. If people are, in fact, acting stupid some of the time, prone to fall for certain persuasion tactics and subject to biases and common fallacies, then maybe a rule such as "as adults we're responsible for what contracts we enter into, except in cases of coercion" simply doesn't cut it.

ceejayoz 9y ago

> 99% of us were stupid enough to state that we accepted terms that we didn't even read. I don't think that's fair. These things are written at a high reading level (worse than Beowulf: https://theconversation.com/googles-terms-and-conditions-are-less-readable-than-beowulf-19215 https://theconversation.com/googles-terms-and-conditions-are... ; https://www.creditcards.com/credit-card-news/unreadable-card-agreements-study.php https://www.creditcards.com/credit-card-news/unreadable-card... says credit cards require a reading level half the population lacks), with domain knowledge the vast majority of us lack. Reading them is pointless - even with a college education we don't have the information needed to detect many legal traps laid in these things. They're also extremely lengthy, and generally "subject to change at any time without notice".

DoofusOfDeath 9y ago
I agree with your points about the incomprehensibility and onerous terms of such agreements. And in cases of coercion or semi-coercion (e.g., it can be hard to get a job without owning a cell phone), I can understand accepting the T&C's despite those problems. That's why I'm limiting my argument to other situations such as Netflix and video games. For those situations, I'm arguing that adults should accept full responsibility for choosing to accept those horrible T&C's.
- deleted 9y ago
  [deleted]

rabboRubble 9y ago

250 hours: that is the number of hours required to actually read all the adhesion contracts the typical American is exposed to in a year. https://www.theguardian.com/technology/2017/mar/03/terms-of-service-online-contracts-fine-print https://www.theguardian.com/technology/2017/mar/03/terms-of-... 250 hours is a full man-month of time. Do you have a free month in your calendar to read contracts and do very little else? Nobody I know has that sort of free time. So calling people or their behaviors "failures" for not reading all contracts is an unfair, unrealistic expectation.

ASalazarMX 9y ago
Even if all people started reading, fully understanding, and declining those contracts, they can be made longer so people stop reading them again.
downandout 9y ago
Access to Facebook, Spotify, or Netflix is not a human right. These are private services offered by private companies who are free to offer those services on any terms they choose. It’s fine and completely understandable that you may not have time or cannot understand the agreements under which they may choose to offer you access. Your remedy for that is to not use the services in question. Your remedy isn’t to lie to them and falsely certify that you have read and contemplated them.
- adamsea 9y ago
  Don’t hate the human.
- jerf 9y ago
  Bold words. Question: Off the top of your head, for what period of time may you make a claim or cause of action arising out of or related to use of Hacker News or its terms of use? I'm just curious whether you've read and understood the terms of use for the site you're making these bold claims on.
  - deleted 9y ago

salawat 9y ago

The problem is the average adult doesn't get educated in the ways of contract law. In fact, I think this is a symptom of the fact that attorneys and legal practitioners are a "protected" class with a relatively high barrier to entry to basic education in their field. While everyone has the "freedom" to learn on their own time, it seems disingenuous to be able to legally bind people who honestly have no clue what they are agreeing to. Also, from the tech perspective, UX demands that "onboarding" to a product be as minimally difficult as possible. Tech will ALWAYS give you the option to skip reading the EULA, and T&C because otherwise, most people would look at the terms being laid out and just say "Screw that noise." You have a fundamental asymmetry which will be ruthlessly exploited. If not by the legalese and banking on the user not understanding, then by the company just glossing over how skewed in their favor the terms are and rushing the user past the ugly bits to the custom designed addictive parts.

dragonwriter 9y ago
> In fact, I think this is a symptom of the fact that attorneys and legal practitioners are a "protected" class with a relatively high barrier to entry to basic education in their field. There's essentially no barrier to entry to basic education in the field; there are classes on the basics in most undergraduate institutions (including community colleges)—corporations and contract law (plus elements of some other subfields) often under the banner of “business law”.
- salawat 9y ago
  Availability of the class != assurance that every citizen has taken it and passed. Furthermore, most tech companies don't even engage or give the opportunity to engage in the "negotiation" part of the contract forming process.A EULA or ToS document isn't a meeting of equals. It's a salesman rushing you down the hall telling you to sign, sign, SIGN! In fact, if nothing else, technology has provided one of the finest examples of a cautionary tale with regards to a "delegatory" legal profession (a profession where legal literacy is contained to a specialized sub-population and where literacy of the full population in the intricacies of the legal system cannot be assumed). I'd be interested in seeing a chart of user accounts of major software platforms or providers at time of ToC/EULA change in order to run the numbers to prove it, but I have a hunch that due to arbitrary/periodic ToC/EULA changes, there is a possibility that the tech industry has generated more legal contracts that no user has bothered to read or understand than the entire legal profession has honestly brokered (I.e. ensured informed consent between both parties) in its entire recorded history. Caveat emptor be damned. There is something fundamentally wrong with a system that could manage something like that.

thaumaturgy 9y ago

There supposedly exists an ideal human, one whom every demagogue on the internet imagines must exist anytime any of a number of subjects is talked about. This ideal human: - Reads every terms and conditions agreement, and understands it, for every service they intend to use -- online and in meatspace -- or chooses not to use that service; - Never drives even a couple of miles an hour over the speed limit or commits any of a number of other minor traffic infractions for which 90% of drivers swear they are never guilty; - Has taken the time to educate themselves about the various backup strategies available and has selected the correct one for their needs (and read the T&C for it); - Is aware of every applicable law in their local municipality and follows it to the letter; - Is always on time; - Always follows the latest health guidelines for sleep, exercise, and diet, no matter how many times those things change; - Has taken the time to understand password security and follows all of the current recommended best practices (and has read the T&C for all the software they use for it); - Always keeps their system and application software exactly up-to-date (always ensuring there is a viable backup first, of course, and restoring that backup as a test, of course, before proceeding with the update); - Monitors their credit score and carefully follows sound financial planning advice and all applicable tax laws; - Has learned nearly everything there is to know about their particular vehicle so that they can't be taken advantage of by shady mechanics; - Always uses whatever pronoun is appropriate for the individual they're addressing. I have never met this person, but they must exist, because if they didn't, people would start behaving as though all of these expectations, altogether, are totally unreasonable. I kind of wish this person didn't exist, so we could stop talking about them and instead start talking more honestly about some of the challenges our society faces.

notabee 9y ago
This is much like the illusory rational economic actor, or the imaginary private property rights that libertarians insist must exist without a government with laws (and weapons) or [insert alternative that possesses weapons and you hope is benevolent]. All of these ideas share a common theme of seeking an easy intellectual shorthand, an oversimplification, and being unwilling to engage in the messy chaos of reality and humanity.

belorn 9y ago

Humans are very flawed. If a person sends out thousands of bill looking letters (writing in fine print that its an offer), some will just pay without looking. Adware that infects machine and inject harmful code is being presented as free games, quiz, or antivirus and those get installed. Others will get called and accept unnecessary deals, with some elderly people pilling up multiple subscriptions. Those are just the grey legal areas, as then we have the world of direct lies, fraud and scams. People are flawed or else 99% of the illegal activity in the world would not work. Competent and responsible adults can still be tricked, fooled or bamboozled. T&C are however useally about stuff that has a $40 price tag rather than $200k car, so there hasn't been much pressure to create laws to make it fair. There is also the aspect that when T&C get into the courts the legal system has been rather skeptical about the unbalanced terms and if it can ever been said that the consumer has had informed consent, so it usually sort it self out without political intervention.

adamsea 9y ago

> 99% of us were stupid enough to state that we accepted terms that we didn't even read. It’s not stupid. It’s a smart, savvy practical decision. There’s not much reward for investing the time and effort to read and understand TOS which are not easy to parse. Plus we don’t have much choice. For the nontechnical user there simply isn’t an alternative service in most instances, much less one with a less onerous TOS.

projektir 9y ago

I think this is using an overly simplistic blame/responsibility model and if we don't want to have more problems on our hands, we really need to change it. > 99% of us were stupid enough to state that we accepted terms that we didn't even read. Well, here's the thing, if 99% of people do something, what's going on here? That's an extremely high rate. Surely if this was a normal choice, there would be a large dissent group? 20% at least? This doesn't sound like it was a real choice. And consider how it plays out. If choosing the right way is a highly unusual action (1%), and you make this a personal responsibility thing, for any given T&C you cannot use the program. Both because they're too long to read and because you can't agree with them. No phone, no internet, no bank accounts, no entertainment. Since choosing this way already makes you highly unusual, this all just effectively cuts you off from society. People cannot be individually responsible for mass behaviors. It doesn't really work. Mass behaviors are managed by memetics, which is a higher level force that only specific individuals, or groups of individuals, can actually manipulate. So I disagree with you entirely. If anyone is responsible for the 99% T&C acceptance rate, it's pretty much never going to be individuals. If we do try to select a person or a group of people, it would be people who manage media and marketing, since memetics is their job.

borplk 9y ago
Thank you. Is this a fallacy with a established name? ("nobody is doing it right but it's obviously must be their fault") People do this with programming languages as well. "haha everyone's making stupid mistakes using this language .. it can't be the language so we should blame the people"

vannevar 9y ago

B2C contracts are not contracts between equals, and it is as foolish to apply the same standards to businesses and consumers as it is to treat pedestrians like automobiles for purposes of traffic law. The reality is that businesses can afford lawyers to spend time on a contract they will use with a million consumers, but the consumers cannot afford lawyers for the hundreds of B2C contracts they are presented with in the ordinary course of life.

Firadeoclus 9y ago

I would say accepting that we are flawed agents is pretty much the point. If people are, in fact, acting stupid some of the time, prone to fall for certain persuasion tactics and subject to biases and common fallacies, then maybe a rule such as "as adults we're responsible for what contracts we enter into, except in cases of coercion" simply doesn't cut it.