8 ms·

The legal innovation is this: by being here, you consent to <15 page contract>. Imagine that in the real world. I honestly expect it to become commonplace - by

The legal innovation is this: by being here, you consent to <15 page contract>. Imagine that in the real world. I honestly expect it to become commonplace - by entering our store, you agree to the terms posted in the binder you may ask to view.

filoleg 7y ago
That is kind of how it is already though. For a specific example, it is legal to conceal carry in public spaces in my state, but I have seen a lot of stores having some extra rules posted on their window saying that by entering the store you agree to their no-carry rule, among others.
- panarky 7y ago
  I don't know where you live, but in Texas the sign in the store's window is backed up by state law. If the property owner posts a sign that says no guns, and you carry anyway, you're guilty of an offence. Source: https://statutes.capitol.texas.gov/Docs/PE/htm/PE.30.htm#30.06 https://statutes.capitol.texas.gov/Docs/PE/htm/PE.30.htm#30....
  - deleted 7y ago
    [deleted]
  - sneak 7y ago
    In Nevada, those signs do not carry force of law.
  - filoleg 7y ago
    I think you misunderstood my comment. The parent was saying: >Imagine that in the real world. I honestly expect it to become commonplace - by entering our store, you agree to the terms posted in the binder you may ask to view. My point to this was that it isn't that much of a far-fetched scenario, as it already happens with "no guns on store premises" signs in my state. You consent to the arbitrary rule by entering the store. I bet it is already backed up by state law (not sure 100%, but I believe so), just like it is in Texas (I am in WA), so I agree with you.
sam0x17 7y ago
But see _you_ a person is not here. A bot is here, and a bot can't enter a contract.
- sam0x17 7y ago
  Seriously though. If you honestly think a bot can enter a contract, I'll set up a honeypot right now with a TOS saying that by using this website you agree to pay me $300,000, and then I'll send Google a bill when they index me. You can't have your cake and eat it too -- either it works that way, and we all should set up honeypots right now, or it doesn't work that way, and any bot I write can scrape anything I want as long as it is fully unattended and I never agree to the TOS myself.
- kevingadd 7y ago
  Bots can purchase and sell shares or futures and perform other financial transactions. Is an agreement to exchange shares for currency not a contract?
- crazygringo 7y ago
  You wrote and are running the bot, and are entirely legally responsible for its behavior, like it or not. By your logic, if someone shoots a bullet and it kills someone else, it would be the bullet's fault and not the person who pulled the trigger...?
  - EGreg 7y ago
    By your logic, the fault is of the bullet maker. If someone uses your open source software to commit a crime, is that your fault?
    - deleted 7y ago
      [deleted]
  - sam0x17 7y ago
    That's a completely different situation, legally. There are existing laws saying that I am liable for bad things my bot/creation/whatever does, but a TOS works differently -- it is a contract that a human has to read and agree to. They can put in a clause saying that "by reading this document you agree to [TOS]" or "by clicking this link you agree to [TOS]" or my favorite "by using this website you agree to [TOS]". No one is using/reading/accessing anything when the Googlebot crawls a web page, and there is no way you could have a bot agree to a TOS for you. If someone wrote a "honeypot" saying that if you access this URL you owe the author $200,000, there is no way Google would now owe that person $200,000. No human being read and agreed to a contract, so there is nothing to enforce. Now legally if you can prove that the bot author is aware of the TOS, that's a different situation, but there are a variety of situations where it is completely reasonable (search engine bots in particular) where the author will never know about the TOS.
kevingadd 7y ago
Many public places already have massive signs like this. Whether they're enforceable I have no idea, but the comparison is not direct because an owner of a business has the right to kick you out for almost any reason (there are exceptions for non-discrimination, of course).
- sneak 7y ago
  Every time I have seen one of those signs, it has contained provisions to describe manners, dress, or behavior common in poor people or minorities; it seems to me a way to codify and formalize discrimination against those groups.
Aperocky 7y ago
Legal adapted with technology. All the protocols that may look overly elaborate are repeated 1000s of time everyday per user, and it cost very little compared to <insert 10MB javascript file>. The legal document are just part of it.
m3kw9 7y ago
By entering this store you agree to buy everything you can with in your wallet
- EGreg 7y ago
  Put it in tiny text or a marginally hard to read font, then sue people who couldn't be bothered to read the note.
  - mgamache 7y ago
    yes, dark grey text on light grey background
rayiner 7y ago
At least in the Ninth Circuit, the rule is much more demanding than you imply: https://www.venable.com/insights/publications/2014/11/enforceability-of-online-terms-of-use-guidance-fro https://www.venable.com/insights/publications/2014/11/enforc.... > "[W]here a website makes its terms of use available via a conspicuous hyperlink on every page of the website but otherwise provides no notice to users nor prompts them to take any affirmative action to demonstrate assent, even close proximity of the hyperlink to relevant buttons users must click on – without more – is insufficient to give rise to constructive notice."
Spooky23 7y ago
Already happens. Many private “public” spaces like malls or housing developments are governed by a code of conduct that you are subject to by being present. The easy example are teen curfews at malls. If you look under 18, you consent to providing proof of age to enter certain areas of the mall, and cannot do so without an adult over a certain age.
- rndgermandude 7y ago
  This is different. They are enforcing their house rules, by expelling you for non-compliance and barring you from entering their property again. You are only allowed in there because they let you, after all. They cannot however put a "If you're under 18 and violate the curfew, you hereby agree to pay a contractual penalty of $1000" in their house rules and sue you for that money even tho you did not consent to their contract.
  - escape_goat 7y ago
    I am not a lawyer, so I will have to ask you to explain why not. It's not immediately obvious to me that the penalty doctrine would apply, as the penalty is not a mechanism to circumvent the recovery of damages through the courts.
    - rndgermandude 7y ago
      First of all, also not a lawyer, but it is my understanding that the penalty doctrine would most likely apply, as they aren't trying to recover liquidated damages in a reasonable amount. Moreover, it would fail the test of acceptance, because the teen in question would have had to have known about the contract and consented to it, neither of which the mall could likely demonstrate, unless e.g. they could prove they explicitly showed the thing to the teen before entering, not just hung it somewhere. And lastly, the teen being a minor, the contract would be void in most jurisdictions anyway as teens lack the capacity to enter contracts in most jurisdictions. If the teen caused actual damaged, then tort law is still an option, of course. And if the teen refuses to leave or sneaks back in later, then we're talking criminal offenses.

filoleg 7y ago

That is kind of how it is already though. For a specific example, it is legal to conceal carry in public spaces in my state, but I have seen a lot of stores having some extra rules posted on their window saying that by entering the store you agree to their no-carry rule, among others.

panarky 7y ago
I don't know where you live, but in Texas the sign in the store's window is backed up by state law. If the property owner posts a sign that says no guns, and you carry anyway, you're guilty of an offence. Source: https://statutes.capitol.texas.gov/Docs/PE/htm/PE.30.htm#30.06 https://statutes.capitol.texas.gov/Docs/PE/htm/PE.30.htm#30....
- deleted 7y ago
  [deleted]
- sneak 7y ago
  In Nevada, those signs do not carry force of law.
- filoleg 7y ago
  I think you misunderstood my comment. The parent was saying: >Imagine that in the real world. I honestly expect it to become commonplace - by entering our store, you agree to the terms posted in the binder you may ask to view. My point to this was that it isn't that much of a far-fetched scenario, as it already happens with "no guns on store premises" signs in my state. You consent to the arbitrary rule by entering the store. I bet it is already backed up by state law (not sure 100%, but I believe so), just like it is in Texas (I am in WA), so I agree with you.

sam0x17 7y ago

But see _you_ a person is not here. A bot is here, and a bot can't enter a contract.

sam0x17 7y ago
Seriously though. If you honestly think a bot can enter a contract, I'll set up a honeypot right now with a TOS saying that by using this website you agree to pay me $300,000, and then I'll send Google a bill when they index me. You can't have your cake and eat it too -- either it works that way, and we all should set up honeypots right now, or it doesn't work that way, and any bot I write can scrape anything I want as long as it is fully unattended and I never agree to the TOS myself.
kevingadd 7y ago
Bots can purchase and sell shares or futures and perform other financial transactions. Is an agreement to exchange shares for currency not a contract?
crazygringo 7y ago
You wrote and are running the bot, and are entirely legally responsible for its behavior, like it or not. By your logic, if someone shoots a bullet and it kills someone else, it would be the bullet's fault and not the person who pulled the trigger...?
- EGreg 7y ago
  By your logic, the fault is of the bullet maker. If someone uses your open source software to commit a crime, is that your fault?
  - deleted 7y ago
    [deleted]
- sam0x17 7y ago
  That's a completely different situation, legally. There are existing laws saying that I am liable for bad things my bot/creation/whatever does, but a TOS works differently -- it is a contract that a human has to read and agree to. They can put in a clause saying that "by reading this document you agree to [TOS]" or "by clicking this link you agree to [TOS]" or my favorite "by using this website you agree to [TOS]". No one is using/reading/accessing anything when the Googlebot crawls a web page, and there is no way you could have a bot agree to a TOS for you. If someone wrote a "honeypot" saying that if you access this URL you owe the author $200,000, there is no way Google would now owe that person $200,000. No human being read and agreed to a contract, so there is nothing to enforce. Now legally if you can prove that the bot author is aware of the TOS, that's a different situation, but there are a variety of situations where it is completely reasonable (search engine bots in particular) where the author will never know about the TOS.

kevingadd 7y ago

Many public places already have massive signs like this. Whether they're enforceable I have no idea, but the comparison is not direct because an owner of a business has the right to kick you out for almost any reason (there are exceptions for non-discrimination, of course).

sneak 7y ago
Every time I have seen one of those signs, it has contained provisions to describe manners, dress, or behavior common in poor people or minorities; it seems to me a way to codify and formalize discrimination against those groups.

Aperocky 7y ago

Legal adapted with technology. All the protocols that may look overly elaborate are repeated 1000s of time everyday per user, and it cost very little compared to <insert 10MB javascript file>. The legal document are just part of it.

m3kw9 7y ago

By entering this store you agree to buy everything you can with in your wallet

EGreg 7y ago
Put it in tiny text or a marginally hard to read font, then sue people who couldn't be bothered to read the note.
- mgamache 7y ago
  yes, dark grey text on light grey background

rayiner 7y ago

At least in the Ninth Circuit, the rule is much more demanding than you imply: https://www.venable.com/insights/publications/2014/11/enforceability-of-online-terms-of-use-guidance-fro https://www.venable.com/insights/publications/2014/11/enforc.... > "[W]here a website makes its terms of use available via a conspicuous hyperlink on every page of the website but otherwise provides no notice to users nor prompts them to take any affirmative action to demonstrate assent, even close proximity of the hyperlink to relevant buttons users must click on – without more – is insufficient to give rise to constructive notice."

Spooky23 7y ago

Already happens. Many private “public” spaces like malls or housing developments are governed by a code of conduct that you are subject to by being present. The easy example are teen curfews at malls. If you look under 18, you consent to providing proof of age to enter certain areas of the mall, and cannot do so without an adult over a certain age.

rndgermandude 7y ago
This is different. They are enforcing their house rules, by expelling you for non-compliance and barring you from entering their property again. You are only allowed in there because they let you, after all. They cannot however put a "If you're under 18 and violate the curfew, you hereby agree to pay a contractual penalty of $1000" in their house rules and sue you for that money even tho you did not consent to their contract.
- escape_goat 7y ago
  I am not a lawyer, so I will have to ask you to explain why not. It's not immediately obvious to me that the penalty doctrine would apply, as the penalty is not a mechanism to circumvent the recovery of damages through the courts.
  - rndgermandude 7y ago
    First of all, also not a lawyer, but it is my understanding that the penalty doctrine would most likely apply, as they aren't trying to recover liquidated damages in a reasonable amount. Moreover, it would fail the test of acceptance, because the teen in question would have had to have known about the contract and consented to it, neither of which the mall could likely demonstrate, unless e.g. they could prove they explicitly showed the thing to the teen before entering, not just hung it somewhere. And lastly, the teen being a minor, the contract would be void in most jurisdictions anyway as teens lack the capacity to enter contracts in most jurisdictions. If the teen caused actual damaged, then tort law is still an option, of course. And if the teen refuses to leave or sneaks back in later, then we're talking criminal offenses.