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> Lying or breaking TOS is different than hacking. I think this is a good analogy: I accepted the terms, but I was lying. Sue me for lying then. TOS are not co

> Lying or breaking TOS is different than hacking. I think this is a good analogy: I accepted the terms, but I was lying. Sue me for lying then. TOS are not contracts for sure, as nobody is expected to actually read them and they aren't negotiatable.

abnry 7y ago
Genuine question: if it isn't a contract, what legal purpose does a terms of service serve then? I assume any website serving a non-paying user has the right to terminate any services at any point, no reason given. A ToS might establish credibility among users as an open display of policy, but I don't see a legal purpose.
- danmg 7y ago
  Outside of limiting their own legal liability, it's a cargo cult.
  - abnry 7y ago
    Ah, so legal liability is to protect the company from prosecution? It is not clear to me that a company needs to say they don't support illegal behavior by the users. It also isn't clear to me that a non-paying user can ever prosecute a website for refusing a service on the basis of the companies terms of service. If the company is already doing something illegal, then it is based on the current legal statutes that they can be prosecuted. I probably don't understand legal liability here.
    - gowld 7y ago
      The law is fuzzy. If a user breaks law while using a service, there's a question of whether the service was a willing participant or abbetor. ToS helps make a case that the service is not a willing participant or abbetor
      - bilbo0s 7y ago
        True, but it goes a bit further. You also have to enforce the ToS. So Backpage or Craigslist personals are not able to just say, "We're not guilty of aiding prostitution. We tell users not to do that in our ToS." No, as is the case with Backpage, they could still be held liable if they never actually removed anyone who was engaged in prostitution. It's not enough to say illegal things are not allowed and then look the other way. You have to say illegal things are not allowed, and come down hard on anyone doing those illegal things. I don't remember the particulars since it was so long ago, but I believe craigslist went so far that they just removed any category that might be used for prostitution. In a court of law, that would be how you demonstrate that you're deserving of liability protection. Backpage was in a significantly different position, because they thought not enforcing anything would give them legal liability. Not smart.
    - kd5bjo 7y ago
      It’s not just about criminal liability, but also civil. If one user of the site does something that harms another, it’s useful for the site to be able to show that one or both of the users were breaking the rules in an attempt to stay innocent in the jury’s eyes. You can see similar effects all over the place. When was the last time you saw a hotel actually enforcing any of their pool rules? Some rules are there because the owner actually cares, but others are there so the owner can say “I warned you” if they’re ever in court. Telling the difference between the two is often quite hard.
    - bryanrasmussen 7y ago
      well, for a contract some sort of exchange has to have taken place. The website has given usage of the site, but the user has not given them payment. So yes, they don't have a breach of contract if they are refused access to the site - but wait! Some intrepid person could waste a lot of money arguing that all the personal data the site collected was of value and therefore an exchange happened that meant they could not just cancel access to the site, unless of course they also scrubbed that data etc. etc.
    - derefr 7y ago
      > It is not clear to me that a company needs to say they don't support illegal behavior by the users. Not just that they "don't support illegal behavior", but more specifically that if you give them your money for a service, and then use that service to do something illegal, then they want to be able to cancel your service while keeping the money you gave them for that service. (Or, similarly, if you buy a product from them, then use that product to do something illegal, they want to be off the hook for processing any potential refund on that product.) It's sort of like the rule most companies have where swearing at the tech support worker allows them to hang up on you, when they'd otherwise be obligated to stay on the line. The TOS allows allows a company to, upon seeing that you've broken it, immediately claim everything in your account-receivable, and to close your account-payable without making it current.
- bilbo0s 7y ago
  Limits legal liability of the site. Gives site reasons to bar users. But I don't think it should give site the ability to prosecute users. That power should lie with the state. If a user hacks to get into a server, the state already has laws against that, just call the cops. But you can't point to a clause in your ToS saying, "User X broke term Y, which is hacking." No. The state defines what actions are hacking.
- gentleman11 7y ago
  I think they just act as notifications of official policy
- naasking 7y ago
  > I don't see a legal purpose. The courts will hold a corporation accountable to its own terms of service, ie. if they, say, terminated an account against their own terms, then they could suffer penalties.
chacham15 7y ago
> TOS are not contracts for sure Please be careful when you make legal claims, especially when they probably arent true. IANAL but AFAIK most TOS fall under whats called a shrink wrap contract: https://en.wikipedia.org/wiki/Shrink_wrap_contract https://en.wikipedia.org/wiki/Shrink_wrap_contract
- distances 7y ago
  Yeah IANAL obviously. I'm from Europe and basically treat them as non-binding suggestions. In my layman's understanding they aren't valid as nobody reads or signs them, but be aware that your local court may decide otherwise if push comes to shove.
- 2OEH8eoCRo0 7y ago
  >The legal status of shrink wrap contracts in the US is somewhat unclear.
  - phkahler 7y ago
    The EULA is the only thing that claims clicking the "I Agree" button means anything other than "press here to install". If you reject the terms of the EULA and press the poorly labeled install button you haven't agreed to anything have you? What if the software company doesnt exist any more? Who is the other party to the so-called agreement?
- bawolff 7y ago
  IANAL but the article you link to claims that it is unclear in the usa if shrink wrap contracts are enforceable/real contracts.
  - phkahler 7y ago
    IANAL but I thought contracts needed acknowledgement from both parties. Mr software vendor, can you tell me weather or not your company has entered into a "shrink wrap" contract with my client? Or me? Or the honorable judge?
- 7y ago
SkyBelow 7y ago
What happens when this logic is applied elsewhere? Lies for financial gain can become fraud. Is it acceptable to make it so lying for financial gain won't be a crime? What about lying for the sake of obtaining consent? Legal jurisdictions are starting to make this a crime, at least in limited instances (such as lying about use of certain birth control measures). One can even look at social engineering, which is considered a form of hacking, that specializes in lying to people or presenting false narratives. These all seem edge cases that still need to be handled.
- stickfigure 7y ago
  > Lies for financial gain can become fraud. You just answered this for yourself. This edge case is already handled by the criminal fraud statutes.
wang_li 7y ago
Contracts don’t have to be negotiable. https://legaldictionary.net/adhesion-contract/ https://legaldictionary.net/adhesion-contract/

abnry 7y ago

Genuine question: if it isn't a contract, what legal purpose does a terms of service serve then? I assume any website serving a non-paying user has the right to terminate any services at any point, no reason given. A ToS might establish credibility among users as an open display of policy, but I don't see a legal purpose.

danmg 7y ago
Outside of limiting their own legal liability, it's a cargo cult.
- abnry 7y ago
  Ah, so legal liability is to protect the company from prosecution? It is not clear to me that a company needs to say they don't support illegal behavior by the users. It also isn't clear to me that a non-paying user can ever prosecute a website for refusing a service on the basis of the companies terms of service. If the company is already doing something illegal, then it is based on the current legal statutes that they can be prosecuted. I probably don't understand legal liability here.
  - gowld 7y ago
    The law is fuzzy. If a user breaks law while using a service, there's a question of whether the service was a willing participant or abbetor. ToS helps make a case that the service is not a willing participant or abbetor
    - bilbo0s 7y ago
      True, but it goes a bit further. You also have to enforce the ToS. So Backpage or Craigslist personals are not able to just say, "We're not guilty of aiding prostitution. We tell users not to do that in our ToS." No, as is the case with Backpage, they could still be held liable if they never actually removed anyone who was engaged in prostitution. It's not enough to say illegal things are not allowed and then look the other way. You have to say illegal things are not allowed, and come down hard on anyone doing those illegal things. I don't remember the particulars since it was so long ago, but I believe craigslist went so far that they just removed any category that might be used for prostitution. In a court of law, that would be how you demonstrate that you're deserving of liability protection. Backpage was in a significantly different position, because they thought not enforcing anything would give them legal liability. Not smart.
  - kd5bjo 7y ago
    It’s not just about criminal liability, but also civil. If one user of the site does something that harms another, it’s useful for the site to be able to show that one or both of the users were breaking the rules in an attempt to stay innocent in the jury’s eyes. You can see similar effects all over the place. When was the last time you saw a hotel actually enforcing any of their pool rules? Some rules are there because the owner actually cares, but others are there so the owner can say “I warned you” if they’re ever in court. Telling the difference between the two is often quite hard.
  - bryanrasmussen 7y ago
    well, for a contract some sort of exchange has to have taken place. The website has given usage of the site, but the user has not given them payment. So yes, they don't have a breach of contract if they are refused access to the site - but wait! Some intrepid person could waste a lot of money arguing that all the personal data the site collected was of value and therefore an exchange happened that meant they could not just cancel access to the site, unless of course they also scrubbed that data etc. etc.
  - derefr 7y ago
    > It is not clear to me that a company needs to say they don't support illegal behavior by the users. Not just that they "don't support illegal behavior", but more specifically that if you give them your money for a service, and then use that service to do something illegal, then they want to be able to cancel your service while keeping the money you gave them for that service. (Or, similarly, if you buy a product from them, then use that product to do something illegal, they want to be off the hook for processing any potential refund on that product.) It's sort of like the rule most companies have where swearing at the tech support worker allows them to hang up on you, when they'd otherwise be obligated to stay on the line. The TOS allows allows a company to, upon seeing that you've broken it, immediately claim everything in your account-receivable, and to close your account-payable without making it current.
bilbo0s 7y ago
Limits legal liability of the site. Gives site reasons to bar users. But I don't think it should give site the ability to prosecute users. That power should lie with the state. If a user hacks to get into a server, the state already has laws against that, just call the cops. But you can't point to a clause in your ToS saying, "User X broke term Y, which is hacking." No. The state defines what actions are hacking.
gentleman11 7y ago
I think they just act as notifications of official policy
naasking 7y ago
> I don't see a legal purpose. The courts will hold a corporation accountable to its own terms of service, ie. if they, say, terminated an account against their own terms, then they could suffer penalties.

chacham15 7y ago

> TOS are not contracts for sure Please be careful when you make legal claims, especially when they probably arent true. IANAL but AFAIK most TOS fall under whats called a shrink wrap contract: https://en.wikipedia.org/wiki/Shrink_wrap_contract https://en.wikipedia.org/wiki/Shrink_wrap_contract

distances 7y ago
Yeah IANAL obviously. I'm from Europe and basically treat them as non-binding suggestions. In my layman's understanding they aren't valid as nobody reads or signs them, but be aware that your local court may decide otherwise if push comes to shove.
2OEH8eoCRo0 7y ago
>The legal status of shrink wrap contracts in the US is somewhat unclear.
- phkahler 7y ago
  The EULA is the only thing that claims clicking the "I Agree" button means anything other than "press here to install". If you reject the terms of the EULA and press the poorly labeled install button you haven't agreed to anything have you? What if the software company doesnt exist any more? Who is the other party to the so-called agreement?
bawolff 7y ago
IANAL but the article you link to claims that it is unclear in the usa if shrink wrap contracts are enforceable/real contracts.
- phkahler 7y ago
  IANAL but I thought contracts needed acknowledgement from both parties. Mr software vendor, can you tell me weather or not your company has entered into a "shrink wrap" contract with my client? Or me? Or the honorable judge?
7y ago

SkyBelow 7y ago

What happens when this logic is applied elsewhere? Lies for financial gain can become fraud. Is it acceptable to make it so lying for financial gain won't be a crime? What about lying for the sake of obtaining consent? Legal jurisdictions are starting to make this a crime, at least in limited instances (such as lying about use of certain birth control measures). One can even look at social engineering, which is considered a form of hacking, that specializes in lying to people or presenting false narratives. These all seem edge cases that still need to be handled.

stickfigure 7y ago
> Lies for financial gain can become fraud. You just answered this for yourself. This edge case is already handled by the criminal fraud statutes.

wang_li 7y ago

Contracts don’t have to be negotiable. https://legaldictionary.net/adhesion-contract/ https://legaldictionary.net/adhesion-contract/