4 ms·

I think he is saying that terms of service and user end policy agreements in their current state are completely unacceptable. We need to simplify these policies

I think he is saying that terms of service and user end policy agreements in their current state are completely unacceptable. We need to simplify these policies and contracts if we expect people to be legally accountable for understanding their contents.

nickff 6y ago
The problem is that the only reason they are complicated is because the courts require complexity. Each one of those complicated legal terms exists because of some lawsuit somewhere. Blaming it on the company, or saying that it's obfuscation simply misses the point. If we want to get rid of these complicated 'agreements', we need to change the way our legal system operates.
- throwaway_USD 6y ago
  >because the courts require complexity. No the Courts do not require complexity. The famous example in law school being writing a agreement on a cocktail napkin being an enforceable contract. The legal system may be in need of reforms, but in these instances the complexity and length of tech company TOS or PP is a direct result of these entities having an army of in-house and outside counsel looking after their own interests. There is simply a power imbalance between FAANG companies and even their most legally savvy and educated user. This has nothing to do with the courts, and if you don't believe me, then reach out to one of the FAANG legal departments and tell them you want to use their service but need to negotiate the TOS/PP first.
  - nickff 6y ago
    How many lawyers write their employment agreements, per-nuptual agreements, wills, or letters of engagement on cocktail napkins? Sure, it'd be enforceable, but almost worthless.
    - throwaway_USD 6y ago
      Pre-nups and wills are great examples of how simple agreements can be...prior to the internet you could pick up standard forms from stationary stores. Google "contract on a cocktail napkin", most of the top results will be for million dollar contracts on cocktail napkins...so maybe we just have a different opinion about "enforceable, but almost worthless."
      - nickff 6y ago
        Contracts are only important when there is a disagreement. When everyone is getting along (which is most of the time), the contract can be verbal, cocktail, form, or lengthy, and it doesn't matter. You can see this from the fact that the most contentious subjects (such as construction) have the most rigorous contracts. IANAL, but I have never heard of a lawyer writing a contract on a napkin, or advising a client to do so; and they say verbal contracts are worth the paper they're written on.
        throwaway_USD 6y ago
        >IANAL, but I have never heard of a lawyer writing a contract on a napkin, or advising a client to do so Where did I or anyone say that is what lawyers advise. In fact I specifically said it is because of their army of lawyers tech companies have long and complex TOS and PP. The point is TOS and PP are not complex because Courts require them, and the cocktail napkin contracts are examples (the pinnacle law school example) of how simple contracts can be while still being enforceable. >Contracts are only important when there is a disagreement. No, contracts are most important before the disagreement because they are what help avoid the disagreement. It would be very difficult to explain in this forum, but if you know what Summary Judgment is, breach of contract cases essentially never end in summary judgement, which is actually very counter intuitive because one would think with all breach of contract case should end in summary judgement...because the contract should speak for itself right? In other word one would think either the contract was performed/breached or it wasn't right? The thing is whether a contract was performed or breached is a question of fact for the fact finder; thus, contract cases never end at summary judgement and would always have to go to a finder of fact (judge or jury). You would probably have to spend a semester or 2 to fully grasp this concept and even then, it probably takes some actual practice of law with contract cases to fully grasp why contracts do not resolve contractual disagreements. The reality is once there is a dispute and you are seeking enforcement you would much rather have the cocktail napkin than a complex agreement, it will save you years of litigation and the cost of the same.
Wowfunhappy 6y ago
I actually don’t even think there should be contracts, unless they can be cut down to a few paragraphs. Because nothing longer than that will be read by 99% of consumers. Merely providing a bullet point summary of the contract (as I’ve seen some do, iirc GoG.com is one) is not enough—those bullet points would need to actually become the contract of record. There is no reason the absence of contracts should lead to a breakdown of the tech industry. Tech companies are already protected by extremely generous copyright laws. Maybe they wouldn’t be able to collect everyone’s data all the time, but that’s a good thing. I can’t speak as much to other industries because I know less about them. But I think e.g. landlords have a reasonable expectation that renters do read their contracts. I know I read my lease—that seems like a normal, reasonable thing to do. Reading a software ToS or Privacy Policy is, by contrast, exceptionally abnormal.
- TeMPOraL 6y ago
  > But I think e.g. landlords have a reasonable expectation that renters do read their contracts. I know I read my lease—that seems like a normal, reasonable thing to do. I also imagine it was much shorter than a typical software ToS/EULA. > Reading a software ToS or Privacy Policy is, by contrast, exceptionally abnormal. Part of the cause here is path dependence - we've been conditioned to ignore EULAs in the pre/early-Internet era, back when software walked and quacked like a product, not a service.
- gowld 6y ago
  Copyright is a totally different dimension from what ToS/EULAs cover.
  - Wowfunhappy 6y ago
    The only reason I mentioned copyright is, the classic thing all software ToS’s traditionally say is that you cannot create unauthorized copies of media. What else is in ToS’s that tech companies absolutely must be able to enforce?

nickff 6y ago

The problem is that the only reason they are complicated is because the courts require complexity. Each one of those complicated legal terms exists because of some lawsuit somewhere. Blaming it on the company, or saying that it's obfuscation simply misses the point. If we want to get rid of these complicated 'agreements', we need to change the way our legal system operates.

throwaway_USD 6y ago
>because the courts require complexity. No the Courts do not require complexity. The famous example in law school being writing a agreement on a cocktail napkin being an enforceable contract. The legal system may be in need of reforms, but in these instances the complexity and length of tech company TOS or PP is a direct result of these entities having an army of in-house and outside counsel looking after their own interests. There is simply a power imbalance between FAANG companies and even their most legally savvy and educated user. This has nothing to do with the courts, and if you don't believe me, then reach out to one of the FAANG legal departments and tell them you want to use their service but need to negotiate the TOS/PP first.
- nickff 6y ago
  How many lawyers write their employment agreements, per-nuptual agreements, wills, or letters of engagement on cocktail napkins? Sure, it'd be enforceable, but almost worthless.
  - throwaway_USD 6y ago
    Pre-nups and wills are great examples of how simple agreements can be...prior to the internet you could pick up standard forms from stationary stores. Google "contract on a cocktail napkin", most of the top results will be for million dollar contracts on cocktail napkins...so maybe we just have a different opinion about "enforceable, but almost worthless."
    - nickff 6y ago
      Contracts are only important when there is a disagreement. When everyone is getting along (which is most of the time), the contract can be verbal, cocktail, form, or lengthy, and it doesn't matter. You can see this from the fact that the most contentious subjects (such as construction) have the most rigorous contracts. IANAL, but I have never heard of a lawyer writing a contract on a napkin, or advising a client to do so; and they say verbal contracts are worth the paper they're written on.
      - throwaway_USD 6y ago
        >IANAL, but I have never heard of a lawyer writing a contract on a napkin, or advising a client to do so Where did I or anyone say that is what lawyers advise. In fact I specifically said it is because of their army of lawyers tech companies have long and complex TOS and PP. The point is TOS and PP are not complex because Courts require them, and the cocktail napkin contracts are examples (the pinnacle law school example) of how simple contracts can be while still being enforceable. >Contracts are only important when there is a disagreement. No, contracts are most important before the disagreement because they are what help avoid the disagreement. It would be very difficult to explain in this forum, but if you know what Summary Judgment is, breach of contract cases essentially never end in summary judgement, which is actually very counter intuitive because one would think with all breach of contract case should end in summary judgement...because the contract should speak for itself right? In other word one would think either the contract was performed/breached or it wasn't right? The thing is whether a contract was performed or breached is a question of fact for the fact finder; thus, contract cases never end at summary judgement and would always have to go to a finder of fact (judge or jury). You would probably have to spend a semester or 2 to fully grasp this concept and even then, it probably takes some actual practice of law with contract cases to fully grasp why contracts do not resolve contractual disagreements. The reality is once there is a dispute and you are seeking enforcement you would much rather have the cocktail napkin than a complex agreement, it will save you years of litigation and the cost of the same.

Wowfunhappy 6y ago

I actually don’t even think there should be contracts, unless they can be cut down to a few paragraphs. Because nothing longer than that will be read by 99% of consumers. Merely providing a bullet point summary of the contract (as I’ve seen some do, iirc GoG.com is one) is not enough—those bullet points would need to actually become the contract of record. There is no reason the absence of contracts should lead to a breakdown of the tech industry. Tech companies are already protected by extremely generous copyright laws. Maybe they wouldn’t be able to collect everyone’s data all the time, but that’s a good thing. I can’t speak as much to other industries because I know less about them. But I think e.g. landlords have a reasonable expectation that renters do read their contracts. I know I read my lease—that seems like a normal, reasonable thing to do. Reading a software ToS or Privacy Policy is, by contrast, exceptionally abnormal.

TeMPOraL 6y ago
> But I think e.g. landlords have a reasonable expectation that renters do read their contracts. I know I read my lease—that seems like a normal, reasonable thing to do. I also imagine it was much shorter than a typical software ToS/EULA. > Reading a software ToS or Privacy Policy is, by contrast, exceptionally abnormal. Part of the cause here is path dependence - we've been conditioned to ignore EULAs in the pre/early-Internet era, back when software walked and quacked like a product, not a service.
gowld 6y ago
Copyright is a totally different dimension from what ToS/EULAs cover.
- Wowfunhappy 6y ago
  The only reason I mentioned copyright is, the classic thing all software ToS’s traditionally say is that you cannot create unauthorized copies of media. What else is in ToS’s that tech companies absolutely must be able to enforce?