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I don’t think time spent would matter if someone took the deliberate action of clicking “Accept.” It’s like arguing that you didn’t read a contract before you s

I don’t think time spent would matter if someone took the deliberate action of clicking “Accept.” It’s like arguing that you didn’t read a contract before you signed. You still signed. I’m not arguing in favor of TOS. I just don’t buy this. The “I do not agree,” method reminds me of the tactics of “sovereign citizens.” They try to game things via highly specific language. People think they can loophole the system, but still get snared. SCs still go to jail.

rusk 6y ago
> You still signed Prove it was me that signed. Prove it was me that clicked accept.
- aflag 6y ago
  In order to access the service you need to register. The registration form would not allow you to register without accepting it. They only need to prove that you indeed access the service. That doesn't seem too hard to prove for most services out there, or at least the most popular ones.
  - icedchai 6y ago
    I think you missed the point. They can't prove it was him actually filling out the registration form, only someone from some IP address at a specific time. They can't prove the person who logs in using that registered username/password is the same one that accepted the TOS. ToSes are mostly useless. They generally contain a line that indicates the terms can change at any time and you accept them by continuing to use the service.
    - aflag 6y ago
      I guess you'll need to convince the judge that there's reasonable doubt that you did not create the Facebook account that you use and that you were unaware of the ToS and not acting in bad faith. Not saying it's impossible, but it's not as difficult to enforce the ToS as it has been suggested. They are certainly not useless.
      - icedchai 6y ago
        They are useless in that reading them is pointless since they can be modified and/or enforced arbitrarily. If you violate the ToS, the site might kick you off. If you do something the site doesn't like, they can change the ToS and kick you off anyway.
  - hansvm 6y ago
    It's not really that cut and dry. - They need to prove that "you" accessed the service, not somebody claiming to be you, somebody with the same full name and rough location as you, etc. - Websites are often pretty bad at actually requiring ToS acceptance to register. The fact that you've accessed the service doesn't necessarily imply you've accepted anything. - Even if registration is ironclad, accessing the service won't prove you agreed to any particular version of the ToS. The ever popular amend-at-will clauses never hold up in court, so you really do need to know which version was agreed to. - ToS are often presented coercively. Maybe you've already signed a lease and moved in, but to actually pay your rent you need to accept an additional one or more third-party ToS because the landlord doesn't accept cash or checks. Maybe you've already paid for your vehicle registration, and after the cash is removed from your account you're presented with additional terms that need to be agreed to in order to receive your tags. Even if you've agreed to some specific contract, that kind of coercion can invalidate the additional terms, even though the party whose ToS you agreed to might not have known about the coercion.
Wowfunhappy 6y ago
My take is that if one party to a contract does not have a reasonable expectation that the contract was read by the other party, the contract should be invalid. People need to know what they’re signing. Imagine if a celebrity was signing a bunch of autographs for fans, and someone surreptitiously stuck a contract under their hand. We can agree that wouldn’t be valid, right?
- johannes1234321 6y ago
  You deliberately chose not to read it. Why should you then be allowed to use the service AND claim not being bound by the terms? (And yes, I think german law has the right principle there: clauses which are "unexpected" to an average consumer are invalid with consumers (different in B2B context), thus risk as consumer is low when blindly accepting)
  - WindyLakeReturn 6y ago
    >Why should you then be allowed to use the service AND claim not being bound by the terms? It is like a child signing a contract. The child isn't bound to it, but the other party is. In this case, a corporation attempted to use an extreme disparity in knowledge and power to take advantage of a much weaker party. The disparity is larger than that between an average adult and an average child. As a consequence of this, it seems just as fair as in the case of contracts signed by children.
    - johannes1234321 6y ago
      The Child is assumed to be unable to sign a legal contract. You are able and chose not to. (Unless maybe you have a mental disability and then some caretaker)
    - bigwavedave 6y ago
      >It's like a child signing a contract. I don't know if I'd go that far. There's a whole class of laws around protecting children (two quick examples here in the US: age of consent; being tried as a minor vs tried as an adult) because the reality is that, in general, children are easier than adults to exploit. I mean, I convinced my nephew over the holiday that eating all his broccoli was like doing extra credit for Santa Claus, so it would cancel out the naughty action of eating one of the cookies he put out for Santa. Saying that an adult agreeing to an unread ToS is unenforceable because we don't hold children accountable for signed contracts is plain nonsense.
clairity 6y ago
time spent doesn't work because it's only loosely correlated to the actual behavior they're trying to track, which is to read the tos. reading is not even perfectly correlated with understanding the tos, which is what we're really after. this type of mistaken logic (loose correlations taken as tight ones) is everywhere. it's so common to look for secondary characteristics that can stand in for the desired one. and that's often how we get unintended consequences.
scotty79 6y ago
I often don't even read what's written on the button? Am I lefally accepting something even if I'm just cliking buttons randomly to make anything useful happen in your app?
- mmcconnell1618 6y ago
  If you randomly clicked the accept button before you realized that is was asking you to agree to TOS, can you get back to the terms? I just realized that 99% of the sites that have TOS do not send me a copy of what I just agreed to or have anyway to get back to that screen. In most other circumstances, both sides of the agreement receive a signed copy for their records.
salawat 6y ago
actually, this is a great detriment to every form of established contract law as we've trivialized what it means to establish a legal contract. Easy com, easy go. A contract requires consideration, and a meeting of the minds. If you can't even request a change to the terms for your agreement, it isn't a spiritually valid contract. It's the difference between actually being prepared to negotiate, and making an ultimatum. ToS's are often presented in the forms of ultimatum's with no alternatives. That I do not accept.
wittyreference 6y ago
Actually signing a contract doesn't begin and end at a signature. It requires a meeting of the minds, which the signature is meant to represent. A contract without a meeting of the minds - such as a contract presented in a context coercing the counterparty not to have an attorney parse it for them - is invalid, signature or no.

rusk 6y ago

> You still signed Prove it was me that signed. Prove it was me that clicked accept.

aflag 6y ago
In order to access the service you need to register. The registration form would not allow you to register without accepting it. They only need to prove that you indeed access the service. That doesn't seem too hard to prove for most services out there, or at least the most popular ones.
- icedchai 6y ago
  I think you missed the point. They can't prove it was him actually filling out the registration form, only someone from some IP address at a specific time. They can't prove the person who logs in using that registered username/password is the same one that accepted the TOS. ToSes are mostly useless. They generally contain a line that indicates the terms can change at any time and you accept them by continuing to use the service.
  - aflag 6y ago
    I guess you'll need to convince the judge that there's reasonable doubt that you did not create the Facebook account that you use and that you were unaware of the ToS and not acting in bad faith. Not saying it's impossible, but it's not as difficult to enforce the ToS as it has been suggested. They are certainly not useless.
    - icedchai 6y ago
      They are useless in that reading them is pointless since they can be modified and/or enforced arbitrarily. If you violate the ToS, the site might kick you off. If you do something the site doesn't like, they can change the ToS and kick you off anyway.
- hansvm 6y ago
  It's not really that cut and dry. - They need to prove that "you" accessed the service, not somebody claiming to be you, somebody with the same full name and rough location as you, etc. - Websites are often pretty bad at actually requiring ToS acceptance to register. The fact that you've accessed the service doesn't necessarily imply you've accepted anything. - Even if registration is ironclad, accessing the service won't prove you agreed to any particular version of the ToS. The ever popular amend-at-will clauses never hold up in court, so you really do need to know which version was agreed to. - ToS are often presented coercively. Maybe you've already signed a lease and moved in, but to actually pay your rent you need to accept an additional one or more third-party ToS because the landlord doesn't accept cash or checks. Maybe you've already paid for your vehicle registration, and after the cash is removed from your account you're presented with additional terms that need to be agreed to in order to receive your tags. Even if you've agreed to some specific contract, that kind of coercion can invalidate the additional terms, even though the party whose ToS you agreed to might not have known about the coercion.

Wowfunhappy 6y ago

My take is that if one party to a contract does not have a reasonable expectation that the contract was read by the other party, the contract should be invalid. People need to know what they’re signing. Imagine if a celebrity was signing a bunch of autographs for fans, and someone surreptitiously stuck a contract under their hand. We can agree that wouldn’t be valid, right?

johannes1234321 6y ago
You deliberately chose not to read it. Why should you then be allowed to use the service AND claim not being bound by the terms? (And yes, I think german law has the right principle there: clauses which are "unexpected" to an average consumer are invalid with consumers (different in B2B context), thus risk as consumer is low when blindly accepting)
- WindyLakeReturn 6y ago
  >Why should you then be allowed to use the service AND claim not being bound by the terms? It is like a child signing a contract. The child isn't bound to it, but the other party is. In this case, a corporation attempted to use an extreme disparity in knowledge and power to take advantage of a much weaker party. The disparity is larger than that between an average adult and an average child. As a consequence of this, it seems just as fair as in the case of contracts signed by children.
  - johannes1234321 6y ago
    The Child is assumed to be unable to sign a legal contract. You are able and chose not to. (Unless maybe you have a mental disability and then some caretaker)
  - bigwavedave 6y ago
    >It's like a child signing a contract. I don't know if I'd go that far. There's a whole class of laws around protecting children (two quick examples here in the US: age of consent; being tried as a minor vs tried as an adult) because the reality is that, in general, children are easier than adults to exploit. I mean, I convinced my nephew over the holiday that eating all his broccoli was like doing extra credit for Santa Claus, so it would cancel out the naughty action of eating one of the cookies he put out for Santa. Saying that an adult agreeing to an unread ToS is unenforceable because we don't hold children accountable for signed contracts is plain nonsense.

clairity 6y ago

time spent doesn't work because it's only loosely correlated to the actual behavior they're trying to track, which is to read the tos. reading is not even perfectly correlated with understanding the tos, which is what we're really after. this type of mistaken logic (loose correlations taken as tight ones) is everywhere. it's so common to look for secondary characteristics that can stand in for the desired one. and that's often how we get unintended consequences.

scotty79 6y ago

I often don't even read what's written on the button? Am I lefally accepting something even if I'm just cliking buttons randomly to make anything useful happen in your app?

mmcconnell1618 6y ago
If you randomly clicked the accept button before you realized that is was asking you to agree to TOS, can you get back to the terms? I just realized that 99% of the sites that have TOS do not send me a copy of what I just agreed to or have anyway to get back to that screen. In most other circumstances, both sides of the agreement receive a signed copy for their records.

salawat 6y ago

actually, this is a great detriment to every form of established contract law as we've trivialized what it means to establish a legal contract. Easy com, easy go. A contract requires consideration, and a meeting of the minds. If you can't even request a change to the terms for your agreement, it isn't a spiritually valid contract. It's the difference between actually being prepared to negotiate, and making an ultimatum. ToS's are often presented in the forms of ultimatum's with no alternatives. That I do not accept.

wittyreference 6y ago

Actually signing a contract doesn't begin and end at a signature. It requires a meeting of the minds, which the signature is meant to represent. A contract without a meeting of the minds - such as a contract presented in a context coercing the counterparty not to have an attorney parse it for them - is invalid, signature or no.