3 ms·

Lawyers are playing Calvinball again. I have no idea why the law finds this kind of argumentation compelling. "I clearly intentionally deceived, but I stashed s

Lawyers are playing Calvinball again. I have no idea why the law finds this kind of argumentation compelling. "I clearly intentionally deceived, but I stashed some bullshit legalese into a document no one will read so my deception is completely OK."

torginus 6mo ago
My two cents is that if it didn't, 'I didn't know that was illegal/breach of contract' would be a valid legal defense. Although intentionally saying things that contradict whats in the contract might be legally objectionable.
- marcosdumay 6mo ago
  When the contract is purposefully obtuse and hard to understand, that should be a valid legal defense. When it's huge, falls upon people that can't justify a lawyer, and keeps changing all the time, one shouldn't even need to claim it. It should be automatically invalid.
  - voxic11 6mo ago
    > Copilot is for entertainment purposes only. It can make mistakes, and it may not work as intended. Don’t rely on Copilot for important advice. Use Copilot at your own risk. Seems pretty clear to me, do you really think people need a lawyer to understand that?
    - lazide 6mo ago
      If it’s in a locked cabinet in the downstairs bathroom with the ‘out of order’ sign on the door, guarded by a leopard?
      - recursive 6mo ago
        A disused lavatory?
        lazide 6mo ago
        We can neither confirm nor deny on advice of counsel.
    - Sharlin 6mo ago
      Sure, if you make that clear in all of your marketing rather than lying your ass off and then trying the "lol we didn’t really mean it" defense.
    - jon-wood 6mo ago
      If Copilot is for entertainment purposes only then why is https://office.com https://office.com all about how you can use Copilot, and closes with the small print "Copilot Chat in the Microsoft 365 Copilot app is available for Microsoft 365 Enterprise, Academic, SMB, Personal and Family subscribers with a work, education, or personal account." Why would they include a product for entertainment purposes only in the product they sell to large companies for doing work?
      - WesolyKubeczek 6mo ago
        Microsoft is pivoting to become an entertainment company, the Copilot being the final form of what Microsoft Bob has always wanted to become.
    - deleted 6mo ago
      [deleted]
    - andy81 6mo ago
      The only thing "clear" about that License agreement is it contradicts all their other marketing about Copilot. So either that document is fraudulent or everyone else at Microsoft is committing fraud daily. Examples from the first search result: https://support.microsoft.com/en-us/topic/microsoft-365-copilot-video-tutorials-25a1b328-79be-4e8a-af96-1f894e52bcf6 https://support.microsoft.com/en-us/topic/microsoft-365-copi... Support page with ~25 tutorials provided by Microsoft about how to "Create a document with Copilot" or "Create a branded presentation from a file" or "Start a Loop workspace from a Teams meeting". Do you actually believe that creating branded presentations (from Microsoft's own examples) is something people do for "entertainment purposes"?
      - NetMageSCW 6mo ago
        Did Microsoft force you to follow the tutorials and use CoPilot for business?
        adgjlsfhk1 6mo ago
        By advertising Copilot as capable of doing something they are guaranteeing the product is capable of it.
        deleted 6mo ago
        [deleted]
    - marcosdumay 6mo ago
      There are 1698 words before that phrase. Granted that this one document has a surprisingly clear language, but no, it's still not reasonable. Also, it was changed less than 6 months ago.
  - SoftTalker 6mo ago
    Contract language is obtuse and hard to understand precisely because of previous challenges over meaning. There are stock phrasings and clauses in contracts that have established (by precident) legal meanings. That's why contracts seem to be walls of boilerplate. If you just wrote them in "plain language" there would be far too much ambiguity and arguing over what was really meant or implied or agreed to.
    - hananova 6mo ago
      A company acting in good faith could provide both a binding version, and a version in plain language.
- crote 6mo ago
  On the other hand: imagine someone putting "by agreeing to this, you owe us $1,000,000,000 - unless you opt out in writing within 90 days" halfway down the 100-page EULA of some cookie-cutter smartphone app. It is not at all uncommon for such absurd contract terms to be unenforceable - especially in B2C contracts, although it might even be tricky for B2B clickthrough ones. The idea being that most contracts are fairly standard, so a lot of people will just skim through them. Putting a landmine in them is obviously in bad faith, so making it enforceable would basically make it impossible to do any kind of business at all.
  - observationist 6mo ago
    On the other other hand, they can put whatever they want in there, and because they've forced everything into arbitration with "third party" mediation and carved out their own little niche of the justice system, they'll never actually go to court, they'll just settle and evolve their ToS and contracts and word games accordingly.
    - graemep 6mo ago
      Not going to work in a lot of countries, again, especially with regard to consumer contracts.
  - disillusioned 6mo ago
    FullStory just tried to pull this with their renewal. We had a mult-year contract that started with a two-page order form, on which the words "renewal" or "cancellation" never once appear. During negotiations, it was never discussed that the plan would renew, or that there was a cancellation window. Instead, buried at the very bottom of the form (which they send via CongaSign, and wasn't clickable or obvious), was a line about their subscription agreement being linked to their terms and conditions page. On THAT page, they mention the plan will auto renew and must be cancelled with 60 days notice. We cancelled at T-45 or so days before renewal, having determined it wasn't a fit for our client anymore, and they insisted "well, actually, you've renewed anyway!" which, no, we haven't. Absolutely absurd to try to "clickwrap" buried renewal terms in a 20+ page T&C/privacy document rather than as a material point of fact on the actual order form being executed. Feels like the height of absurdity to try to bully your client into forcing them to use your services against their will when they still gave ample notice that they were cancelling and when there was no material loss to the business, but it's always felt like their revenue team has been unhinged in general: exploding offers, insane terms, super high-pressure sales... part of the reason we left them in the first place.
- ryandrake 6mo ago
  I wish we lived in more of a "spirit of the law" world than a "letter of the law" world, where everything needs to be spelled out, but we don't. A small minority of people enjoy Rules Lawyering their way through life, insisting on trying to "gotcha" counterparties who are acting in good faith, so as a consequence, we all have to be Rules Lawyers and everything needs to be spelled out.
  - d3ckard 6mo ago
    No, you don’t. It only sounds nice. In practice this enables all kinds of spontaneous prosecution with any possible motive.
  - WesolyKubeczek 6mo ago
    Theoretically, courts and judges exist precisely to balance the word and the spirit, and find and judge the actual intent. In practice, I'm in awe that good judgments still happen, despite everything.
  - xboxnolifes 6mo ago
    We live in neither. Many things spelled out are unenforceable. Maybe things not spelled out are implied. We live in a world where advertising boneless chicken does not actually mean the chicken does not contain bones.
  - NetMageSCW 6mo ago
    I think a “spirit of the law” world would result in judges that already abuse their absurd powers way too much have free rein over any abuse they want to do, and there would be no system for ensuring everyone is treated equally or fairly.
    - vkou 6mo ago
      The current alternative is the corpos abuse their absurd powers, and there's no system for ensuring everyone is treated equally or fairly.
- deleted 6mo ago
  [deleted]
- jerf 6mo ago
  Nominally, Common Law, the system of law that to a first approximation is used in countries descended from the UK, has a lot of protections of that sort. You can't put "unconscionable" terms in a contract, e.g., it is simply illegal to sell yourself into total slavery in common-law derived systems. All signatories to a contract must consent, must not be under duress, the contract can not be one-sided (this doesn't mean "the contract is 'fair' from a 3rd-party point of view" but "the contract can't result in only one side giving things but the other doesn't"), and a variety of other common sense rules. In practice, availing yourself of any of these protections is a massively uphill battle. Judges tend to presume that these common law matters are already embedded into the de facto legal system because the people writing the laws already operated under those assumptions while framing the law. Personally, I disagree and think a lot of these protections have eroded away into either nothing, or so little that it might as well be nothing, but you have a 0% chance of drawing me as a judge in your case so that won't help you much if you try.
- promagnon 6mo ago
  [dead]
ThrowawayR2 6mo ago
"Our software developers clearly were negligent, but we stashed some bullshit legalese saying 'No warranty express or implied' into a document no one will read so our bug-infested software is completely OK." People in glass houses shouldn't throw stones.
deleted 6mo ago
[deleted]
BrandoElFollito 6mo ago
Some 20 years ago there was a story about a guy who was opening a bank account. The bank sent the contract, the guy ameneded it with things like "you will give le unlimited credit that I do not need to repay" (if my memory serves me right). He signed, sent both copies, got his bank signed copy back Went yo the bank, the bank sued him, he won (the judge told the bank that when you play dirty games you sometimes loose) and they ultimately settled.
- lucianbr 6mo ago
  https://www.rt.com/business/man-outsmarts-banks-wins-court-221/ https://www.rt.com/business/man-outsmarts-banks-wins-court-2... I can never find an article that mentions the final outcome.
  - Mathnerd314 6mo ago
    It is on Wikipedia under T-Bank, this seems the best source that announces the resolution: https://web.archive.org/web/20220905212700/https://www.tinkoff.ru/about/news/14082013-conflict-resolved/ https://web.archive.org/web/20220905212700/https://www.tinko...
    - tmtvl 6mo ago
      From the Wikipedia article: > The legal action was later withdrawn by both the parties after an undisclosed settlement was reached.
      - Mathnerd314 6mo ago
        Well, it's a little more than that, like they agreed to issue him a debit card
- gamblor956 6mo ago
  ...In Russia. That wouldn't work in the U.S. Changes to material terms in a contract generally informed consent (meaning, that the modifications are actually disclosed to the counterparty before they sign) or specific consent (such as a initializing the sections of the contract where the modifications occur). This is a basic part of the UCC, which all states have adopted in some form. There are a lot of people on the internet claiming that you can get away with surreptitious material changes to a contract before it is signed. None of them are lawyers.
Veserv 6mo ago
I have frequently proposed a objective legal standard for false advertising that handles that: "Technically, your honor". If somebody says that in court, they lose. The words they used, as commonly understood by the target audience, were intentionally crafted to be interpreted differently than what they were going to say they meant in court. They spent time, effort, and money, ran focus groups, and carefully selected and curated their words to be incorrectly interpreted by the target audience to reach knowingly false conclusions. The correct standard should be that they spent time, effort, and money, ran focus groups, and carefully selected and curated their words to be correctly interpreted by the target audience to reach true conclusions. Their statements should only be accidentally incorrect in proportion to the time and effort spent crafting and distributing them. "Technically, your honor", should be treated as the ethical abomination it is.
- protocolture 6mo ago
  I know there's some tort caselaw in Australia towards both parties actual understanding of the contract vs written word. We went over a few of these cases in high school commerce. Its been further enshrined by the ACCC, which tends to take the view that the verbal understanding provided at the point of sale can often supercede terms and conditions.
kulahan 6mo ago
I don't think its really ever been challenged in court, so it's more of a "let's hedge our bets" thing? I could be wrong -I'm pretty sure it's happened once before.

torginus 6mo ago

My two cents is that if it didn't, 'I didn't know that was illegal/breach of contract' would be a valid legal defense. Although intentionally saying things that contradict whats in the contract might be legally objectionable.

marcosdumay 6mo ago
When the contract is purposefully obtuse and hard to understand, that should be a valid legal defense. When it's huge, falls upon people that can't justify a lawyer, and keeps changing all the time, one shouldn't even need to claim it. It should be automatically invalid.
- voxic11 6mo ago
  > Copilot is for entertainment purposes only. It can make mistakes, and it may not work as intended. Don’t rely on Copilot for important advice. Use Copilot at your own risk. Seems pretty clear to me, do you really think people need a lawyer to understand that?
  - lazide 6mo ago
    If it’s in a locked cabinet in the downstairs bathroom with the ‘out of order’ sign on the door, guarded by a leopard?
    - recursive 6mo ago
      A disused lavatory?
      - lazide 6mo ago
        We can neither confirm nor deny on advice of counsel.
  - Sharlin 6mo ago
    Sure, if you make that clear in all of your marketing rather than lying your ass off and then trying the "lol we didn’t really mean it" defense.
  - jon-wood 6mo ago
    If Copilot is for entertainment purposes only then why is https://office.com https://office.com all about how you can use Copilot, and closes with the small print "Copilot Chat in the Microsoft 365 Copilot app is available for Microsoft 365 Enterprise, Academic, SMB, Personal and Family subscribers with a work, education, or personal account." Why would they include a product for entertainment purposes only in the product they sell to large companies for doing work?
    - WesolyKubeczek 6mo ago
      Microsoft is pivoting to become an entertainment company, the Copilot being the final form of what Microsoft Bob has always wanted to become.
  - deleted 6mo ago
    [deleted]
  - andy81 6mo ago
    The only thing "clear" about that License agreement is it contradicts all their other marketing about Copilot. So either that document is fraudulent or everyone else at Microsoft is committing fraud daily. Examples from the first search result: https://support.microsoft.com/en-us/topic/microsoft-365-copilot-video-tutorials-25a1b328-79be-4e8a-af96-1f894e52bcf6 https://support.microsoft.com/en-us/topic/microsoft-365-copi... Support page with ~25 tutorials provided by Microsoft about how to "Create a document with Copilot" or "Create a branded presentation from a file" or "Start a Loop workspace from a Teams meeting". Do you actually believe that creating branded presentations (from Microsoft's own examples) is something people do for "entertainment purposes"?
    - NetMageSCW 6mo ago
      Did Microsoft force you to follow the tutorials and use CoPilot for business?
      - adgjlsfhk1 6mo ago
        By advertising Copilot as capable of doing something they are guaranteeing the product is capable of it.
        deleted 6mo ago
        [deleted]
  - marcosdumay 6mo ago
    There are 1698 words before that phrase. Granted that this one document has a surprisingly clear language, but no, it's still not reasonable. Also, it was changed less than 6 months ago.
- SoftTalker 6mo ago
  Contract language is obtuse and hard to understand precisely because of previous challenges over meaning. There are stock phrasings and clauses in contracts that have established (by precident) legal meanings. That's why contracts seem to be walls of boilerplate. If you just wrote them in "plain language" there would be far too much ambiguity and arguing over what was really meant or implied or agreed to.
  - hananova 6mo ago
    A company acting in good faith could provide both a binding version, and a version in plain language.
crote 6mo ago
On the other hand: imagine someone putting "by agreeing to this, you owe us $1,000,000,000 - unless you opt out in writing within 90 days" halfway down the 100-page EULA of some cookie-cutter smartphone app. It is not at all uncommon for such absurd contract terms to be unenforceable - especially in B2C contracts, although it might even be tricky for B2B clickthrough ones. The idea being that most contracts are fairly standard, so a lot of people will just skim through them. Putting a landmine in them is obviously in bad faith, so making it enforceable would basically make it impossible to do any kind of business at all.
- observationist 6mo ago
  On the other other hand, they can put whatever they want in there, and because they've forced everything into arbitration with "third party" mediation and carved out their own little niche of the justice system, they'll never actually go to court, they'll just settle and evolve their ToS and contracts and word games accordingly.
  - graemep 6mo ago
    Not going to work in a lot of countries, again, especially with regard to consumer contracts.
- disillusioned 6mo ago
  FullStory just tried to pull this with their renewal. We had a mult-year contract that started with a two-page order form, on which the words "renewal" or "cancellation" never once appear. During negotiations, it was never discussed that the plan would renew, or that there was a cancellation window. Instead, buried at the very bottom of the form (which they send via CongaSign, and wasn't clickable or obvious), was a line about their subscription agreement being linked to their terms and conditions page. On THAT page, they mention the plan will auto renew and must be cancelled with 60 days notice. We cancelled at T-45 or so days before renewal, having determined it wasn't a fit for our client anymore, and they insisted "well, actually, you've renewed anyway!" which, no, we haven't. Absolutely absurd to try to "clickwrap" buried renewal terms in a 20+ page T&C/privacy document rather than as a material point of fact on the actual order form being executed. Feels like the height of absurdity to try to bully your client into forcing them to use your services against their will when they still gave ample notice that they were cancelling and when there was no material loss to the business, but it's always felt like their revenue team has been unhinged in general: exploding offers, insane terms, super high-pressure sales... part of the reason we left them in the first place.
ryandrake 6mo ago
I wish we lived in more of a "spirit of the law" world than a "letter of the law" world, where everything needs to be spelled out, but we don't. A small minority of people enjoy Rules Lawyering their way through life, insisting on trying to "gotcha" counterparties who are acting in good faith, so as a consequence, we all have to be Rules Lawyers and everything needs to be spelled out.
- d3ckard 6mo ago
  No, you don’t. It only sounds nice. In practice this enables all kinds of spontaneous prosecution with any possible motive.
- WesolyKubeczek 6mo ago
  Theoretically, courts and judges exist precisely to balance the word and the spirit, and find and judge the actual intent. In practice, I'm in awe that good judgments still happen, despite everything.
- xboxnolifes 6mo ago
  We live in neither. Many things spelled out are unenforceable. Maybe things not spelled out are implied. We live in a world where advertising boneless chicken does not actually mean the chicken does not contain bones.
- NetMageSCW 6mo ago
  I think a “spirit of the law” world would result in judges that already abuse their absurd powers way too much have free rein over any abuse they want to do, and there would be no system for ensuring everyone is treated equally or fairly.
  - vkou 6mo ago
    The current alternative is the corpos abuse their absurd powers, and there's no system for ensuring everyone is treated equally or fairly.
deleted 6mo ago
[deleted]
jerf 6mo ago
Nominally, Common Law, the system of law that to a first approximation is used in countries descended from the UK, has a lot of protections of that sort. You can't put "unconscionable" terms in a contract, e.g., it is simply illegal to sell yourself into total slavery in common-law derived systems. All signatories to a contract must consent, must not be under duress, the contract can not be one-sided (this doesn't mean "the contract is 'fair' from a 3rd-party point of view" but "the contract can't result in only one side giving things but the other doesn't"), and a variety of other common sense rules. In practice, availing yourself of any of these protections is a massively uphill battle. Judges tend to presume that these common law matters are already embedded into the de facto legal system because the people writing the laws already operated under those assumptions while framing the law. Personally, I disagree and think a lot of these protections have eroded away into either nothing, or so little that it might as well be nothing, but you have a 0% chance of drawing me as a judge in your case so that won't help you much if you try.
promagnon 6mo ago
[dead]

ThrowawayR2 6mo ago

"Our software developers clearly were negligent, but we stashed some bullshit legalese saying 'No warranty express or implied' into a document no one will read so our bug-infested software is completely OK." People in glass houses shouldn't throw stones.

deleted 6mo ago

[deleted]

BrandoElFollito 6mo ago

Some 20 years ago there was a story about a guy who was opening a bank account. The bank sent the contract, the guy ameneded it with things like "you will give le unlimited credit that I do not need to repay" (if my memory serves me right). He signed, sent both copies, got his bank signed copy back Went yo the bank, the bank sued him, he won (the judge told the bank that when you play dirty games you sometimes loose) and they ultimately settled.

lucianbr 6mo ago
https://www.rt.com/business/man-outsmarts-banks-wins-court-221/ https://www.rt.com/business/man-outsmarts-banks-wins-court-2... I can never find an article that mentions the final outcome.
- Mathnerd314 6mo ago
  It is on Wikipedia under T-Bank, this seems the best source that announces the resolution: https://web.archive.org/web/20220905212700/https://www.tinkoff.ru/about/news/14082013-conflict-resolved/ https://web.archive.org/web/20220905212700/https://www.tinko...
  - tmtvl 6mo ago
    From the Wikipedia article: > The legal action was later withdrawn by both the parties after an undisclosed settlement was reached.
    - Mathnerd314 6mo ago
      Well, it's a little more than that, like they agreed to issue him a debit card
gamblor956 6mo ago
...In Russia. That wouldn't work in the U.S. Changes to material terms in a contract generally informed consent (meaning, that the modifications are actually disclosed to the counterparty before they sign) or specific consent (such as a initializing the sections of the contract where the modifications occur). This is a basic part of the UCC, which all states have adopted in some form. There are a lot of people on the internet claiming that you can get away with surreptitious material changes to a contract before it is signed. None of them are lawyers.

Veserv 6mo ago

I have frequently proposed a objective legal standard for false advertising that handles that: "Technically, your honor". If somebody says that in court, they lose. The words they used, as commonly understood by the target audience, were intentionally crafted to be interpreted differently than what they were going to say they meant in court. They spent time, effort, and money, ran focus groups, and carefully selected and curated their words to be incorrectly interpreted by the target audience to reach knowingly false conclusions. The correct standard should be that they spent time, effort, and money, ran focus groups, and carefully selected and curated their words to be correctly interpreted by the target audience to reach true conclusions. Their statements should only be accidentally incorrect in proportion to the time and effort spent crafting and distributing them. "Technically, your honor", should be treated as the ethical abomination it is.

protocolture 6mo ago
I know there's some tort caselaw in Australia towards both parties actual understanding of the contract vs written word. We went over a few of these cases in high school commerce. Its been further enshrined by the ACCC, which tends to take the view that the verbal understanding provided at the point of sale can often supercede terms and conditions.

kulahan 6mo ago

I don't think its really ever been challenged in court, so it's more of a "let's hedge our bets" thing? I could be wrong -I'm pretty sure it's happened once before.