blogpost: 7 Surprising Things Lurking In Online ‘Terms of Service’ Agreements

17 views
Skip to first unread message

Michiel de Jong

unread,
Oct 3, 2012, 6:22:36 AM10/3/12
to to...@googlegroups.com
Found via Hugo's post on the opennotice list -

At least some of the points mentioned here:
http://moneyland.time.com/2012/08/28/7-surprising-things-lurking-in-online-terms-of-service-agreements/#ixzz28EDtiWA9
are not in our data points yet. Also it's a good opinion to use when
assigning weights.

And on a side note - as suggested by
http://www.switchfast.com/switchfast-blog/2012/8/30/how-to-assess-a-terms-of-service-agreement-without-really-trying.aspx
once we have worked through our backlog, we could probably
double-check all sites for these 7 points (as well as for each topic
on http://tos-dr.info/topics.html ) before we assign a class to them,
so we don't leave any questions unanswered. Just to make sure
everything is there, all our reviews our thorough.


Cheers,
Michiel

Hannah Poteat

unread,
Oct 4, 2012, 11:29:52 AM10/4/12
to to...@googlegroups.com
Hi, Michiel. I'd like to highlight three things about the blog post -- one point I think is in error, one I think will not be useful for ToS:DR unless we approach it in a more fine-tuned way, and one I think will be very useful indeed.

The first point, "Your Photos May Be For Sale," suggests, erroneously, that if a Terms of Service agreement reserves the right to publicly display copyrighted material (such as photos), that's a bad thing. This could not be more wrong: any site that's hosting copyrighted material must reserve the right to publicly display that material. Otherwise, it won't have the right to, you know, display that material publicly. Like, on the internet. The right to public display doesn't affect whether or not a website can sell its users' content; the ability to sublicense or transfer the rights granted by the ToS does. If you're concerned about an online service selling your content, don't look for the right to publicly display, look for the right to sublicense and transfer. 

*Caveat: nearly every ToS grants the rights to sublicense and transfer, because most online services / websites would like the ability to be bought by a larger company. If an online service is bought, the value is in their content, and they need the ability to legally transfer that content to their new owner. 

The fifth point, "You Could Be Banned from Filing Class Action Lawsuits," is not incorrect, but is, according to the Supreme Court, the way things are supposed to work (I don't agree with them, but the Supreme Court doesn't often ask me). We have, in the US, a Federal Arbitration Act that is designed to take some of the burden off the court system and lower costs by encouraging arbitration. Some states, most notably California, had previously held that Terms of Service clauses requiring arbitration (thus shutting users out of filing lawsuits) were generally unfair, but the Supreme Court overturned that last year. In short: the vast majority of Terms of Service will have clauses requiring arbitration, after the Supreme Court's ruling. I suggest, for the purposes of ToS: DR, you don't have a blanket "Arbitration yes/no" checkbox, because that won't help anyone. Instead, look at the terms of the arbitration clause. Is the arbitration clause overly burdensome on the user? Does it require the user to travel to a certain state to arbitrate, for instance?

Finally, the seventh point, "Whether the Terms Are Fair or Not, They Could Change At Any Moment," is one I think ToS: DR should really highlight. There have been a number of court cases (Roling v. E*Trade Securities LLC; Harris v. Blockbuster, IncDouglas v. U.S. Dist. Court ex rel Talk America) holding that companies that claim the ability to change their Terms of Service without getting a new assent from their users are creating an unenforceable illusory contract, a situation that could invalidate the entire changed terms. Companies that would like to change their Terms of Service must take steps to notify their users about material changes and allow their users to assent to the new agreement. This is something that would be very good to highlight, because if a company is not informing its users about material changes to its terms, both the users and the company itself are being harmed.

Hannah

Hugo Roy

unread,
Oct 4, 2012, 11:42:58 AM10/4/12
to to...@googlegroups.com
Le jeudi 04 octobre 2012 à 08:29 -0700, Hannah Poteat a écrit :
> Hi, Michiel. I'd like to highlight three things about the blog post -- one
> point I think is in error, one I think will not be useful for ToS:DR unless
> we approach it in a more fine-tuned way, and one I think will be very
> useful indeed.
>
> The first point, "Your Photos May Be For Sale," suggests, erroneously, that
> if a Terms of Service agreement reserves the right to *publicly display *copyrighted
> material (such as photos), that's a bad thing. This could not be more
> wrong: any site that's hosting copyrighted material *must* reserve the
> right to publicly display that material. Otherwise, it won't have the right
> to, you know, display that material publicly. Like, on the internet. The
> right to public display doesn't affect whether or not a website can sell
> its users' content; the ability to sublicense or transfer the rights
> granted by the ToS does. If you're concerned about an online service
> selling your content, don't look for the right to publicly display, look
> for the right to sublicense and transfer.

Yes, exactly.

> *Caveat: nearly every ToS grants the rights to sublicense and transfer,
> because most online services / websites would like the ability to be bought
> by a larger company. If an online service is bought, the value is in their
> content, and they need the ability to legally transfer that content to
> their new owner.

Well, I don't think it makes it less bad. Look at Instagram's copyright
license. It doesn't include sublicense and right to transfer. It didn't
prevent them from selling it 1 billion to facebook.

> The fifth point, "You Could Be Banned from Filing Class Action Lawsuits,"
> is not incorrect, but is, according to the Supreme Court, the way things
> are supposed to work (I don't agree with them, but the Supreme Court
> doesn't often ask me). We have, in the US, a Federal Arbitration Act that
> is designed to take some of the burden off the court system and lower costs
> by encouraging arbitration. Some states, most notably California, had
> previously held that Terms of Service clauses requiring arbitration (thus
> shutting users out of filing lawsuits) were generally unfair, but the
> Supreme Court overturned that last year. In short: the vast majority of
> Terms of Service will have clauses requiring arbitration, after the Supreme
> Court's ruling. I suggest, for the purposes of ToS: DR, you don't have a
> blanket "Arbitration yes/no" checkbox, because that won't help anyone.
> Instead, look at the *terms* of the arbitration clause. Is the arbitration
> clause overly burdensome on the user? Does it require the user to travel to
> a certain state to arbitrate, for instance?

I think both should be taken into account.

It's not because the supreme court decided these clauses are valid that
it's making their clause fair for the user. In most cases, I'd say it's
not fair. We don't have class-actions in France, so I know how it feels
to see big corporations getting away with things because the potential
plaintiffs are simply all too small. Imagine if tomorrow, Facebook or
Google ask their users to waive their right to file a class-action. How
would people react, considering that it's thanks to class-action
lawsuits that their privacy issues have been taken to court?

> Finally, the seventh point, "Whether the Terms Are Fair or Not, They Could
> Change At Any Moment," is one I think ToS: DR should really highlight.
> There have been a number of court cases (*Roling v. E*Trade Securities LLC*;
> *Harris v. Blockbuster, Inc*; *Douglas v. U.S. Dist. Court ex rel Talk
> America*) holding that companies that claim the ability to change their
> Terms of Service without getting a new assent from their users are creating
> an unenforceable illusory contract, a situation that could invalidate the
> entire changed terms. Companies that would like to change their Terms of
> Service must take steps to notify their users about material changes and
> allow their users to assent to the new agreement. This is something that
> would be very good to highlight, because if a company is not informing its
> users about material changes to its terms, both the users *and the company
> itself* are being harmed.

Totally.

Best,
Hugo

--
Hugo Roy
French Coordinator, FSFE chat: hu...@jabber.fsfe.org
www.fsfe.org/about/roy mobile: +336 08 74 13 41
mobile DE: +49 151 143 56 563

Reply all
Reply to author
Forward
0 new messages