After all, companies frequently have "drive-by" EULAs that you "agree" to by simply not leaving the site, so if that's legally binding, why is the reverse not true?
I also don't personally want to read a terms of service, let alone hire a lawyer to tell me it's consequences for every HTTP request, before it gets shoved down my throat one-sidedly in the form "if you're using this site you agree everything our legal department wrote which gives us the right to trample your rights however we like using all the legal loopholes out there, and sometimes even beyond, and hey we'll also be forcing US laws on you even if you're in a totally independent country while ignoring your hard-earned rights protected by your country's laws", but it's somehow the standard practice.
That kind attitude is a serious double standard going on for years, favoring corporations and companies over the rights of individuals. So forgive me when I find it very hard to sympathize with anything you said.
It's like claiming, "well, if my local factory can dump toxic waste in the river, why can't I?" You're right, it's a double standard that you're held to more accountability than your local factory. But the correct way to fix that double standard is to go after the factory, not to say, "well heck with it, everybody can dump now."
My ultimate goal is to keep the river clean, not to make things fair.
Yes, that can be one interpretation, but only with intended irony, not literally.
But suppose you're saying it literally; you wouldn't because you're living there. And also because regulations will never allow you to, because your local company has your politicians in their pockets and they effectively get a free pass in the form of bills thanks to ~~legitimized bribing~~ lobbying while you'll just be sent to prison. Which is a part of the irony I was trying to point out.
> My ultimate goal is to keep the river clean, not to make things fair.
It's very easy to say such things. Words are cheap. How exactly were you going to keep the river clean toward your ultimate goal, again? By offering your stashed billions on the moon as counter-lobby during next elections? Are you also going give us World Peace and unicorns while you're at it? Or assuming you also know how unrealistic you actually sound, would you just be content by opposing the dissent in favor of the status quo by pretending to take the moral high ground?
> It's very easy to say such things. How exactly were you going to keep the river toward your ultimate goal, again?
Again, I get that you're probably just trying to talk about how broken our current legal system is and how difficult it is to change that. I agree, and I'm probably preaching to the choir when I say this.
But if you mean it meant literally, I would say that a good starting point is trying not to one-up the factories with our own pollution. It is very hard to stop factories from dumping toxic waste into the river. It is harder to stop both factories and every one of my neighbors from dumping toxic waste into the river.
That's all that I'm getting at. TOS reform is already a very hard problem, and we should avoid making it harder than it already is.
I can imagine that it might feel good for someone to say, "if corporations don't want to play fair, then we'll make it so literally every action on the web will require a lawyer," in the same way that it might feel good to say, "if corporations don't care about the environment, we'll see how they feel once we've just burned all the trees."
But that would really be cutting off our own noses to spite our collective face.
That said, I don’t know much about how other countries’ legal systems treat such agreements, but from what I’ve heard, they tend to be equally or more restrictive of them, not less.
Before going to other countries: are you referring to a very recent local Florida state law (after Vitacost.com, Inc. v. James McCants, found with a quick search), or is there an even newer federal US law?
> That said, I don’t know much about how other countries’ legal systems treat such agreements, but from what I’ve heard, they tend to be equally or more restrictive of them, not less.
Given no such law existed even in Florida until last year, I'd be more cautious before extrapolating this internationally.
https://en.wikipedia.org/wiki/Browse_wrap
The Vitacost case you mentioned is not listed there but, looking at the decision, seems to be a straightforward application of two of the precedents (Nguyen v. Barnes & Noble and Hubbert v. Dell); it doesn't disagree with them.
I did forget one complication when writing my previous post, which is, at least according to the aforementioned Hubbert v. Dell, there are some circumstances where a browse-wrap agreement may be enforceable:
> In 2005, the Illinois Appellate Court ruled in favor of a browse-wrap agreement in Hubbert v. Dell Corp. In this case consumers of Dell products were repeatedly shown the words "All sales are subject to Dell's Term[s] and Conditions of Sale", including a conspicuous hyperlink, over a series of pages. The court found that this repeated exposure and visual effect would put a reasonable person on notice of the "terms and conditions".
But that's fairly different from a typical browse-wrap agreement.
I wonder how many sites I've visited where blocking 3rd-party scripts broke their Javascript and prevented them from ever giving me a TOS popup. I have no way of knowing for certain, but given that I regularly find websites where the box does pop up but doesn't work properly, it's probably not zero.
IANAL, but if I was a site operator and I really needed absolutely every visitor to my website to be legally bound by a TOS, a Javascript-powered clickwrap agreement would not personally help me sleep any better at night.
If I understand correctly, the last provided contract is what holds for service transactions. So, unless tracking pixels also serve a tos back, my terms of service provided in the header determine the legal status of the transaction.
Websites, on the other hand, because the html includes the TOS, and the final contract.