The more TOS I read through, the more it seems we need a "common law" solution. (I use the term "common law" loosely here) Something like a couple of pre-defined categories for software services (e.g. info provider, social network, real-world interface) with pre-set rules (e.g. the client cannot attempt to break the social network; the owner of the social network cannot re-sell data to a third party).

We have something like this for brick'n'mortar retail already -- each store can't just make up their own rules but rather has to operate within a societal framework.

The system we have right now leads to every corporation being incentivized to claim as much legal ground as possible in the TOS, leading to a de-facto corpo-state. It also undermines the rule of law in a cultural sense since many things in the TOS may be deemed unenforceable when actually challenged in court. The users will always be is a several disadvantageous bargaining position.