Hacker News Reader

Comment by everdrive | Hacker News Reader

Every single ToS is written to benefit the company, and when necessary, harm the consumer. The answer is to enter into as few service contracts as possible. Use open source software. Control when your software updates. Really, never use the cloud version of anything whatsoever except where unavoidable. (eg: email and such)

They feel like the legal equivalent of Calvin Ball. So long as you just stash it in a ToS, you can apply any stupid rule your lawyers can imagine.

View on HN

> The answer is to enter into as few service contracts as possible

Even the idea that TOS qualifies as accepting a contract makes a farce of the entire concept of contract law.

Right? A “contract” that only one party needs to abide by is not a contract… it’s an abusive relationship.

If the company violates their ToS, you can take them to court (or arbitration).

It is bi-directionally enforced contract, just not a symmetrically beneficial one.

The benefit is the product. If the TOS is onerous, you can not use the product.

What happens when Ford updates the ToS on my vehicle (via an OTA update) and I cannot see the backup camera until I "accept"?

(Insert about 1000 other examples of very awkward ToS updates)

You refuse the update and continue using the car with the features you paid for. The ToS agreement comes before the update, not after.

Often I see a popup to accept TOS after the update, which was run without me agreeing to anything.

At which time the company has unilaterally denied my access to something I already paid for without seeking my affirmative consent.

In theory I could stop whatever I'm doing, go email the company a brief to the point letter indicating they've broken their ToS and are unacceptably impairing my ability to use my property under the contract that I did agree to, and giving them an opportunity to amend their problem and give me a rollback path.

Realistically the outcome of this is a brushoff and needing to file a consumer protection complaint or get a lawyer.

If the feature is something like "my car" I can't afford that opportunity cost and am coerced into accepting their contract by the way they presented the amended terms.

I figure ToS for physical devices should be blanket outlawed. They're fraught enough for purely online services. Physical devices keep all of that baggage then add additional questions about whether or not I own physical objects that I purchased.

Good luck with that, buddy. Let's see what kind of shithole society you build with this sort of worldview

So just endless account churn?

Ok that's no way to build a functional society, though. Humans are certainly not the entities in this conflict with the time or resources to go to court.

But generally the ToS has few, if any, requirements for the company. Usually the ToS is just a list of demands they make of the user in exchange for the service. But the company usually reserves the right to terminate service for any reason, as well as change the serice in any way they want, and change the terms of the "contract" at any time.

>If the company violates their ToS, you can take them to court (or arbitration).

This is my favorite...how exactly can I monitor compliance? No evidence of non-compliance - get tossed out of court. No court order for discovery - no ability to monitor/gather evidence compliance.

The idea that this is even a potential for mutuallity on a TOS is just farcical.

> Right? A “contract” that only one party needs to abide by is not a contract… it’s an abusive relationship.

I think you're absolutely right morally, but I think you've made a pretty important technical error: they're not abusive because "only one party needs to abide...by the contract", they're abusive because only one party can unilaterally change the deal. The companies that make these "contracts" can actually follow them, but since they can change them at a whim, it only really binds the other party.

There are plenty of other abusive aspects besides the fact that they can be changed unilaterally.

What I really don't understand is how it's supposed to be a fundamental part of contract law that there's a "meeting of the minds" where both parties agree to the same thing, and there are these click-through agreements that nobody reads, and everybody knows that nobody reads them, but they're still enforceable. I get why there needs to be a general presumption that you've actually read a contract that you've signed, otherwise you'd be flooded with people saying "actually I didn't read that" to get out of contracts they don't like anymore. But that presumption doesn't make any sense when one party doesn't read the contract, the other party knows nobody reads it, and everybody knows nobody reads it, but we all just sort of pretend.

I particularly love the pretend play of software forcing you to scroll the dozens of pages of contract text all the way to the bottom before the Accept button is enabled. Because obviously the reason I didn't read through the entirety of these eulas before is because I wasn't sure of how scrolling works.

The only way they should be enforceable is if they use that scrolling trick, then quiz you on all the terms (with at least multiple choice), every time the TOS is updated.

Despite sounding absurd I think that would actually work really well. It would make it functionally impossible to include arcane BS without driving off customers while also filtering out people too stupid to be trusted with any sort of online account.

I'm reminded of Mitch Hedberg's bit about getting a receipt when buying a donut. "I don't need a receipt for the donut. I'll just give you the money, and you give me the doughnut. End of transaction!"

Why do we need massive TOS for stuff? I'll just give you the money, and you give me the service. End of transaction!

Presumably because an ongoing service isn't a clean exchange of physical goods. It's more analogous to a gym membership which definitely does come with a contract.

By eating this donut you agree that we are not responsible for any health problems that might result, either directly or indirectly.

This is true and for this reason sometimes TOS are not very effective in court.

Wonder how a court would treat it if users just reply to the email updating the terms of service on our behalf and claiming that they have accepted the terms by not doing anything. (Eg add stringent PII protection, no tracking requirements…)

My guess is that you would probably get kicked off the service if anyone reads your TOS, so make sure to add onerous cancellation charges due to the user in your updated TOS.

In the US at least, the courts would probably side with the big corporation, since doing so seems to be the legal precedent.

I could imagine an AI sidekick that does all this work for you, and always has the last word because it'll never give up.

A place like Meta or Microsoft would tell you to pound sand, but an aligned army of collective-bargaining agents might succeed in removing a specific term from a smaller service.

You think that's bad? Imagine being unironically held accountable to the unenumerated terms of a "social contract" that you never even signed or had a right to refuse in the first place.

The difference is that a social contract is a concept and not literal contract.

The actual reality behind "the social contract" is simply that people have the capability to act in ways that can and do affect other people. Because of this, most people find that it's beneficial to moderate our actions in relation to other people based on their preferences.

I'm referring to very real obligations that we are all held to under the justification of "the social contract" such as taxation and being drafted into military service, not social niceties.

We are held to these obligations as seriously and as legally as we are held to real contracts, but unlike the bedrock that constitutes the basis for the legitimacy of all real contracts, these obligations are imposed upon us with no opportunity for consideration, consent, or rejection.

That's not the social contract. That's the government trying to trick you into thinking bombing Iran is part of the social contract.

That’s not the social contract, that’s the dual contracts of residency (protection from fellow residents) and citizenship (protection from foreign elements). You have the opportunity of consent; on your majority you can leave the country for another that’ll have you. There’s a cost to it, but it’s fairly minimal in most places.

That there costs and requirements imposed by a refusal to consent means that your consent or lack thereof is subject to coercion, rendering the arrangement non-consensual.

This argument would be valid if you could renounce US citizenship without first producing another citizenship. But it's not, and you can't. I never asked for a US citizenship, I don't want a US citizenship, and yet I'm bound by it and not free to revoke it.

This citizenship situation is more analogous to a slaveholder telling one of their slaves that they are technically free, because they are welcome to leave once they produce documented proof of ownership by another, different slaveholder. The slave is no sense actually free, despite the misleading, bad-faith assertions of the slaveholder and those who recognize the slaveholder's framework as inherently legitimate.

Imagine waking up at a car dealership that tells you that you MUST pay interest on a car whether you take possession of it or not, despite you never having signed any kind of contract with them, but they tell you that you are still free and nothing is wrong with the arrangement because they will let you off the hook for paying them as long as you can provide proof that you're bound to pay interest on another dealership's car instead. If you try to refuse paying the interest on the car you don't want and never agreed to buy, they will send a team of gunmen to your house in the middle of the night, throw a flashbang through your window, chain you up, and drag you to a cage they lock you in. They insist that the whole arrangement is perfectly fine because the people in the car dealership took a vote where they agreed to force you to be bound by those terms, and that's all the justification they feel they need.

Now imagine the same thing, but in addition to paying interest on the car you didn't want and never agreed to buy, you're also bound to help murder people at other car dealerships, too, at the discretion and whim of the car dealership you're currently being extorted by.

That doesn't sound completely insane to you?

FYI you can absolutely renounce citizenship without having another one handy. the us will simply extract extreme punishments on you for doing so—for most people it's simply not worth it.

This is factually incorrect in the United States. You cannot renounce your citizenship without producing evidence of another citizenship - that is a statutory requirement, alongside exit taxes, to renounce your US citizenship.

>The answer is to enter into as few service contracts as possible.

Any contract where the other party performs so little seeking of my agreement (none at all really) that no representative talks to me in person or even electronically in an individual capacity, where no one witnesses me put my mark on the paper or hears by verbal assent, is in fact no contract at all. Despite what the courts may say. Should they say otherwise, they're wholly illegitimate.

That any of you have let something else stand as the norm is bizarre and alarming. Contracts require explicit, sought agreement, by their very definition. Nothing can be implied. If their business model relies on implicit agreement because anything else would be too difficult, then they simply shouldn't be allowed to remain in business.

Isn't that a bit extreme? As a counterpoint, I find it useful to be able to pay for a train journey by tapping my card on an electronic reader - no representative of the company is there or otherwise witnesses me doing so - but I have entered into a contract whereby I am entitled to travel to a distant location. And I do want it to be a contract, because the transport company agrees to get me to my destination somehow even if the trains are cancelled. Perhaps the conditions of carriage may be somehow unsatisfactory to me, but the way in which I enter into the contract is almost entirely unrelated.

>but I have entered into a contract whereby I am entitled to travel to a distant location. I'm not sure why you drape this in the clothing of "legal contract". If the train fails to take you to your destination, they certainly aren't in breach. It seems really one-sided. Why do they need it to be a contract? Will you come and claw back the fare from them with them having no legal recourse?

In the UK, where I live, it's completely usual to treat this as a contractual obligation. If there's a problem which means the train can't take you there, the operating company will do everything reasonable to achieve the offered service, exactly because otherwise they'd be in breach.

Example: there are a series of scheduled trains from London (St Pancras) to Nottingham. One day maintenance works meant the line would partly close overnight and the last train would run very slow. Since tickets were already sold the company intended to get passengers to Nottingham by Taxi, reasoning that few would take this already slow train and so a coach hire or other arrangement weren't cost effective.

Unfortunately an unavoidable incident elsewhere meant instead of a half dozen sleepy passengers arriving at the blocked line and being allocated a few taxis, hundreds of us turned up on that last train. The employee paid to order taxis made a few calls and was told too bad, the company will just have to eat the cost of hundreds of taxi fares, call all the city's taxi firms.

Taxis for a 2+ hour drive? That's wild. In the US when this happens they just charter a bus or three.

Not the whole London to Nottingham, just the last maybe 20-30 minutes from where the line was blocked overnight for works. And they obviously do often charter buses, in fact my local train operator was a bus company as well so their buses got used for this type of event because it's just internal accounting. However in the example I gave above that operating company had chosen not to hire a larger vehicle because they anticipated low volume. Six taxis is probably cheaper than a coach. A hundred not so much.

They had bad luck, a different train hit a person (almost certainly a suicide, it is possible to get struck by accident but it's not common) and delayed a large amount of passengers like me who were going to London to get that Nottingham train, people delayed by that incident from their last-but-one train [which ran normally all the way to Nottingham] filled this slow, train that couldn't get all the way instead. A really smart organized team in St Pancras could have realised way too many people are boarding that last train and warned their colleagues, but realistically it was probably already too late to organise a better response even if somehow an incredibly joined-up organisation had reacted to the problem.

That's a statutory obligation. It works for the consumer because it's not the rail company that gets to choose the terms.

The terms of the contract are required by central government, but it is still a contract.

One of the things your government could and should do for you is stand up to this sort of bullying by those who have more money and power.

This is my feeling exactly - there's a lot wrong with predatory contracts, but the problem is with the predatory part, not the mere fact they're contracts!

There is well established case law on the contract that forms when you buy something from a store (say with cash). There is a contract, on implied terms . I think what we’re talking about here is entering into a contract (or not) on explicit terms dictated by one party where the other party has not explicitly considered them and barely given the opportunity to do so if at all. I don’t think anybody is denying the ability of contracts coming into existence on implied terms.

> Despite what the courts may say

When the rubber meets the road, what the courts say is all that matters.

The reason for that phrase is that no, Mother Nature's laws are all that matters, unlike our puny laws, hers are inherent properties of the universe, no need for enforcement because you literally can't break them. A court can insist that up is down, but it ain't.

Where, pray tell, do physical laws of nature come into relevance in a discussion about Terms and Agreements?

They come into relevance about the time the phrase "despite what the courts may say" was uttered. The intent behind the phrase "you can pry it from my cold dead hands" is roughly the same.

Of course I think that armed revolution over ToS is utterly laughable. But I'm merely answering your question.

For an example of a situation the phase actually applies to, consider "despite what the courts may say we are removing the flock cameras".

READ CAREFULLY. YOU HAVE ALREADY AGREED TO THIS.

1. By reading the message that referred you to this page ("randomstring.org/~dsr/eula.html") you agree, on behalf of yourself and your employer, to release me from all obligations and waivers arising from any and all NON-NEGOTIATED agreements, licenses, terms-of-service, shrinkwrap, clickwrap, browsewrap, confidentiality, non-disclosure, non-compete and acceptable use policies ("BOGUS AGREEMENTS") that you believe I have entered into with you or your employer, its partners, licensors, agents and assigns, in perpetuity, without prejudice to my ongoing rights and privileges.

2. You further represent that you have the authority to release me from any BOGUS AGREEMENTS on behalf of your employer.

I wonder if appending something like this to the user agent string could work in court as a justification.

"Your Honour, the plaintiff's webserver engine thoroughly accepted my client's cookie which expressly stated the waiver of terms brought forward, and continued to serve requested content instead of stopping or refusing further interactions."

This is somewhat fair, but only as long as you agree that you then have no right to use these services.

I think there is a big difference between the EULA that comes attached to a product you've already paid for, that represents additional terms to what you had already agreed to when paying, and the T&C of a free service or a subscription, presented before payment.

You can't seriously claim that you have a right to use, say, YouTube without any restriction whatsoever. It is a private service, and you can either use it under the terms and conditions that its private owner establishes, or you can avoid using it at all.

> You can't seriously claim that you have a right to use, say, YouTube without any restriction whatsoever.

I think it would be reasonable for the regulator to establish hard limits on what any such restrictions are permitted to entail.

You know, basic consumer protection laws.

Absolutely, but that's a completely different claim than what GP was saying. They were saying that there is no binding agreement that you enter to just by using a product that has T&Cs shown on the screen.

> Every single ToS is written to benefit the company, and when necessary, harm the consumer.

If only more people actually understood that.

Let's make it easy for everyone. Here are the terms of pretty much every legal document people scroll through without reading:

> you own nothing

> the company owns everything

> you have no rights

> you promise not to try and exercise any right you think you have

> if you ever convince yourself that you actually do have rights, you agree to binding arbitration with the firm we pay

> you cannot do anything the company doesn't like

> the company can do literally anything it wants whether you like it or not

> the company is not responsible for anything, ever

> the company makes absolutely no guarantees about literally anything

> in case of any damages it's exclusively your fault and you agree to indemnify us in all possible circumstances

Reply on news.ycombinator.com