Comment by ifuck | Hacker News Reader

Comment by ifuck | Hacker News Reader

As a non-technical person from a completely different industry, my take on TOS is this: I don't care.

Why would anyone care? Is it a legal binding contract between me and the comany? No. It might be taken into account if we go into court, but if they have it in their TOS that I bought an elephant from them - it will not hold.

If they grant me any rights in their TOS - do I trust them? No. I would never keep data in the cloud without backups. Or have the assumption that my data will be held private.

It's all just occupational therapy for lawyers.

> Is it a legal binding contract between me and the comany? No.

In the U.S., Web site terms of service / terms of use can indeed be a legal, binding contract:

+ If you click on "I agree" or something like it, then it's very likely to be binding, as more than one user has discovered to his chagrin. [1]

+ If you continue to use the Web site, and the site has a sufficiently-prominent notice that terms apply, then those terms are likely to be binding. [2]

[1] http://en.wikipedia.org/wiki/Clickwrap

[2] http://en.wikipedia.org/wiki/Browse_wrap; see also the Ninth Circuit's extensive discussion and citation of cases in http://cdn.ca9.uscourts.gov/datastore/opinions/2014/08/18/12...

I wonder if you can click on "I agree", and lie. Then you wouldn't be bound by the terms, because you didn't consent to them, but your wrongdoing would have been to access the service without permission.

It's a bit like violating the GPL: If you modify a GPL program and distribute it without source, you violate the license between you and the person you obtained the program from. But one could also argue you "stole" the program in the first place and used it without license. In both cases I wonder which "crime" would have the lesser consequences.

> I wonder if you can click on "I agree", and lie. Then you wouldn't be bound by the terms, because you didn't consent to them ....

It doesn't work that way --- courts look to objective manifestations of consent, not subjective intentions.

In kids' terms: Crossing your fingers behind your back doesn't get you off the hook.

There is however a reasonable chance the person clicking I agree is not the end user. Setup a Facebook account for your grandparents who never click agree. Are they then bound by the TOS?

In the end TOS are generally weakly enforceable. If facebook adds a 10,000$ annual fee in the fine print and there unlikely to be able to collect.

Adding a fee would be a material change, and would require further consent... also, the clauses about deleting content and restricting access are all made with future cash charges as a possibility.

Said another way: these are set up with the ability to charge you later in mind.

> Setup a Facebook account for your grandparents who never click agree. Are they then bound by the TOS?

My guess is that a court would ask: Can you reasonably be said to be the "agent" [1] for your grandparents --- that is, would a reasonable person, taking an objective look at the facts, conclude that your grandparents had authorized you to make binding agreements on their behalf --- for the kinds of transactions specified in the TOS?

If that's the question, then:

-- You probably are your grandparents' agent when it comes to agreeing, on their behalf, to the "customary" terms in TOS, such as (for example) a statement that the Web site owner owns all content;

-- You probably are not your grandparents' agent for purposes of agreeing to pay a $10K annual fee, and therefore they wouldn't be bound. (You might be bound, though ....)

[1] http://en.wikipedia.org/wiki/Law_of_agency

I'll use logmein or vnc on anyones machine and of my own accord click "I agree" for them for a small fee.

And under what terms do you provide that service? :)

I had read, someone had made their parrot click the confirmation button. Or maybe it was a cat. I don't really remember the details.

Most companies maintain pretty extensive analytics data - would a court consider whether or not a given user ever even actually looked at the ToS as some kind of objective proof that they couldn't have possibly agreed with it? Or say the user visited the ToS page, but only for 30 seconds - that is, not long enough that reading the entire ToS is within the realm of human possibility?

Some terms forms require you to scroll to the bottom, but they don't need to. Clicking "I agree" is good enough for you to be bound by the agreement.

I think they would be regarded as an other contracts of adhesion, and many provisions would be unenforceable (such as unconscionable terms)

http://en.wikipedia.org/wiki/Standard_form_contract

http://en.wikipedia.org/wiki/Unconscionability

The key here is to have a few drinks before clicking 'I Agree.' Contracts you enter into under the influence aren't valid.

> The key here is to have a few drinks before clicking 'I Agree.' Contracts you enter into under the influence aren't valid.

Indeed. I am a lawyer, and this is legal advice.

your browse_wrap link has an extraneous semicolon.

>> if they have it in their TOS that I bought an elephant from them - it will not hold.

Correct. Sneaking crazy shit into a TOS will not hold. They legal theory is called "unconscionability" - https://en.wikipedia.org/wiki/Unconscionability

But contract terms can be pretty damn severe before they're "unconscionable."

One to watch out for is "you agree not to participate in a class action" against the website. If a website screws over thousands of users for $100 each, they can't do much individually. And if they've all agreed not to participate in a class action, there isn't much they can do collectively either.

Your comment is unclear. Your main argument is that you don’t care, but why don’t you care?

I see two hypotheses.

1. Because you don’t care about your rights at all > Then this project is not for you, move on.

2. Because you think the terms and privacy policies of services you use online are not “binding”? > Then you’re very naive and a bit ignorant about the law.

It’s alright to not know how the law and how contract works exactly, that’s why you need this project even more; because that’s what it does: it makes things simpler to understand for you.

You really should read your TOS, if not at least skim it. Most have language like this in it:

THIS IS A CONTRACT. PLEASE READ THESE TERMS CAREFULLY. IF YOU DO NOT AGREE TO THESE TERMS DO NOT USE THE SERVICE AND CONTACT US IMMEDIATELY TO TERMINATE IT.

source: https://www.verizon.com/FORYOURHOME/GOFLOW/MyVerizonNew/Acco...

By specifically stating what you are agreeing to is a contract, you're legally bound by the terms set forth therein. Whether a court of law and judge agrees with that is a separate matter. However, for simplicity, it is a binding, legal contract.

> Why would anyone care? Is it a legal binding contract between me and the comany? No. It might be taken into account if we go into court, but if they have it in their TOS that I bought an elephant from them - it will not hold.

That's interesting. Do you have any sources on that? Why do these services even bother having ToS?

When I read the EULA of softwares sold in France, they often contain restrictions on reverse engineering. In France, reverse engineering is a protected right for interoperability purpose. If some parts of the EULA are illegal, how can it be a legal binding contract.

Because in France, a judge may very well decide that some part of the contract is illegal but consider that the remaining still holds. That happens all the time.

EULAs like most standard terms will contain severability clauses which basically say that even if one clause is invalid the remainder still holds...

If France(as is in pretty much everywhere in the EU) any EULA that is accepted by default by opening a product(think MS Windows packaging) is void by default, because courts ruled that opening a package does not constitute entering a legally binding contract,no matter what the packaging says.

In the EU pretty much any of the online T&Cs as well as EULAs are completely invalid. They can say literally whatever, if you haven't signed an actual piece of paper it's not going through in any court.

Off-topic: you should start an AMA to give more background to your industry and how it relates to startups / people who move in HN circles.

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