We hate terms and conditions, but we have to protect ourselves as well as you to the greatest extent possible and within reason. Well at least that’s what they tell us.
I will never understand how something that no one reads is supposed to protect anything. If we get sued for some sort of cookie hack, will our terms and conditions protect us? How is it legally binding unless I force people to read and acknowledge it? If I don’t tell everyone in this document that I own and created this content, then am I not protected by intellectual property law? How does that work for a musician playing their latest album at a bar? Should they have to hand out terms and conditions pamphlets prior to playing? Why does it feel like we are roped into playing the games that the major corporations play? If someone uses the website to sell drugs illegally, will my terms and conditions protect me?
On and on the questions just don’t have simple answers. Law makers, lawyers, consultants would probably say yes, terms and conditions help protect us; however there’s more to it than that. (Oh BTW if you didn’t guess I’m not a lawyer, and have zero business giving legal advice)
As one of my questions alluded, you can’t make a contract legally binding without acknowledgement. Which means typical website terms and conditions aren’t very enforceable. (A Zappos lawsuit helped flush that out) The fact that a 30 page terms and conditions that users have to acknowledge as ‘read’ is utter nonsense, even though some how the legal system seems to think highly of them.
Is it just me, or is there something wrong with a system that requires customers to scroll through 30 pages, acknowledge and then somehow be held to whatever conditions are there. We could put in these terms and conditions that you agree to pay us 1 dollar if you ever use this site. Thankfully, there’s some legal thing called “fairness”. But where is the line drawn? I think a dollar to use the site for the rest of all time is pretty reasonable; the court probably wouldn’t.
The point is we have been taught to do this, even though shouldn’t standard laws of fairness prevail?
As mentioned previously, how is copyright law actually handled? Why can’t simply publishing be enough? If someone copies my webpage and then puts a copyright / license notice on it will they be able to take me to court over my own writing because I didn’t put a copyright notice? How is the first use in patent law different from this?
Either way we love the idea of the creative commons. Aaron Swartz’s and the rest of the community ideas of open information will be the future like it or not. Why try and smash license information in a terms and conditions, when the law says you should ask to use someone else’s material unless otherwise stated?
Posts & Comments
Ok so here’s where I felt that there’s the highest chance of a legal issue. Yet, why they heck does it have to be stated that “posts and comments are not the views of the company”. It’s like a college campus being sued for a student posting something illegal on their bulletin board system; it’s simply unreasonable and impossible to truly enforce. It’s as if the ‘innocent until proven guilty’ doesn’t apply to Internet and technology terms and conditions.
Hyperlinking to our Content
In the template we were going to use, the first bullet stated that “government agencies, news organizations, etc” may link to our website without prior written approval. But yet we would require that other’s request approval.
How is that enforceable? What if I said no one is allowed to link anything without our approval? What would happen? Would I really be able to get the government, google, bing and the rest of the search engines to not link to our site? Aren’t they technically doing it without consent? If anything, isn’t it the reverse of what should happen?
“We shall not be held responsible for any content that appears on your Website.” Really? Has someone actually been held responsible for content on someone else’s website? So let’s say search engine ‘blahblah search’ automatically posts links to our site. Our site get’s a post from a disgruntled user that has illegal content. If the blah blah search engine get’s sued for having it they can blame us? Unless this terms and conditions is there?
Not to mention, there are probably tons of obsecure search engines, how are we supposed to notify them if they are harvesting links to our site automatically? It’s an almost impossible task.
Reservation of Rights
Shouldn’t all rights be reserved by default? Often found in this area is the right to “amend or change the terms and conditions”. Which makes no sense really, changing a contract requires acknowledgement (should require) and if you have to ensure something is acknowledged what’s the point of saying it can be changed?
Removal of content from our website
Of course anyone can ask for content to be removed. But what if that content was required for a lawsuit? We’d want to respect the wishes of the content producer, but would want to ‘reserve the right’ to keep the content available if something legally came up. What’s the point of this, to make people feel better about not being in-control of what they post? Shouldn’t this be a default rule regardless of the specific terms?
This is where we basically remove ourselves from all possible blame. We can’t be sure whatever we posted is correct or accurate and so we elaborate on this forever.
Bottom line, we don’t want to be liable…
Everything we’ve went over really seems like it’s not anything outlandish or outside the realm of standard ‘fair law’, why then do we need all these terms and conditions?
It seems there are a few main ‘gotchas’ that big companies use terms and conditions for; and one of them is agreeing to an arbitration process automatically. Instead of going to litigations, they can make things quicker and easier by pointing users straight to arbitration. Another one is the disclaimer which attempts to limit liabilities. Essentially every clause is all about limiting liability in some way or streamlining things when a liability occurs.
As many other’s have acknowledged, requiring users to read 30 pages of terms and conditions is ridiculous. It’s guaranteed this was a result of Internet lawsuits and corporations doing everything they could to protect themselves from liability.
Yet there is something wrong with this paradigm. We’d love to help fix it, but unfortunately the law is slow to change, and the solutions would probably not serve the interests of big corporations. Let us know your thoughts below, and remember we aren’t liable…