[conspire] terms of service, illustrated

Rick Moen rick at linuxmafia.com
Wed Aug 31 19:41:43 PDT 2011

Quoting Luke S. Crawford (lsc at prgmr.com):

> But speaking as a person who does business, nobody expects the business 
> to actually exercise those rights under normal circumstances.

Speaking as a person who does business, and who has studied business law
in some depth, I know that proposed contracts are a beginning of
negotiation.  Deirdre could tell you about the laughable clauses in a
car-sale contract I lined out last year, for example.  (They told us
we couldn't.  I got up and started to leave.  The sales manager was
summoned.  We talked.  Adjustments were made.)   Also:

> Heck even the most basic of common law 'you have the right to 
> refuse to do business with'  etc.

That alleged 'right' is of course something of a myth in many areas of
business, on account of the public accomodation statutes along with
other statutory limits.  Which brings me to:

> But the court of public opinion would have my head on a stick,
> and rightly so.

So would statutory limitations on service businesses and the implied
covenants of good faith and fair dealing (depending on the particulars
of how the parties behaved).

So, sorry, it's not just a matter of bad PR.

However, getting back to my earlier point, it is _often_ useful to
examine boilerplate contracts for odd clauses that highlight things the
other party imagines it might need the right to do, or prevent you from
doing -- and then figuring out why that is.  Thus, as I said, Kindle
users should have seen it coming.

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