[conspire] terms of service, illustrated

Rick Moen rick at linuxmafia.com
Fri Sep 2 13:24:24 PDT 2011

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

> It is the beginning of the negotiation, sure,  For a $5-$20 a month product
> like I sell?  there is not enough room for individual negotiations. 
> you take it or you don't.

Sure, but I'll bet that either you don't have ridiculous contract terms,
or, if you do, an informed reader will readily determine them to be
unenforceable by operation of statute or caselaw.  _Or_, if neither, she
or she can walk away.  Competitive market (or you can do it yourself).

I _have_ walked away from particular offerings on account of absurd
contract terms, even in cases where they were inherently devoid of legal
force, simply because I excessively disliked the implicit attitude
towards customers and judged it to bode poorly for a satisfactory
business relationship.

Absurd contract terms are _extremely_ common among alleged 'agreements'
shoved at technical employees.  E.g., I don't take it personally when a
California employer wants me to sign yet another 'proprietary information
and inventions agreement', even though they are completely devoid of
validity by California statute.  They know it, I know it, and we each
pretend we don't:  It's in effect a fake-out that's useful to buffalo
any employees who are oblivious about real-world law -- which is the
overwhelming majority of them, making the 'agreements' a useful
corporate psychological ploy.

In fact, Luke, it occurs to me that, if we have to review the real-world
aspects of law (contract or otherwise) on a mailing list where y'all
are generally about as clueful on that subject as New Guinea highlanders
are about jet engines, this is likely to become a long and tiring
conversations, just like one of those where you're trying to talk about
computer security and dumbfucks keep dropping in to remind everyone that
'Perfect security is possible only if you drop the machine in concrete,
put the concrete block in a bank vault, close the door, and lose the

> I think this is similar to the position amazon is in.

I think that only an idiot would seek to negotiate with Amazon about teh
Terms of Service for a Kindle, when it's a whole lot easier and more
effective to simply spot, in the contract terms, the mayhem they purport
to give themselves the right to indulge, and then take technical
measures to prevent them from doing that.

_Or_ sell the Kindle and get a Nook, root it, and put a modified, fully
open-source Android build onto a microSD card to run it from.

Did I at some point strike you as an idiot?  Did I ever suggest that it
is useful or productive to attempt to renegotiate any and all purported

> > So, sorry, it's not just a matter of bad PR.
> Hm.  Maybe so.  But with the value of my company?  Sure, if you wanted
> to pay someone to sue me, and you were willing to spend a fair sum 
> of money on a good lawyer to argue your points, yeah, you could shut me 
> down, no question, and fight my lawyer then over who gets the servers and
> the smoking hole of a company.  But very likely?  my company isn't worth 
> enough to make it profitable, even if you know 100% you will win.

The desperate, the unlucky, and the cholerically angry sue for damages.
Smart people assert their legal positions using less expensive and more
useful means.

If I were in a business relationship with you and you were jerking me
around, and if you were attempting to use alleged contract terms grossly
in violation of law (e.g., implied covenants of good faith and fair
dealing), _and_ if gentle persuasion failed to suffice, I would not be
idiot enough to sue for financial damages.  Depending on the financial
and pragmatic realities of the situation, I would either wish you a nice
day, Friend Citizen, and take my business elsewhere, or would file in
court for a remedy in equity of specific performance.

Again, I don't remember admitting to being an idiot -- though,
certainly, most computer people who make pronouncements about legal
matters are.  And, I'm guessing you haven't even heard the expressions
'remedy in equity' or 'specific performance' before, right?

As I said, if we have to go through the fundamentals, this would be a
looooong conversation.

> Hm.  well, what I'm trying to say is that it's awful hard to come up with a
> reasonable contract these days, even when it is your intent to come up
> with something reasonable.   

No, it really isn't.

I'm not going to advise you on any specific legal matter directly
relevant to your business, in part to steer clear of the UPL statutes.
(Look it up.)  However, I'll give you for free an example in a different
area of law.  This is something you turn in with the NDA that some
asshole shoves at you and claims you are required to sign.  You sign the
NDA and write immediately above your name 'Appendix A is incorporated by

'NDA Addendum' on http://linuxmafia.com/kb/Licensing_and_Law/

> but, on the other hand, I think it is reasonable for me to be angry.

Anger is the booby prize.

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