[conspire] terms of service, illustrated

Tony Godshall tony at of.net
Fri Sep 2 13:46:42 PDT 2011

On Fri, Sep 2, 2011 at 1:24 PM, Rick Moen <rick at linuxmafia.com> wrote:
> 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.

And there's also the fact that one might
consider an agreement morally binding
even if it's not legally enforceable.

> 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, ...

No, Rick, don't hold back, tell us what you really think...

> 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. ...

I like that.  With a system built on a GPL kernel, you know at least a
portion of the contractual terms are rational.

Thanks for teaching us about the law, Rick.  And for warming the blood
a bit.  The list is quite entertaining today.  And informative.

Best Regards.

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