No one reads the terms of service. Lawmakers want to fix that with 'TLDR' bill(washingtonpost.com)
washingtonpost.com
No one reads the terms of service. Lawmakers want to fix that with 'TLDR' bill
https://www.washingtonpost.com/politics/2022/01/13/no-one-reads-terms-service-lawmakers-want-fix-that-with-new-tldr-bill/
153 comments
That's exactly how it should work, any legal system worth its salt should base consumer laws on consumer expectations and not any company's opinion. It's too easy for companies to produce a 300 pages document saying "you have no rights to anything, click accept" and that's why terms of services for consumer products cannot work.
Theoretically it already does in the US too. To some extent it does so even in practice. You already can't just write whatever clause you want into a contract, and "contracts of adhesion" are even more limited.
It's just that when we're talking about consumer contracts for such small quantities of money it's hard for a consumer to justify fighting anything at all. In a lot of ways this is the primary problem, not the contracts themselves. You'll never stop companies from trying to do bad things, but the way they can siphon, say, 50 cents worth of annoyance and bad practices away from 100 million people is the relatively new thing that we have no way of handling in our currently super-heavyweight legal system. We don't have anything suitable for dealing with that. Even a class-action lawsuit is hard to justify in such a case, the lawyers would eat 250% of the winnings.
I would say that this is hardly even worth worrying about, if the biggest problem someone has is 50 cents extra to a company you are living a charmed life, except that it at times feels like it's every single company I deal with doing this to me, so it adds up to something quite large. Everybody is getting shaved like this by a large number of companies. But it's hard to deal with, there's no single large locus you can focus on.
It's just that when we're talking about consumer contracts for such small quantities of money it's hard for a consumer to justify fighting anything at all. In a lot of ways this is the primary problem, not the contracts themselves. You'll never stop companies from trying to do bad things, but the way they can siphon, say, 50 cents worth of annoyance and bad practices away from 100 million people is the relatively new thing that we have no way of handling in our currently super-heavyweight legal system. We don't have anything suitable for dealing with that. Even a class-action lawsuit is hard to justify in such a case, the lawyers would eat 250% of the winnings.
I would say that this is hardly even worth worrying about, if the biggest problem someone has is 50 cents extra to a company you are living a charmed life, except that it at times feels like it's every single company I deal with doing this to me, so it adds up to something quite large. Everybody is getting shaved like this by a large number of companies. But it's hard to deal with, there's no single large locus you can focus on.
I think there are two reasons why it works in practice in Germany:
a) much lower tolerance for this kind of thing - if a company does this, people will consider them scammers, so there is a high cost to repeatedly trying tricks like this
b) the Verbraucherzentralen, consumer rights organizations that can sue on behalf of all consumers (not in the sense of a class action suit, but in the sense of making a company stop an abusive practice). They also generate press releases, leading to the above-mentioned reputational damage.
I'm still disappointed that obvious scams (e.g. hiding a subscription that very few customers would knowingly agree to in the fine print) are handled through this system, instead of the criminal justice system. You still need the civil system for the less egregious cases, but if you send the obvious ones to jail, fewer will try to "dance around the line".
Edit: Completely forgot - your competitors can also sue you/get an injunction to stop you from engaging in unfair business practices.
a) much lower tolerance for this kind of thing - if a company does this, people will consider them scammers, so there is a high cost to repeatedly trying tricks like this
b) the Verbraucherzentralen, consumer rights organizations that can sue on behalf of all consumers (not in the sense of a class action suit, but in the sense of making a company stop an abusive practice). They also generate press releases, leading to the above-mentioned reputational damage.
I'm still disappointed that obvious scams (e.g. hiding a subscription that very few customers would knowingly agree to in the fine print) are handled through this system, instead of the criminal justice system. You still need the civil system for the less egregious cases, but if you send the obvious ones to jail, fewer will try to "dance around the line".
Edit: Completely forgot - your competitors can also sue you/get an injunction to stop you from engaging in unfair business practices.
It's same in France yeah, any term can be tossed if arguably abusive and nothing is set in stone. So ofc we can renege them for a week, they re generally fair etc.
Where I live now, Hong Kong, even oral contracts have value, if it's written you re gonna give your kidney, you better book a surgeon. We cant regret a contract even the first week (they tried to pass a bill on that, it was rejected because inconvenient for companies...).
Surprisingly though, it makes for much more careful people, who care for, and respect, contracts. In France, you dont even have to pay rent, in HK, it's a kick in the ass and your stuff thrown aways a day after the missed deadline.
Where I live now, Hong Kong, even oral contracts have value, if it's written you re gonna give your kidney, you better book a surgeon. We cant regret a contract even the first week (they tried to pass a bill on that, it was rejected because inconvenient for companies...).
Surprisingly though, it makes for much more careful people, who care for, and respect, contracts. In France, you dont even have to pay rent, in HK, it's a kick in the ass and your stuff thrown aways a day after the missed deadline.
People have to pay rent in France. Yes, you can’t kick out the non paying renters during winter, and it can take many months to kick people out legally, and some people abuse the rules. But most people pay.
it seems hard to define what unexpected means, and that case laws to establish them would take ages, be difficult to predict for a long time, and can be avoided by the company settling discretely, and prevent any actual precedents.
Legislation should be written so that litigation wouldn't be required to uphold consumer rights.
Imagine similar concept to GDPR, but for consumer rights that must be adhered to, or be fined. You cannot sign away your rights under GDPR, and you automatically get those rights by virtue of being based in Europe.
Legislation should be written so that litigation wouldn't be required to uphold consumer rights.
Imagine similar concept to GDPR, but for consumer rights that must be adhered to, or be fined. You cannot sign away your rights under GDPR, and you automatically get those rights by virtue of being based in Europe.
> it seems hard to define what unexpected means, and that case laws to establish them would take ages, be difficult to predict for a long time, and can be avoided by the company settling discretely, and prevent any actual precedents.
Weirdly enough, this somewhat works in Germany. Sure, I know Lawyers who say that pretty much any T&C has terms that are invalid under this law but society has not collapsed, companies don't get sued constantly and the most egregious terms get ruled against. Sounds nice?
Of course, Germany/EU is a different legal environment than USA so this does not apply 1:1.
Weirdly enough, this somewhat works in Germany. Sure, I know Lawyers who say that pretty much any T&C has terms that are invalid under this law but society has not collapsed, companies don't get sued constantly and the most egregious terms get ruled against. Sounds nice?
Of course, Germany/EU is a different legal environment than USA so this does not apply 1:1.
Fantastic idea. I don't think it's reasonable to expect every individual to pay $1000 to a lawyer to review every agreement they ever sign, when they're asked to sign a 10-page document full of legalese multiple times a week for ordinary purchases.
You still would need to get a lawyer if the counterpart doesn't share your view, and lawyers are expensive in Germany. For some reason I believe that it's easier to sue in the US than in Germany, from what I get to read online, since I've never got sued or sued anyone.
I think the missing part of the puzzle might be the Verbraucherzentralen, consumer rights organizations that can sue on behalf of all consumers (not in the sense of a class action suit, but in the sense of making a company stop an abusive practice).
Edit: Completely forgot - your competitors can also sue you/get an injunction to stop you from engaging in unfair business practices.
Edit: Completely forgot - your competitors can also sue you/get an injunction to stop you from engaging in unfair business practices.
Standard TOS contract anyone can use, and any variations need individual sign off and consent per point.
Sites would then need to decide how many variations to enact, knowing full well every extra one reduces signups.
Sites would then need to decide how many variations to enact, knowing full well every extra one reduces signups.
Standard terms are a good idea. Wales just did this with (housing tenancy) occupation contracts
The problem with standardization of anything in law is that inevitably it slows down innovation a bit. That's obviously not a problem with something like housing, but in tech it might be an issue.
I'd rather have "ideological" bills that explicitly say companies can't take the piss, empowering judges to throw the book at them with liberal interpretations.
I'd rather have "ideological" bills that explicitly say companies can't take the piss, empowering judges to throw the book at them with liberal interpretations.
This isn't about tech though. It's about Terms of Service. The Legal Contract between the tech company and the user. I don't see where "innovation" comes into this other than disadvantaging the user.
Anybody who followed the evolution of GPL knows changes in technology absolutely affected the legal setup around such technology (and viceversa). Neither side operates into a vacuum.
Note I'm not completely contrary to a legal intervention in the matter (the EULA concept must die); just that it makes more sense to put in law that companies must not take the piss, not that they can take the piss as long as they follow the letter of some standard form. Then they can absolutely follow with standard guidelines that are somewhat advisory, as a way to speed up enforcement; but it's important that the law establishes overall principles, so that it's more future-proof.
Note I'm not completely contrary to a legal intervention in the matter (the EULA concept must die); just that it makes more sense to put in law that companies must not take the piss, not that they can take the piss as long as they follow the letter of some standard form. Then they can absolutely follow with standard guidelines that are somewhat advisory, as a way to speed up enforcement; but it's important that the law establishes overall principles, so that it's more future-proof.
Well, if you want to innovate then, atleast as far as Germany is concerned, you have to lay out the non-standard parts of your contract in clear and simple terms along with pointing out where to read the full text.
If I give you a software copy with non-standard license, courts here won't uphold such licenses if you don't point out it's non-standard and in what ways. Because the consumer can't be expected to read and understand every legal contract they have to sign. They aren't lawyers, after all.
If I give you a software copy with non-standard license, courts here won't uphold such licenses if you don't point out it's non-standard and in what ways. Because the consumer can't be expected to read and understand every legal contract they have to sign. They aren't lawyers, after all.
Do I need innovation in a subscription agreements? I dont think so. If I am paying X for service I dont need any innovative interpretation of what it means. I just want my service delivered..
> The problem with standardization of anything in law is that inevitably it slows down innovation a bit. That's obviously not a problem with something like housing, but in tech it might be an issue.
Software development is the side where I'd expect the most slow-down (rather than EULAs) but if anything, I think standardisation removes friction from innovation — I'm much more likely to adopt your lib for example if you tell me it's MIT licensed rather than something you've written something a bespoke library for.
Similarly, imagine if a new start-up creates a new Alexa competitor, say — I'd much prefer if they said "we treat your personal data as standard, under this commons licence. Then, we also have some niche requirements that are A/B/C and this is how they explicitly work", rather than pages long TOS that I need to go through with a fine-tooth comb to see if anything has been snuck in.
Software development is the side where I'd expect the most slow-down (rather than EULAs) but if anything, I think standardisation removes friction from innovation — I'm much more likely to adopt your lib for example if you tell me it's MIT licensed rather than something you've written something a bespoke library for.
Similarly, imagine if a new start-up creates a new Alexa competitor, say — I'd much prefer if they said "we treat your personal data as standard, under this commons licence. Then, we also have some niche requirements that are A/B/C and this is how they explicitly work", rather than pages long TOS that I need to go through with a fine-tooth comb to see if anything has been snuck in.
This is genius, a fair and balanced option.
These are a godsend for tenants in Germany. I frequently see these in tenant right content from tenant unions. They say which common clauses can be safely ignored if they create an unbalanced agreement between landlord and tenant.
My old boss described BGB as a masterpiece, and the deeper I dive in German bureaucracy, the more I agree.
My old boss described BGB as a masterpiece, and the deeper I dive in German bureaucracy, the more I agree.
Statutory rights is exactly what’s needed, e.g:
* ban mandatory arbitration
* ban “tax recovery charges” on top of advertised prices
* ban mandatory arbitration
* ban “tax recovery charges” on top of advertised prices
Banning mandatory arbitration is actually one of the explicitly listed items in Germany.
I think hidden charges are probably prohibited in a separate law, but basically if you see the price that's the price you pay.
Actually, here it is https://www.gesetze-im-internet.de/pangv_2022/BJNR492110021.... - Google Translate:
(1) Entrepreneurs who offer goods or services to consumers or who advertise goods or services to consumers by stating prices must state the total prices. [...] (3) If a price is broken down, the total price should be highlighted.
(And that "should" is a "shall")
I think hidden charges are probably prohibited in a separate law, but basically if you see the price that's the price you pay.
Actually, here it is https://www.gesetze-im-internet.de/pangv_2022/BJNR492110021.... - Google Translate:
(1) Entrepreneurs who offer goods or services to consumers or who advertise goods or services to consumers by stating prices must state the total prices. [...] (3) If a price is broken down, the total price should be highlighted.
(And that "should" is a "shall")
Even with substantial differences, I believe that the principle of
<Contra proferentem: "Against the offerer"> described in section
8.4.2 of "Notes on Contract Drafting"
(https://toedtclassnotes.site44.com/Notes-on-Contract-Draftin...) also offers a similar level of protection against unexpectedly ambiguous claims.
UK has a similar law.
https://www.legislation.gov.uk/primary+secondary?title=Unfai...
Also a general legal principle that the terms of a contract are interpreted in a way least favourable to the party making the offer where there is doubt as to the interpretation.
https://www.legislation.gov.uk/primary+secondary?title=Unfai...
Also a general legal principle that the terms of a contract are interpreted in a way least favourable to the party making the offer where there is doubt as to the interpretation.
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I'm aware of these laws but I've always wondered - what if a German startup really does want to operate in a new and "unexpected" way, but doesn't want to trick their customers? They put the unexpected stuff clearly on their website, not buried in the ToS. I don't see any ethical problem with that - people can make an informed choice about whether they want to do business with the company. BUT - it would still have to be in the official ToS and now that unusual stuff would be void.
Doesn't this law prevent startups from developing innovative business models even when they are being upfront about it?
Doesn't this law prevent startups from developing innovative business models even when they are being upfront about it?
Assuming it’s not an explicitly forbidden clause, from the law [0] translated by deepl:
> (1) Provisions in general terms and conditions are invalid if they unreasonably disadvantage the contractual partner of the user contrary to the requirements of good faith. An unreasonable disadvantage can also result from the fact that the provision is not clear and understandable.
So if the novelty of the startup is an unreasonable disadvantage to the customer, it would be illegal. Which sounds good to me.
[0] https://www.gesetze-im-internet.de/bgb/__307.html
> (1) Provisions in general terms and conditions are invalid if they unreasonably disadvantage the contractual partner of the user contrary to the requirements of good faith. An unreasonable disadvantage can also result from the fact that the provision is not clear and understandable.
So if the novelty of the startup is an unreasonable disadvantage to the customer, it would be illegal. Which sounds good to me.
[0] https://www.gesetze-im-internet.de/bgb/__307.html
IANAL, but surely if it's a core part of the business and they plainly explain it on the front page, that wouldn't be considered unexpected.
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How is "surprising" defined and who decides? Can this be abused sonehow?
The law does contain a bit more specific definitions but not much, it's very much open to interpretation, but that's what judges are for.
It does create uncertainty, and sometimes clauses get declared invalid years later and customers get bitten by statutes of limitations if they didn't sue themselves, but these cases are also really expensive for the companies so it's in their interest to not get too creative.
In practice, it seems to work really well. I'm always astonished how much more on edge I have to be in other countries when agreeing to anything. In Germany, most of the "legal scams" (e.g. subscriptions hidden in fine print) don't exist, or are really easy to get out of.
It does create uncertainty, and sometimes clauses get declared invalid years later and customers get bitten by statutes of limitations if they didn't sue themselves, but these cases are also really expensive for the companies so it's in their interest to not get too creative.
In practice, it seems to work really well. I'm always astonished how much more on edge I have to be in other countries when agreeing to anything. In Germany, most of the "legal scams" (e.g. subscriptions hidden in fine print) don't exist, or are really easy to get out of.
Usually by the Reasonable Person Test: https://en.wikipedia.org/wiki/Reasonable_person.
It can be pretty subjective, but it often gets clarified with enough common law precedent (which can be amended with a new law if it becomes abused/unfair/odd).
It can be pretty subjective, but it often gets clarified with enough common law precedent (which can be amended with a new law if it becomes abused/unfair/odd).
The top level comment is talking about Germany, which is not a common law jurisdiction.
Precedent by other court decisions is still relevant for law interpretation in Germany. BVG and BGH decisions are law-like. With a somewhat good argument any court decision can become a good template for a case.
The opposite is also interesting to observe: In common law countries the written law also becomes more and more fine grained limiting jurisdical law making.
The opposite is also interesting to observe: In common law countries the written law also becomes more and more fine grained limiting jurisdical law making.
Good in theory, but how do you deal with slow shifts from unusual to common? eg. I bet arbitration clauses were unusual at one time before the activity became popular.
I don't think easy-to-digest summaries change anything. It should just not be possible to apply conditions as a click-through. A contract is supposed to be a meeting of the minds, and a mindless way to accept it is not that. Same goes for like car rental contracts imo. It's clear that a normal person is agreeing to the obvious stuff, but anything weird slipped in should just be unenforceable.
So I guess what I'm saying is there should be a "standard contract" based on common sense that click though providers are deemed to be entering into, and anything else slipped in is invalid.
So I guess what I'm saying is there should be a "standard contract" based on common sense that click though providers are deemed to be entering into, and anything else slipped in is invalid.
To add to that, how is it a meeting of the minds of the contract cannot be altered by one of the parties?
If it is a EULA, a rental contract on an iPad, or an employment contract delivered through DocuSign then I can't strike or amend any clauses I disagree with.
If it is a EULA, a rental contract on an iPad, or an employment contract delivered through DocuSign then I can't strike or amend any clauses I disagree with.
> To add to that, how is it a meeting of the minds of the contract cannot be altered by one of the parties?
I think that's a mis-interpretation of 'meeting of minds'. The point is that when you sign the contract both parties are in agreement, but if either party is not happy with the agreement then they can either alter the terms until everyone is happy or they can simply not accept the agreement.
You could try suggesting changes to the agreement (e.g. with google when you sign up for an account), but they'll almost certainly just say they're not interested in making such an agreement. Perhaps if there was a few million dollars on the table they'd be more interested in adjusting the terms, but as it is they're offering a largely free service so most people have very little bargaining power.
I think that's a mis-interpretation of 'meeting of minds'. The point is that when you sign the contract both parties are in agreement, but if either party is not happy with the agreement then they can either alter the terms until everyone is happy or they can simply not accept the agreement.
You could try suggesting changes to the agreement (e.g. with google when you sign up for an account), but they'll almost certainly just say they're not interested in making such an agreement. Perhaps if there was a few million dollars on the table they'd be more interested in adjusting the terms, but as it is they're offering a largely free service so most people have very little bargaining power.
Which is why a contract is insufficient as a form of consumer protection. Think GDPR - i think despite the disruptions as a result from it, GDPR has done a fairly good job in forcing rules so that companies complying is considered to have provided sufficient privacy and data protection.
Why not produce such a set of rules for consumer protection?
Why not produce such a set of rules for consumer protection?
I'd also things to be explicitly unenforceable in certain contracts like binding arbitration or gag clauses. If these are challenged in court the company automatically loses and has to pay a substantial fee for even having them in the contract in the first place.
> So I guess what I'm saying is there should be a "standard contract" based on common sense that click though providers are deemed to be entering into, and anything else slipped in is invalid.
This is usually the consumer (protection) law isn't it? That sets up expectations and obligations between consumers and manufacturers of such items - everything from warranty periods to allowed discrepancy and defect rates.
TOS/EULAs are there usually to modify and take away rights from consumer laws.
This is usually the consumer (protection) law isn't it? That sets up expectations and obligations between consumers and manufacturers of such items - everything from warranty periods to allowed discrepancy and defect rates.
TOS/EULAs are there usually to modify and take away rights from consumer laws.
What if there were no terms, it's just "if you can, you may." Of course subject to laws (like fraud or vandalism) and the company's moderation efforts, of course.
Standard contracts make a lot of sense to my non-lawyer mind, almost like having the different kinds of open source licenses for software that have become recognizable.
Any real-world examples of this being achieved in any business domain and jurisdiction?
Yes: the Uniform Commercial Code which is the standard contract that governs virtually all commercial transactions in the United States.
When you buy something at Wal-Mart, your sales contract is the UCC. When you order something online or by phone, and neither of you specify details of things like form of payment, warranties, shipping... those details are filled in by the UCC. And it's called "uniform" because all of the states have individually codified the same default contract into their state laws.
https://www.law.cornell.edu/wex/table_ucc
This uniform contract is also where several warranties arise that people take as a given precisely because the UCC inserts them into every sale that doesn't disclaim them: the warranties of merchantability and fitness for a purpose. Those are your guarantees that when you buy something from someone, the goods will do the thing they're supposed to do and there's nothing significantly wrong with them. It's why you have a right to a refund/return when the thing you bought is broken, or doesn't do what it says it does.
When you buy something at Wal-Mart, your sales contract is the UCC. When you order something online or by phone, and neither of you specify details of things like form of payment, warranties, shipping... those details are filled in by the UCC. And it's called "uniform" because all of the states have individually codified the same default contract into their state laws.
https://www.law.cornell.edu/wex/table_ucc
This uniform contract is also where several warranties arise that people take as a given precisely because the UCC inserts them into every sale that doesn't disclaim them: the warranties of merchantability and fitness for a purpose. Those are your guarantees that when you buy something from someone, the goods will do the thing they're supposed to do and there's nothing significantly wrong with them. It's why you have a right to a refund/return when the thing you bought is broken, or doesn't do what it says it does.
Thanks for the reminder. UCC recently introduced Article 12 which covers digital assets like CBDC and cryptocurrency via the category of CER (controllable electronic records). Article 12 says that custody/control of a private key plays a prominent role in seniority of claims against digital assets, including scenarios involving the purchase of possibly-stolen digital assets.
https://www.clearygottlieb.com//news-and-insights/publicatio...
> Article 12 – dealing directly with the acquisition and disposition of interests (including security interests) in “controllable electronic records,” which would include Bitcoin, Ether, and a variety of other digital assets. Under Article 12 and associated amendments to Article 9, a party may perfect a security interest in certain controllable electronic records by obtaining “control” of such records. In addition, Article 12 confers an attribute of negotiability on controllable electronic records – a good faith purchaser for value who obtains control (a “qualifying purchaser”) takes its interest free of conflicting property claims.
https://www.clearygottlieb.com//news-and-insights/publicatio...
> Article 12 – dealing directly with the acquisition and disposition of interests (including security interests) in “controllable electronic records,” which would include Bitcoin, Ether, and a variety of other digital assets. Under Article 12 and associated amendments to Article 9, a party may perfect a security interest in certain controllable electronic records by obtaining “control” of such records. In addition, Article 12 confers an attribute of negotiability on controllable electronic records – a good faith purchaser for value who obtains control (a “qualifying purchaser”) takes its interest free of conflicting property claims.
This is also why releasing code without a license is dangerous. Without a license your code defaults to the UGC and thus you become liable for "fit for purpose". Instead even basic open source licenses must disclaim the default clauses if the UGC like warranty and fit for purpose.
I'm not sure about software that is given away for free, but "fit for purpose" liability certainly sounds like a sensible idea for any software that is sold, whether or not it includes free or open source components.
This makes even more sense as software becomes a key component of more products.
This makes even more sense as software becomes a key component of more products.
At this point the whole thing feels perverse. Almost no software guarantees "fit for purpose". It really should be other way around at this point. The license would have to say it establishes warranty if it doesn't there is no such warranty or fit for purpose.
This also implies the drawback of doing it this way: The UCC is created by private entities and then legislatures are pressured to adopt it as-is "for uniformity" even though they were the ones elected to set government policy and not the drafters of the UCC.
> This also implies the drawback of doing it this way: The UCC is created by private entities and then legislatures are pressured to adopt it as-is "for uniformity" even though they were the ones elected to set government policy and not the drafters of the UCC.
The schoolhouse rock version of how a bill becomes law is basically pure fiction at this point. Certainly at the federal level I'm not sure a single so-called legislator is competent to draft a bill. Occasionally they will have their staff draft some showboat bill that will likely never even pass committee, but almost all the bills that become law are drafted by some interest group or other, who then hire lobbyists to find a "legislator" willing to rubber stamp it.
It's surprising that it's not more of a well known fact that the USA isn't even remotely a real popularly representative democracy, given how completely obvious it is to all but the most casual observer. Princeton even published a study on the subject[1].
[1] https://scholar.princeton.edu/sites/default/files/mgilens/fi...
The schoolhouse rock version of how a bill becomes law is basically pure fiction at this point. Certainly at the federal level I'm not sure a single so-called legislator is competent to draft a bill. Occasionally they will have their staff draft some showboat bill that will likely never even pass committee, but almost all the bills that become law are drafted by some interest group or other, who then hire lobbyists to find a "legislator" willing to rubber stamp it.
It's surprising that it's not more of a well known fact that the USA isn't even remotely a real popularly representative democracy, given how completely obvious it is to all but the most casual observer. Princeton even published a study on the subject[1].
[1] https://scholar.princeton.edu/sites/default/files/mgilens/fi...
> Princeton even published a study on the subject[1].
And that study is false; what it actually shows is that elites and average citizens agree on most things that pass, not that only elites approve of them.
https://www.vox.com/2016/5/9/11502464/gilens-page-oligarchy-...
Remember, when you come across some cynical information that shows the average person is a sheeple/NPC/etc, it’s not true! Average people are usually right.
And that study is false; what it actually shows is that elites and average citizens agree on most things that pass, not that only elites approve of them.
https://www.vox.com/2016/5/9/11502464/gilens-page-oligarchy-...
Remember, when you come across some cynical information that shows the average person is a sheeple/NPC/etc, it’s not true! Average people are usually right.
Average people observably have many of their opinions assigned to them by elites. Take Ukraine for example. I assure you that if our elites favored Russia, the “average people” would all have Russian flags in their profiles.
In those cases where average people and elites do disagree, such as border security, the elites reliably get their way.
And yes I’ve seen the shoddy attempts to refute the Princeton study. They’re unconvincing.
In those cases where average people and elites do disagree, such as border security, the elites reliably get their way.
And yes I’ve seen the shoddy attempts to refute the Princeton study. They’re unconvincing.
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Yep, that’s how it works in Germany. There are laws that cover many cases for, i.e., lease contracts, online shopping, digital services. The terms of service just cover the specifics and cannot contain “surprising” or “unusual” things. The general idea is that a normal consumer neither have the knowledge nor the time to understand in depth legalese.
As one example, which is a quite similar case, the standard lease contract for apartments in Germany is 4 pages. In the USA I’ve had between 21 and 27 pages so far.
As one example, which is a quite similar case, the standard lease contract for apartments in Germany is 4 pages. In the USA I’ve had between 21 and 27 pages so far.
In the US: they are long, but in my experience they're also extremely usual. Every apartment I've rented (5 in my city) has used the exact same template; with some blank lines and checkboxes where they write in "You'll pay this much in rent" "for this long" "pets are allowed" "garage: n/a" "satellite dish: n/a" etc.
The point being: there are no consequences for a landlord slipping one extreme condition into that template. Maybe on page 17.
And, as long as it doesn't breach any explicit laws, that condition is equally enforceable.
The German system above appears to specifically address that issue with US law.
And, as long as it doesn't breach any explicit laws, that condition is equally enforceable.
The German system above appears to specifically address that issue with US law.
> And, as long as it doesn't breach any explicit laws, that condition is equally enforceable.
That isn't true; if the court concludes that no reasonable person would ever have knowingly agreed, it will find that the condition is unenforceable. It's a real standard, but I don't recall the relevant technical terms.
Obviously it's hard to meet that standard, but breaching an explicit law is very much not a requirement for unenforceability.
edit:
https://en.wikipedia.org/wiki/Williams_v._Walker-Thomas_Furn....
> when a party of little bargaining power, and hence little real choice, signs a commercially unreasonable contract with little or no knowledge of its terms, it is hardly likely that his consent, or even an objective manifestation of his consent, was ever given to all the terms.
> In such a case the usual rule that the terms of the agreement are not to be questioned should be abandoned and the court should consider whether the terms of the contract are so unfair that enforcement should be withheld.
That isn't true; if the court concludes that no reasonable person would ever have knowingly agreed, it will find that the condition is unenforceable. It's a real standard, but I don't recall the relevant technical terms.
Obviously it's hard to meet that standard, but breaching an explicit law is very much not a requirement for unenforceability.
edit:
https://en.wikipedia.org/wiki/Williams_v._Walker-Thomas_Furn....
> when a party of little bargaining power, and hence little real choice, signs a commercially unreasonable contract with little or no knowledge of its terms, it is hardly likely that his consent, or even an objective manifestation of his consent, was ever given to all the terms.
> In such a case the usual rule that the terms of the agreement are not to be questioned should be abandoned and the court should consider whether the terms of the contract are so unfair that enforcement should be withheld.
Absolutely, but there are a few points that render this ineffective as a market mechanism in our current reality.
Point 1: You're probably yourselves vs a professional management company / large property owner. They obviously bring more resources and experience to a legal case than you do, in addition to simply having more time to engage in one.
Point 2: That's assuming you can even take the case to court, and didn't sign away any disputes into arbitration.
Point 1: You're probably yourselves vs a professional management company / large property owner. They obviously bring more resources and experience to a legal case than you do, in addition to simply having more time to engage in one.
Point 2: That's assuming you can even take the case to court, and didn't sign away any disputes into arbitration.
> Point 2:
I don't think that matters at all; if you have a term in your contract that a court will find unconscionable, an arbitrator is... shall we say, extremely likely to find the same thing.
You're also free to haul the arbitrator into court if they make an egregious ruling. The fact that you were subject to binding arbitration and the arbitrator awarded your firstborn son to the company isn't going to be any more convincing to a judge than the alternative fact that your contract clearly states you're giving up your firstborn son to the company.
I don't think that matters at all; if you have a term in your contract that a court will find unconscionable, an arbitrator is... shall we say, extremely likely to find the same thing.
You're also free to haul the arbitrator into court if they make an egregious ruling. The fact that you were subject to binding arbitration and the arbitrator awarded your firstborn son to the company isn't going to be any more convincing to a judge than the alternative fact that your contract clearly states you're giving up your firstborn son to the company.
> You're probably yourselves vs a professional management company / large property owner.
That actually works against them in court, especially in the particular scenario being discussed.
https://www.law.cornell.edu/wex/adhesion_contract#
That actually works against them in court, especially in the particular scenario being discussed.
https://www.law.cornell.edu/wex/adhesion_contract#
Anyone who says what "US law" is, regarding property rental contracts, is either generalizing or doesn't know what they're talking about. Landlord/tenant law is one thing that varies quite a bit from state to state and it is mostly out of scope of federal law.
And furthermore, it's a common misconception that something is 'legal' to stipulate just because they've seen it in their contracts before. People put unenforceable crap in contracts all the time because 9/10 people will just believe it's enforceable and go along with it.
And furthermore, it's a common misconception that something is 'legal' to stipulate just because they've seen it in their contracts before. People put unenforceable crap in contracts all the time because 9/10 people will just believe it's enforceable and go along with it.
I am an American, I went to American public high school, and not one in a particularly rich town. (So there, people who think American schools are all junk.) I did, however, get a class in basic business law, including contracts, which I think should be mandatory for all high school students, and it would cover precisely this kind of thing.
> I think should be mandatory for all high school students
Notice how anything related to wealth management (contracts, financial concepts and practices, etc) is rarely (if ever) included in compulsory schooling.
This is by design.
Notice how anything related to wealth management (contracts, financial concepts and practices, etc) is rarely (if ever) included in compulsory schooling.
This is by design.
36 states require a civics course, which typically include personal finance topics. It was covered when I was in school decades ago.
https://www.edweek.org/teaching-learning/data-most-states-re...
https://www.edweek.org/teaching-learning/data-most-states-re...
Yes: People think school should be more about learning the "traditional" subjects and get angry when schools deviate.
No, that's because the ruling classes can integrate that knowledge in their own way later on, whereas others cannot. This coupled very well with the original aristocratic pretension that "material" subjects should be considered inferior.
So we ended up with Western education systems that produce intellectuals who conceptually despise wealth management, ensuring education remains thoroughly detached from the actual levers of power. That suits rulers just fine.
So we ended up with Western education systems that produce intellectuals who conceptually despise wealth management, ensuring education remains thoroughly detached from the actual levers of power. That suits rulers just fine.
You have a nice little castle of theory built on air.
The extreme condition you are talking about often will be unenforceable. It doesn't stop people from trying, though.
Generally, contracts on the US where there is one party who writes them and another party who doesn't get to edit them (leases, employment contracts, etc.) have a lot of case law about what can and can't be enforced on the party who doesn't have authorship control. Contacts where both parties are writing them have a lot more freedom to screw a participant, but also generally savvier participants.
Generally, contracts on the US where there is one party who writes them and another party who doesn't get to edit them (leases, employment contracts, etc.) have a lot of case law about what can and can't be enforced on the party who doesn't have authorship control. Contacts where both parties are writing them have a lot more freedom to screw a participant, but also generally savvier participants.
Fair; but my point is more-so, if there was a Page 27 at the end that inserted some unusual terms, it'd be really obvious because it wouldn't look like all the templated stuff before it, and anyone reasonable would catch it. Its also a lot less tiring to read through those preceding 26 pages because its all templated, and you're really just reading the custom notes and checkboxes and such.
I don't feel its unreasonable to read through a dozen or two pages of contracts for something like a rental lease that will eat up 30% of your income for the next year; and I've never felt that my city/state is in dire need of improving the situation. The problem with online service terms is more-so that: they aren't standardized, they all say different things, they oftentimes claim things that aren't legally enforceable, they're usually a UI afterthought... they're just bad. We do need some kind of legislation for those. I don't feel that requiring a summary is the answer.
I don't feel its unreasonable to read through a dozen or two pages of contracts for something like a rental lease that will eat up 30% of your income for the next year; and I've never felt that my city/state is in dire need of improving the situation. The problem with online service terms is more-so that: they aren't standardized, they all say different things, they oftentimes claim things that aren't legally enforceable, they're usually a UI afterthought... they're just bad. We do need some kind of legislation for those. I don't feel that requiring a summary is the answer.
My brother got zinged with this. "You must repaint the house after moving out." He wasn't even there for a year.
He's a good, law abiding fellow, so he did it. It was the last thing he needed to deal with on top of all the stress of moving. I would have just ignored it, let them take me to court if they want.
He's a good, law abiding fellow, so he did it. It was the last thing he needed to deal with on top of all the stress of moving. I would have just ignored it, let them take me to court if they want.
I would have painted everything purple. Including the roof, ceilings, door knobs, everything.
Does the contract stipulate to the satisfaction of the other party? Seems like it's terribly arbitrary if there aren't really specific terms about what paint to use, what color to use, they quality of the surface, etc.
I don't pity anyone that can't be bothered to read their lease before signing. If we can't read 30 page contracts as a society then the contracts are not the problem, we are.
100% of people need housing but well <100% of people can read and fully understand a legal document. Contracts don't bind society, they bind individual people.
And it's not just about being able to read and understand. It's power dynamics. How often are you in a position to negotiate the boilerplate contract that gets put in front of you when you're doing most normal stuff. It's "sign here and here and here, etc", not "read this over and come back with your edits". I negotiate contracts as part of my job, and we go back and forth and make sure parties agreed and understand. As someone else pointed out, such contracts almost certainly should be enforceable, even with unusual terms, because they were expressly co-written and agreed to. An uneditable document drafted by and in favor of one party is not the same thing at all, regardless of the signer's capacity to understand
Yes, this is important, and the law generally considers this, and it will treat B2B contracts differently than B2C contracts which are more frequently one-sided. B2B contracts often have more leeway to be enforceable as-written, but B2C contracts often have explicit limitations in the form of "consumer protection laws" or "tenants rights", etc.
I’m afraid I disagree… 30 pages for mortgage, and then all the terms of service for the software services that you use, plus the credit cards, websites visited and so on… this becomes a full time job for a legally illiterate person and is the definition of “setup to fail”… hence the term “fine print”
I'm as much a fan of caveat emptor as any libertarian, but that doesn't mean we can't make it easier.
Parsing 20+ pages of legalese, when it could be shipped as a diff instead, is simply inefficient.
Parsing 20+ pages of legalese, when it could be shipped as a diff instead, is simply inefficient.
A lot of website privacy policies are just people filling out privacy policy generator sites. They might as well just directly show the boxes checked and fields filled out, instead of the output document.
> Every apartment I've rented (5 in my city) has used the exact same template.
Given the number of different templates floating around tailored to most individual states, that’s either an extreme coincidence, or there is shared ownership, management, or legal representation between the different apartment complexes.
Given the number of different templates floating around tailored to most individual states, that’s either an extreme coincidence, or there is shared ownership, management, or legal representation between the different apartment complexes.
When I lived in Chicago, there was a standard residential apartment lease that to my understanding was written by the city. If you were leasing residential property in the city, you had to use that lease, and you could not change it.
I won't swear that this is correct, or that it still works that way, but that was my impression.
I'm also sure that a lot of people still rented apartments on handshake, unwritten, or under-the-table deals for a variety of reasons.
I won't swear that this is correct, or that it still works that way, but that was my impression.
I'm also sure that a lot of people still rented apartments on handshake, unwritten, or under-the-table deals for a variety of reasons.
I believe Texas is like this as well [1].
https://eforms.com/rental/tx/texas-standard-residential-leas...
https://eforms.com/rental/tx/texas-standard-residential-leas...
More like the opposite of what you asked, but a car park with a traditional pay machine didn't have much in the way of terms and conditions. Now that they have apps, suddenly there are pages and pages. But they managed before, so they should be able to manage now.
I mention this because it's sort of an example of it "having been achieved" in the past, albeit not in the lawmaking sense.
I mention this because it's sort of an example of it "having been achieved" in the past, albeit not in the lawmaking sense.
I am a landlord in France, and from what I've seen, rental contracts are essentially not worth the paper they are written on.
Either what you put in the contract is a law, so it is effective no matter if you write it or not, or it isn't and in this case, there is a high chance it is considered abusive and therefore not legally enforceable. In fact, you might as well not write anything at all! If someone lives on someone's property and pays money in exchange, there is an implicit contract with standard clauses between the two parties. I think the only additional right a written contract can give a landlord is to increase the rent, but by no more than the inflation rate.
Either what you put in the contract is a law, so it is effective no matter if you write it or not, or it isn't and in this case, there is a high chance it is considered abusive and therefore not legally enforceable. In fact, you might as well not write anything at all! If someone lives on someone's property and pays money in exchange, there is an implicit contract with standard clauses between the two parties. I think the only additional right a written contract can give a landlord is to increase the rent, but by no more than the inflation rate.
I don't know if I like that or hate it. Having the simplicity that everything is equal is great. What about pet clauses, garage access, and such? Seems like those would need to be respected.
I'm in Germany not France but Pet Clauses aren't generally valid.
Garage access is only an issue if you pay for it. If you pay for a garage, the landlord has to ensure you have access and depending on the type of contract, ensure you are the only one with access (re; shared vs solo garages).
The Pet Clause thing only concerns big pets. Anything the size of a normal house cat or smaller (except actual house cats and exotic/unusual pets) requires no special permission. If larger pets are banned, this is only valid if there is a contract condition to allow the tenant to get special permission to have a cat or dog. A total and general ban of all pets is considered too disadvantageous for the tenant and thus not allowed. When asking for permission, the denial must have an explanation attached. "Pet can cause damage" isn't allowed for example, since the owner could just buy a pet insurance to cover any claims. Noise and dirt aren't either, since the landlord can require the owner to take care of that. Basically the explanation of why you deny a pet has to be something that the owner doesn't have the power to change easily, such as that the landlord is allergic and living in the flat above you or similar things.
This kinda stuff is usually added at the end of the template contract, there isn'T a lot to read so they tend to be obvious.
Garage access is only an issue if you pay for it. If you pay for a garage, the landlord has to ensure you have access and depending on the type of contract, ensure you are the only one with access (re; shared vs solo garages).
The Pet Clause thing only concerns big pets. Anything the size of a normal house cat or smaller (except actual house cats and exotic/unusual pets) requires no special permission. If larger pets are banned, this is only valid if there is a contract condition to allow the tenant to get special permission to have a cat or dog. A total and general ban of all pets is considered too disadvantageous for the tenant and thus not allowed. When asking for permission, the denial must have an explanation attached. "Pet can cause damage" isn't allowed for example, since the owner could just buy a pet insurance to cover any claims. Noise and dirt aren't either, since the landlord can require the owner to take care of that. Basically the explanation of why you deny a pet has to be something that the owner doesn't have the power to change easily, such as that the landlord is allergic and living in the flat above you or similar things.
This kinda stuff is usually added at the end of the template contract, there isn'T a lot to read so they tend to be obvious.
It is essentially the same in France. Pet clauses are generally invalid, and the tenant is responsible for whatever damage or disturbance the animal may cause.
You never used to need a lease to rent an apartment. Also, purchasing is a form of implied standard contract
[deleted]
Medicare supplement policies. Those are rigidly standardized. Insurers hate that, because all they can do is compete on price.
For me it simply should be forbidden to have any contract like this between consumer and company. All relations should be regulated by law and no exception should be allowed. If you sell a product all warranty and obligations should be regulated. If you sell subscription, you should only be allowed to declare what’s included, price and duration. All else should be in common law.
I also see no sense in reading through these contracts if you’re not a lawyer. You will probably miss or interpret wrongly a sentence or two. And this might be the most critical part of the contract.
Let’s stop this madness that newsletter subscriptions and printer cartridges have a license and you should employ a lawyer to read it. This is all shady business. Let’s focus on building bridges, writing books and growing crops. This is what human being need, not million of law firms, accountants and other useless jobs.
I also see no sense in reading through these contracts if you’re not a lawyer. You will probably miss or interpret wrongly a sentence or two. And this might be the most critical part of the contract.
Let’s stop this madness that newsletter subscriptions and printer cartridges have a license and you should employ a lawyer to read it. This is all shady business. Let’s focus on building bridges, writing books and growing crops. This is what human being need, not million of law firms, accountants and other useless jobs.
I tend to agree.
I grew up in Norway, and now live in the UK, and one of the big shocks to the system on moving to the UK was that in Norway even most employment contracts - contracts which has a very substantial impact on peoples lives -, are often a page or less. Exceptions are very senior staff and sometimes multinationals who don't know better (half the time most of their extra verbiage is null and void due to legal restrictions in employment law). The most complex Norwegian employment contract I had was a couple of pages, mostly just spelling out terms which were covered by the law anyway.
The reason is simple: There are presumed legal defaults for almost everything, such as duration of notice periods (typically 3 months) and other terms, and except for clauses that have little impact on the employee the defaults are good enough that few companies want to go above and beyond, and trying to deviate the other way (offer less than the default; such as e.g. a 1 month notice period) is often difficult, sometimes impossible, and almost always requires consideration that makes it unattractive (before I moved from Norway I'd never once had an employment contract where someone tried to pay me less than 3 months notice, but I had one where they wanted to retain the right to pay me in lieu of notice)
The irony is that while Norway is often seen as complicated for businesses, in this respect things are easy unless you try to make it hard on yourself: You can draft a valid employment contract yourself in less than a page. A well regulated environment can reduce a lot of friction even if the regulated terms are not exactly how you'd like them to be.
But for employment the importance is at least significant enough that you can expect people to read the contract even if it's longer.
For things like subscriptions etc. there's even less reason there can't be reasonable defaults and why you can't make it hard or unattractive to deviate from those defaults, such as by requiring the contract to offer concessions in return.
I grew up in Norway, and now live in the UK, and one of the big shocks to the system on moving to the UK was that in Norway even most employment contracts - contracts which has a very substantial impact on peoples lives -, are often a page or less. Exceptions are very senior staff and sometimes multinationals who don't know better (half the time most of their extra verbiage is null and void due to legal restrictions in employment law). The most complex Norwegian employment contract I had was a couple of pages, mostly just spelling out terms which were covered by the law anyway.
The reason is simple: There are presumed legal defaults for almost everything, such as duration of notice periods (typically 3 months) and other terms, and except for clauses that have little impact on the employee the defaults are good enough that few companies want to go above and beyond, and trying to deviate the other way (offer less than the default; such as e.g. a 1 month notice period) is often difficult, sometimes impossible, and almost always requires consideration that makes it unattractive (before I moved from Norway I'd never once had an employment contract where someone tried to pay me less than 3 months notice, but I had one where they wanted to retain the right to pay me in lieu of notice)
The irony is that while Norway is often seen as complicated for businesses, in this respect things are easy unless you try to make it hard on yourself: You can draft a valid employment contract yourself in less than a page. A well regulated environment can reduce a lot of friction even if the regulated terms are not exactly how you'd like them to be.
But for employment the importance is at least significant enough that you can expect people to read the contract even if it's longer.
For things like subscriptions etc. there's even less reason there can't be reasonable defaults and why you can't make it hard or unattractive to deviate from those defaults, such as by requiring the contract to offer concessions in return.
Reminds of the time when I was handed a 12 page NDA to sign for a six month consulting contract. I did my best to explain, in a nice and non-confrontational manner, just how difficult it was to even begin to consider such a beast. I would have to spend a thousand dollars with an attorney to have something like that deciphered and even more to reply to it with edits, etc.
That's what TOS feel like today. Even if you did read them, you probably need an attorney to fully comprehend what you are accepting. The agreement was created by one or more attorneys, sometimes a highly paid law-firm. The asymmetry in legal knowledge between reader and author is massive.
Perhaps the metric should be that an agreement should not require an attorney for interpretation by, say, the average high school graduate.
Hey, maybe that's a way to improve our system of education! Can you imagine what an agreement would look like if that was the metric?
That's what TOS feel like today. Even if you did read them, you probably need an attorney to fully comprehend what you are accepting. The agreement was created by one or more attorneys, sometimes a highly paid law-firm. The asymmetry in legal knowledge between reader and author is massive.
Perhaps the metric should be that an agreement should not require an attorney for interpretation by, say, the average high school graduate.
Hey, maybe that's a way to improve our system of education! Can you imagine what an agreement would look like if that was the metric?
Why don’t lawmakers pass a law enacting two or three sets of terms of service that companies can choose from, or a set of a la carte terms. E.g. “who owns user data” could be “we do” or “the user does but licenses it to us” or “the user does”. Etc.
With home purchases (for example), the terms are usually standard in the state. Why the heck does every single web site need its own terms?
With home purchases (for example), the terms are usually standard in the state. Why the heck does every single web site need its own terms?
When I purchased my house, we used the standard form...with half the paragraphs crossed out and about five pages of riders attached. I guess it gives a good starting place for the negotiation, but it sure felt silly.
sorry, doesn't work... having been on the other side a number of times, different services really do need different terms.
also, residential real estate ain't the example you want to use! True, 99% of it is standard, but every freestanding home differs substantially in: - what's included/excluded, e.g. furniture - seller disclosures including the history of maintenance, special needs, etc. - title search and property maps - environmental issues (soil, etc) - hyperlocal regulations affecting that property, incl HOA rules (apartments are simpler but then HOA rules are more complex)
what might work is to start with a gigantic-but-standard ToS, and then the per-service ToS is just the diffs and additions. Many legal docs use this method, including residential real estate.
also, residential real estate ain't the example you want to use! True, 99% of it is standard, but every freestanding home differs substantially in: - what's included/excluded, e.g. furniture - seller disclosures including the history of maintenance, special needs, etc. - title search and property maps - environmental issues (soil, etc) - hyperlocal regulations affecting that property, incl HOA rules (apartments are simpler but then HOA rules are more complex)
what might work is to start with a gigantic-but-standard ToS, and then the per-service ToS is just the diffs and additions. Many legal docs use this method, including residential real estate.
From the Bill Text, services must include:
> (E) Historical versions of the terms of service and change logs.
This alone is a big improvement.
https://trahan.house.gov/uploadedfiles/tldr_act.pdf
Edit: adds link
> (E) Historical versions of the terms of service and change logs.
This alone is a big improvement.
https://trahan.house.gov/uploadedfiles/tldr_act.pdf
Edit: adds link
Have terms of service ever rigorously been tested in court? My daughter created an Uber account for me, and she agreed to the terms of service, not me. Despite having no contractual relationship with me, Uber continues to render services. I wonder what would happen if we were to get into a contractual dispute.
Interesting...
What if, instead of signing up for a service myself, I paid my neighbor's 11-year-old kid a few Christmas cookies to sign me up, while I washed my car? Neither I, nor any legal adult, was around when she was skipping past the legal junk, or clicking "I agree" when required.
What if, instead of signing up for a service myself, I paid my neighbor's 11-year-old kid a few Christmas cookies to sign me up, while I washed my car? Neither I, nor any legal adult, was around when she was skipping past the legal junk, or clicking "I agree" when required.
What if I use developer tools to edit the contract before I click "Accept"? I doubt there is a single website in the world that takes whatever text is displayed and saves that for each individual account. I could print out a copy before I click accpet so that there would be a record of it, if I went to court. Is it a contract if I don't sign it, but merely click accept, and if they don't sign it either and then provide a copy with both signatures?
Why don't we have standard examples for terms of service, privacy policy, etc, in the same way we already do for licenses? I understand that more flexibility might be necessary, so maybe a ToS could be composed of standard modules, which would be much easier to digest.
There should be reasonable standard terms for widely used contracts. Unit transfer of ownership / sale, rental of the same, etc.
The standard contract should reference that current framework of agreement, and fill in only the variables that matter, possibly with an appendix of penalty fees if applicable. (E.G. like https://www.gsa.gov/travel/plan-book/per-diem-rates has a cost metric for meals and room rates for each given area; notably this list of fees MUST be from a 3rd party or government source. It must be common use.)
A list of expected payments (quantity and date), transfer events, etc, as well as a summary for anything remotely complex. It should nominally fit on one single sheet of standard paper (letter or A4).
An itemized bill of incidentals E.G. for room charges / etc would be a different type of expense, that would be an add on of additional services.
The standard contract should reference that current framework of agreement, and fill in only the variables that matter, possibly with an appendix of penalty fees if applicable. (E.G. like https://www.gsa.gov/travel/plan-book/per-diem-rates has a cost metric for meals and room rates for each given area; notably this list of fees MUST be from a 3rd party or government source. It must be common use.)
A list of expected payments (quantity and date), transfer events, etc, as well as a summary for anything remotely complex. It should nominally fit on one single sheet of standard paper (letter or A4).
An itemized bill of incidentals E.G. for room charges / etc would be a different type of expense, that would be an add on of additional services.
At the very least, it would be nice to have an easy-to-consume standard high-level infographic. Take the "Nutritional Information" table that's been standardized on the side of most American foodstuffs. If we could get Terms of Service with a table at the top with the most important info standardized, it would go a long way.
This is coming for IoT "cybersecurity", e.g. routers.
The European Union has this for a few years now for electronic communications service providers, and it works well!
https://digital-strategy.ec.europa.eu/en/faqs/contract-summa...
https://digital-strategy.ec.europa.eu/en/faqs/contract-summa...
Had Napoleon remained alive long enough, he might have added that 'America is a nation of lawyers.' This proposal is laudable enough on its face, but imo the US legal system is unlikely to rule against the very complexity and nuance that generate so many economic rents.
I really hope they work with a technical body on this so that we avoid repeating the same horrible "what cookies do you accept/not accept/maybe accept/accept because you didn't click customize/..." nonsense we see everywhere today.
As a consumer, I would really like to see something like this bill. I would also like there to be a standard by which I can say to my browser, "I don't want to be bothered by any site who only wants to X,Y,Z" and then be prompted only when the site wants more than that. This requires cooperation between a standards body and the legislation being produced and would be an actually huge win for the cognitive load of the consumer.
As a consumer, I would really like to see something like this bill. I would also like there to be a standard by which I can say to my browser, "I don't want to be bothered by any site who only wants to X,Y,Z" and then be prompted only when the site wants more than that. This requires cooperation between a standards body and the legislation being produced and would be an actually huge win for the cognitive load of the consumer.
>I really hope they work with a technical body on this so that we avoid repeating the same horrible "what cookies do you accept/not accept/maybe accept/accept because you didn't click customize/..." nonsense we see everywhere today.
Those shitty cookie/GDPR prompts aren't actually compliant with the law. They need to either A) give an explicit single-click opt-out, or B) opt-out by default. If the pop-up requires you to click "customize" then untick a list of ticked-things then click "accept", that violates the GDPR and the fault lies with the company who is breaking the law, not with the law itself.
Those shitty cookie/GDPR prompts aren't actually compliant with the law. They need to either A) give an explicit single-click opt-out, or B) opt-out by default. If the pop-up requires you to click "customize" then untick a list of ticked-things then click "accept", that violates the GDPR and the fault lies with the company who is breaking the law, not with the law itself.
Yet another reason to push for a standard mechanism that browsers might natively support rather than allow each and every website to implement their own solution.
[deleted]
Instead, realise that the "average person" does not have capacity to
consent to terms and conditions of technical services - even if they
were written in the simplest possible summary.
Relevant, and a good read (Nov 3 I Fought the Paypal):
https://news.ycombinator.com/item?id=33462658
> "Virtually every modern-day service comes with a gargantuan boilerplate contract that governs everything from privacy policy and liability indemnification to which one of your children you agree to sacrifice. Since you are reading this online, you have likely hit AGREE on hundreds of these without reading a word of them..."
https://news.ycombinator.com/item?id=33462658
> "Virtually every modern-day service comes with a gargantuan boilerplate contract that governs everything from privacy policy and liability indemnification to which one of your children you agree to sacrifice. Since you are reading this online, you have likely hit AGREE on hundreds of these without reading a word of them..."
In the meantime, there's this website that summarizes & rates ToS:
https://tosdr.org/en/frontpage
https://tosdr.org/en/frontpage
https://archive.ph/CVhku
Article is from January 2022, does not seem to have any recent updates.
Article is from January 2022, does not seem to have any recent updates.
As someone who is writing I can understand why nobody reads them. If you actually read them you will find out company is not responsible for anything and can do whatever they want with your data, so it's kinda pointless to read them since your options to fight the company are basically non-existent besides the very basixc rights like right to erasure, data portability etc.
It doesn't matter what the intention is to begin with. None of these will ever happen. It will never be approved and even if it does, it will be extremely watered down and more or less be like what it is today. 90% of the politicians exists to not let things happen. Some times it's good but mostly it's bad.
This cynicism is justified, but maybe if we weren't so quick to dismiss good things they'd happen more often.
I get the overall sentiment and agree with it. However, politicians themselves don't listen to praises or criticism for the most part. Once they are elected, they don't have to work on making things better for their constituents. It's much easier to find a boogeyman or an issue to rouse the mob than do things. That is what our politics have become. Anything good needs years of cajoling and convincing to do and unfortunately the lingering positives for the politicians who did that will be quickly overpowered by a negative sentiment/boogeyman issue. The way things are at this point, only negatives have rentention power and we stopped dealing with positives anymore.
That's true, but I just think it doesn't have to be that way. The only thing politicians care about more than money is being re-elected, so perhaps if more people took note of the good, populace-serving things that politicians at least supported and made it a point to say that that's the cause of their vote, then maybe politicians would be more inspired to do similar things. As soon as people begin to discount good actions as flukes and uplift negatives as the reason why they aren't voting for someone, both sides get jaded very quickly and lose sight of their purpose.
Voters exist to reinforce positive behaviors in politicians, and politicians exist to exhibit those positive behaviors. You can't teach someone with punishment alone.
Voters exist to reinforce positive behaviors in politicians, and politicians exist to exhibit those positive behaviors. You can't teach someone with punishment alone.
End all contracts of adhesion.
There's little point to reading ToS unless you are an attorney with experience in contract law. If you just assume the terms are "you have no rights, and you will be spied on with impunity" you'll be right far more often than not anyway.
That's great if you're in California, but even there, it only addresses privacy, not the problem with interpreting contracts.
All US states are actually California, just like all countries are actually America. No company has enough time to give extra rights to only Californians and Europeans.
This is both defeatist and wrong.
It's not wrong with ToSes that I have read, but I don't claim to have read them all. Defeatist? Perhaps. But if my experience shows a strong pattern, I'd be a fool to ignore that.
I mostly agree. Also, the terms can often be changed at any time, sometimes without any notice what-so-over. So what's the point?!
Didn’t someone introduce a law a few years ago to require laws to be short enough to be easily readable and/or not voted on before there is a reasonable enough time in which to allow the law to be read/reviewed?
semi-related, the case law on intent to contract in click-wrap is all over the place
if you read ericgoldman's blog, you already know this, but various factors affect whether a contract is considered formed, including:
(I'm not a lawyer)
if you read ericgoldman's blog, you already know this, but various factors affect whether a contract is considered formed, including:
- whether the 'agree' text appears on the user's screen
- the text of the button ('continue' vs 'agree')
- whether the tos link is before or after the button
(I'm not a lawyer)
Looks like this bill was referred to the senate commerce committee in January 2022 (https://www.congress.gov/bill/117th-congress/senate-bill/350...), and hasn't moved from there since. Doesn't seem likely to become law anytime soon.
The un readability of it was the point.
This will only have meaningful enforcement on countries which already defend their citizens from corporations.
This will only have meaningful enforcement on countries which already defend their citizens from corporations.
In the end, even if companies made their deceptive/evil practices abundantly clear, I'm not sure it would stop many people. If Microsoft told people setting up Windows 11 that every ounce of profitable data will be used against them, most people would still accept it because the alternatives are less convenient.
Hopefully a gpt based summarizer of the t&c and point out to any nuanced items in there
The problem with ToS is not that they are long, it's invariably that they are nonsense.
I don't care what the terms of service are for 99.9% of the things that I do. You don't want me to download your videos? Ok, don't care.
I don't care what the terms of service are for 99.9% of the things that I do. You don't want me to download your videos? Ok, don't care.
I do read terms of services and agreements and they usually contain things I don't want to agree to but have little choice so I just hope they won't really affect me.
The solution to complex legalistic language is . . . more laws adding to the complexity?
Somehow I think this is trying to solve a symptom rather than a problem.
Somehow I think this is trying to solve a symptom rather than a problem.
“We will do anything we want and we will collect all data” - every site’s tl;dr if this passes.
The current model of civil law doesn't seem like it's designed to serve the public any more. It feels like we're trying to preserve some very quaint 1700s ideas of how business is negotiated. The idea of "here's a meeting of more or less equals who are free to negotiate with minimal state interference" might have made sense in an era when the largest business entity would be an estate/plantation/farm/factory with a few dozen workers.
We have far too many contracts which are presented in scenarios with huge asymmetry of parties-- both in terms of "how much flexibility they have to negotiate and back out" and "how much legal knowledge and resources they can marshal to get a good deal." There's a subtle difference between the armies of lawyers negotiating the Microsoft-Activision deal and a bank presenting a 15-screen-long account agreement written well above the average reading level as a fait accompli, but I'm not sure I can quite put my finger on it.
There's also the matter of rework and iteration power. A typical human might open 10 or 20 bank accounts, for example, in their lifetime, but a bank will go through tens of thousands every year. This gives them both the opportunity and incentive to be constantly re-iterating and optimizing their strategy, allowing toxic terms to spread wildly from industry to industry. Remember when arbitration or anti-class-action clauses were rare and exotic?
These factors mean that well-lawyered, rich parties are usually in a position to ask for the moon. Most people won't balk, and they can start asking for Phobos, Deimos and Ganymede in the next few years. This might be a viable negotiating tactic, except that an important balancing factor is missing. We can hardly rely on the courts to help prevent abuse. A wealthy party can use the threat of a suit as a bludgeon-- "finish this disputed obligation or we'll sue; even if you win it's gonna cost you ten years and $300k to get your way", but many people can't afford to effectively use the courts to challenge toxic, socially destructive, misleading, or illegal contract terms. If there isn't big money in there, you're not going to get help on contingency. Class-action suits (when they're allowed) are a limited remedy-- they rarely end with a strong "nobody do this anymore" precedent or establishment of wrongdoing; they just serve as a "no wrongdoing was admitted" settlement, effectively liquidating your grievance in terms of dollars.
I'd love to see all permissible contracts be published in Mad Lib format in a standard government document. Nothing else is valid, no matter what story you can craft of "meeting of the minds." This would massively streamline the legal practice-- there'd rapidly be very little new under the sun to argue, so the case law could be documented and explained at a level lay people could understand.
This would also make for a huge opportunity for oversight-- if someone wants a new clause to be added to the Standard Contract Book, it has to go through a review and comment process, which could easily become a public shaming moment: Why is company XYZ trying to introduce an anti-disparagement clause in the standard employment contract? What do they want to block and hide.
We have far too many contracts which are presented in scenarios with huge asymmetry of parties-- both in terms of "how much flexibility they have to negotiate and back out" and "how much legal knowledge and resources they can marshal to get a good deal." There's a subtle difference between the armies of lawyers negotiating the Microsoft-Activision deal and a bank presenting a 15-screen-long account agreement written well above the average reading level as a fait accompli, but I'm not sure I can quite put my finger on it.
There's also the matter of rework and iteration power. A typical human might open 10 or 20 bank accounts, for example, in their lifetime, but a bank will go through tens of thousands every year. This gives them both the opportunity and incentive to be constantly re-iterating and optimizing their strategy, allowing toxic terms to spread wildly from industry to industry. Remember when arbitration or anti-class-action clauses were rare and exotic?
These factors mean that well-lawyered, rich parties are usually in a position to ask for the moon. Most people won't balk, and they can start asking for Phobos, Deimos and Ganymede in the next few years. This might be a viable negotiating tactic, except that an important balancing factor is missing. We can hardly rely on the courts to help prevent abuse. A wealthy party can use the threat of a suit as a bludgeon-- "finish this disputed obligation or we'll sue; even if you win it's gonna cost you ten years and $300k to get your way", but many people can't afford to effectively use the courts to challenge toxic, socially destructive, misleading, or illegal contract terms. If there isn't big money in there, you're not going to get help on contingency. Class-action suits (when they're allowed) are a limited remedy-- they rarely end with a strong "nobody do this anymore" precedent or establishment of wrongdoing; they just serve as a "no wrongdoing was admitted" settlement, effectively liquidating your grievance in terms of dollars.
I'd love to see all permissible contracts be published in Mad Lib format in a standard government document. Nothing else is valid, no matter what story you can craft of "meeting of the minds." This would massively streamline the legal practice-- there'd rapidly be very little new under the sun to argue, so the case law could be documented and explained at a level lay people could understand.
This would also make for a huge opportunity for oversight-- if someone wants a new clause to be added to the Standard Contract Book, it has to go through a review and comment process, which could easily become a public shaming moment: Why is company XYZ trying to introduce an anti-disparagement clause in the standard employment contract? What do they want to block and hide.
While you’re at it please abolish the massive tags that seem to be attached to all clothing. I’m sure tons of legalese is clogging landfills and enriching some of our most ambitious legal scholars.
> Terms-of-service Labeling, Design, and Readability Act
I notice a lot of puns and memes make their way into act names in the US. I never imagined they'd take an ancient internet meme (tl;dr) and come up with an official sounding wording for it.
I notice a lot of puns and memes make their way into act names in the US. I never imagined they'd take an ancient internet meme (tl;dr) and come up with an official sounding wording for it.
It’d be a lot easier to make lawmakers and lawyers illegal
> No one reads the terms of service. Lawmakers want to fix that with 'TLDR' bill
Also and ironically, many bills aren't read by lawmakers. Maybe they're sympathetic.
Also and ironically, many bills aren't read by lawmakers. Maybe they're sympathetic.
Perhaps legislators should put their own house in order first. Have they considered how an ever-growing corpus of laws and policies and guidelines and regulations places an enormous burden on corporations and ordinary citizens? "Ignorance of the law is no excuse" but it would take many lifetimes for any of us to study all laws that apply to us, much less to understand them!
If legislators wish to ease compliance, enforcement, and awareness, they will winnow down this corpus on an annual basis by removing, deleting, merging, and summarizing.
If legislators wish to ease compliance, enforcement, and awareness, they will winnow down this corpus on an annual basis by removing, deleting, merging, and summarizing.
Corporations are regulation.
Germany has an explicit rule like that (§ 305c BGB): terms that are so unusual that the counterparty didn't have to expect them are null and void, and any ambiguities are interpreted against the side using reusable T&C's. Terms are further invalid (§ 307 BGB) if they unfairly disadvantage the other party against good faith etc.
The real meat starts in 308 and following, explicitly banning many terms - for example arbitration requirements (309 item 14).