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Worst Terms of Service Ever
Posted by James Grimmelmann on Thursday, February 05 @ 19:01:55 EST Contracts
I don't know who found it first, but I just had forwarded to me what has to be the most ambitious web site user agreement of all time, from the home page of the Central Pacific Railroad Photographic History Museum. "Ridiculously overreaching" doesn't even begin to describe it.

The legalese is an astonishing 21,000 words long, and gives every sign of having been professionally drafted by a competent lawyer with severe OCD. It's not quite that any individual term is clearly insane as that the redundancy makes the whole much less than the sum of its parts. We've been cracking each other up by reading selections aloud. Some highlights inside:

"All other access, use, disclosure, reproduction, delayed use, reduction to human-perceivable form, printing, copying or saving of digital image files or other content, reformatting, file sharing, downloading, uploading, storing, posting, mirroring, archiving, recording, distributing, redistribution, repurposing, modification, rewriting, manipulation, creation of derivative works, translations, or products, licensing, sale, transfer, display, public performance, publicity, broadcast, televising, reporting, publication (in whole or part) or transmission whether by http, ftp, electronic mail or any other file transfer protocol, and whether by electronic means or otherwise, or use by other than individual scholars, or commercial use requires prior written permission of the rights owner(s) and payment of a fee, and severe penalties apply for theft and unauthorized publication, which is also a crime."
"You agree that your use of this website is irrefutable acknowledgment by you that you have read, understood, and agreed to each and every term and provision of this User Agreement . . . ." (emphasis added).
"You stipulate, warrant and agree that you will not . . . challenge or dispute validity of our copyright."
"The application of the United Nations Convention on the International Sale of Goods is expressly excluded."
"You are warned that computer viruses can be transmitted via e-mail, so the recipient of any e-mail should check it and any attachments for the presence of viruses."
"[Y]ou should print a paper copy of this User Agreement . . . ."
"Time is of the essence hereof."
"If you want permission, we sincerely hope that you don't get scared off by all this legalese and give up!"
"Telephone calls placed in disregard of the foregoing will be charged at two hundred fifty dollars per telephone call."
"Licensee acknowledges that 19th century images such as 3 1/2" stereograph albumen prints are of limited resolution and are generally degraded, containing various imperfections of image and mount due to aging, and damaged, including but not limited to foxing, spotting, chipping, cracking, abrasion, folding, tearing, gouging, emulsion loss, soiling, staining, glue streaking, discoloration, motion blurring, darkening, and fading (often uneven in degree over various parts of an image), and acknowledges that images rescanned or photoduplicated from the original as a result of its request may require additional processing or restoration."
"Additionally, in the event that your actions in violation of this User Agreement result in our being deprived of our exclusive rights . . . you agree to pay us liquidated damages in the amount of five million U.S. dollars . . . ."
"Please read this Legal Notice of Infringement which applies to you only if you have violated this User Agreement, or made any use of this website in any way not specifically authorized and permitted herein, in which case you acknowledge timely receipt hereof, which you agree is sufficient notice, at such time as you commenced violation of this User Agreement."
"You further assume the risk that certain historic subjects, accidents, attitudes, and stereotypes and descriptions or depictions thereof, some graphic, may prove to be disturbing and that warnings and rating filters relating to such content may be absent or ineffective."
"Access to or use of this website in any jurisdiction that does not allow the exclusion of implied warranties is strictly prohibited."
"You agree to immediately notify CPRR.org by e-mail of any errors, historical inaccuracies, technical problems, typographical errors, broken links, incorrect or missing citations, proprietary content included without required permission, or any other defects or deficiencies which you discover on this website . . . ."
"Force Majeuere: Additionally, in not in limitation of the forgoing, we shall not have liability for any failure or delay resulting from any condition beyond our reasonable control, including but not limited to illness, governmental action, or acts of terrorism, earthquake or other natural occurrences, labor conditions, or power failure."
The parties hereto agree and stipulate . . . that such images are not in the public domain, that this website is a compilation posessing originality with new material added, and that copyright law does not preempt contract law."
"In the event that you are a governmental entity, you waive sovereign immunity and further stipulate and agree that any use of this website or its content, except as permitted herein, shall consitute a taking requiring just compensation as set forth herein."

Post your favorite gems in the comments section.

UPDATED Feb 9, 12:25 AM: CPRR has posted a reply, which provides some essential context. I'm working on a reply-to-the-reply. This story has also been Slashdotted: the discussion in the comments there is remarkably good.

UPDATED Feb 9, 1:25 PM: I've posted my reply to CPRR and to the general discussion here and at Slashdot.

 
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Re: Worst Terms of Service Ever (Score: 0)
by Anonymous on Wednesday, February 11 @ 19:08:30 EST
Try this one on for size: http://cooleats.com/Pages/eula.htm

Point one: the site owner seems completely serious.

Point two: is the site worth it?


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Re: Worst Terms of Service Ever (Score: 0)
by Anonymous on Friday, February 13 @ 10:16:51 EST
Check out the message that pops up when you attempt to right click on the agreement.


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Re: Worst Terms of Service Ever (Score: 0)
by Anonymous on Thursday, February 05 @ 19:49:09 EST

Please pay close attention to what is written on this page:

No stereographs were harmed in the making of this website.


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Re: Worst Terms of Service Ever (Score: 0)
by Anonymous on Thursday, February 05 @ 23:32:00 EST
It seems slightly schizoid as well. (Telltale signs: very long paragraphs, redundancy, excess capitalization, extremely long and unreadable. But it is lacking paranoia or other craziness.)


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Re: Worst Terms of Service Ever (Score: 0)
by Anonymous on Thursday, February 05 @ 23:50:57 EST
That's hilarious, considering the content on their page dates back to the 1860s and is way out of copyright, it's in the public domain.
This is an old strategy, used by museums and image archives like Bill Gates' Corbis. The original work is ancient and in the public domain. But since they have the only original work in existence, i.e. a painting, they can control access so nobody can photograph or reproduce it without their cooperation. So the only reproduction is a modern photograph, which CAN be copyrighted. That's how NHK got the copyright to the Sistine Chapel Ceiling.


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Re: Worst Terms of Service Ever (Score: 1)
by Charodon on Thursday, February 05 @ 23:52:03 EST
(User Info | Send a Message)
I don't think this was written by a lawyer. Non-lawyers tend to have an extremely formalistic view of the law, and tend not to realize the value of phrases like "including but not limited to."


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Re: Worst Terms of Service Ever (Score: 0)
by Anonymous on Friday, February 06 @ 00:15:04 EST
My favorite is the "Click any image or link to accept user agreement" notice.


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Re: Worst Terms of Service Ever (Score: 1)
by bobmatnyc on Friday, February 06 @ 00:36:00 EST
(User Info | Send a Message)
Hilarious. But I notice that one must 'Click on any link or image to indicate "I ACCEPT" the USER Agreement.'. Does that mean that:
  • All of the images on the home page are up for grabs, and
  • I can simply type or copy and past a deep link from the source of the site, and am no longer bound by this agreement?
Given the fairly chaotic nature of the site, I almost tend to feel that the agreement is bit tounge in cheek... --b


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Re: Worst Terms of Service Ever (Score: 0)
by Anonymous on Friday, February 06 @ 02:34:47 EST
It looks like a parody that was intended to illustrate the absurdity of EULA's and copyright law.


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Re: Worst Terms of Service Ever (Score: 0)
by Anonymous on Friday, February 06 @ 06:34:48 EST
This amazing document actually says at the end "The author of this publication is CPRR.org, a pseudonym.  The author, an individual scholar who is not a Counsellor at Law, asserts moral rights". The links at its top strongly suggest it's a spoof- if so I have to say as a practising UK lawyer i think it's a pretty good one.

My favourites:
"Please read this Legal Notice of Infringement which applies to you only if you have violated this User Agreement…"
… and the novel definition of originality which begins "ORIGINALITY: You acknowledge, agree, and stipulate that image restoration and enhancement demonstrated on each of the images shown on this website, constitutes originality, is a substantial variation that is not an inevitable result of the digital medium of reproduction, and does not consist merely of making an accurate, faithful, slavish, or mechanical reproduction of a degraded historic photograph, map, or document with absolute fidelity, but – to the contrary – such creative artistry consists of, but is not limited to…"


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Maybe we should get a lawyer... (Score: 0)
by Anonymous on Friday, February 06 @ 09:02:44 EST
"You agree to immediately notify CPRR.org by e-mail of any errors, historical inaccuracies, technical problems... or any other defects or deficiencies which you discover on this website . . . ."
Does this mean we can be sued if we all don't email them and let them know their TOS needs to be sent to an asylum?


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Re: Worst Terms of Service Ever (Score: 0)
by Anonymous on Friday, February 06 @ 14:03:00 EST
did ya notice that the VERY FIRST link on the page went to "Lawyer Joke Emporium"- http://www.nolo.com/humor/jokes.cfm
??


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Re: Worst Terms of Service Ever (Score: 0)
by Anonymous on Friday, February 06 @ 15:57:25 EST
I vote for this bit:

"In the event that you disagree with the content, opinions, or policies of this website or its author(s), your sole and exclusive remedy shall be to notify us by e-mail"


because you just violated it by publicly disagreeing with them.

Joe Grossberg
http://www.joegrossberg.com [www.joegrossberg.com]


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Re: Reply from the CPRR Museum (Score: 0)
by Anonymous on Saturday, February 07 @ 16:08:43 EST
See the CPRR Museum's reply.


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probably not a joke... (Score: 0)
by Anonymous on Saturday, February 07 @ 20:21:24 EST
If I can't tell if something is a joke or not, I've learned it's better to assume it isn't...


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another funny quote (Score: 0)
by Anonymous on Saturday, February 07 @ 20:30:46 EST
From the response to this very page: The comment suggesting that we do not realize the value of phrases like "including but not limited to" seems rather silly as that construction is used 41 times in the user agreement.


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Re: Worst Terms of Service Ever (Score: 0)
by Anonymous on Saturday, February 07 @ 20:42:13 EST
I seriously doubt that this is a joke. I agree that the poor soul responsible from this site suffers from some sort of OCD or OCD-like disorder.

A quick glance at the other pages reveals the level of effort put into this site, the rambling, the over-categorization, the ultra-precise answers and the overall number of words on the site. This person needs counselling. I hope the attention garnered from being slashdotted doesn't overwhelm them.


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Re: Worst Terms of Service Ever (Score: 0)
by Anonymous on Saturday, February 07 @ 20:52:17 EST
Have you all lost your sense of humor? Good lord.


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Post the lawyer's name (Score: 0)
by Anonymous on Saturday, February 07 @ 21:04:42 EST
Get the name of the lawyer who wrote it, and the name of the law firm, and then post the names.


Ridicule shouldn't be limited to the document itself, but should also cover the author and those who chose to employ him.


Shouldn't be too difficult. Tell the museum you have a problem with the terms of service, and want to talk to their lawyer about it. That should result in the immediate supply of the number. They'd probably be more curious than you to see what the result of questions about such a ridiculous document would be.


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Re: Worst Terms of Service Ever (Score: 0)
by Anonymous on Saturday, February 07 @ 21:49:15 EST
Here's my favorite:

"You agree not to take any action that will impose a disproportionately large or unreasonable load on our computer web server(s), network, or other infrastructure. Please be mindful of the large amounts of data transfer needed to allow viewing of the CPRR Museum web pages with multiple, large images, and avoid suddenly flooding the CPRR Museum website with large numbers of unanticipated visitors. Suddenly increased, excess web traffic on this website as a result of your actions, including but not limited to publicity, reporting, or recommendations to others regarding this website on network television or radio or national publications or media, of more than one gigabyte of additional Internet data transfer per month, shall be at your expense, and you agree to reimburse CPRR.org for the resulting costs at
the rate of the then prevailing additional data transfer charge made by the Internet provider(s) hosting this website."


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Re: Worst Terms of Service Ever (Score: 0)
by Anonymous on Saturday, February 07 @ 23:33:02 EST
File -> save as...

works great.


:-)



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Re: Worst Terms of Service Ever (Score: 0)
by Anonymous on Saturday, February 07 @ 23:33:44 EST
"You agree to pay us three thousand dollars per unsolicited e-mail sent or telephone call and fifteen thousand dollars per e-mail address added to your commercial mailing list in violation of the foregoing, plus damages. "

- this is just simply...... well, amazing. i sincerely hope this is a joke.


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Re: Worst Terms of Service Ever (Score: 0)
by Anonymous on Saturday, February 07 @ 23:41:49 EST
This should speak for itself:

"By submitting your request for permission or permissions inquiry, you are obligating yourself and your organization(s), if any, to license, immediately pay for, and to actually make use of the image(s) or other content requested in the manner as set forth in your application, should permission be granted. If you don't want to buy a license, don't e-mail us about permissions — it's that simple!"


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Re: Worst Terms of Service Ever (Score: 0)
by Anonymous on Sunday, February 08 @ 00:04:40 EST
I have to say that that is indeed a ludicrous agreement especially considering that the pictures in themselves as are presented (in resolution) are not worth a whole lot even if the images were not public domain.


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Re: Worst Terms of Service Ever (Score: 0)
by Anonymous on Sunday, February 08 @ 00:27:41 EST
Interesting since they clearly have "lifted" legal verbage verbatum and pasted it into the big blob. Guess what? Terms of service and copyright notices are themselves "under copyright" and this site has infringed on them!


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Re: Worst Terms of Service Ever (Score: 0)
by Anonymous on Sunday, February 08 @ 01:41:54 EST
http://www.cprr.org/Museum/Rants.html:
"If you find an error and fail to report it to us so that it can be corrected, then the misteak becomes your fault."

For a moment, I took them seriously. My misteak...


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Re: Worst Terms of Service Ever (Score: 0)
by Anonymous on Sunday, February 08 @ 02:33:28 EST
By clicking a link, you accept the terms of the agreement. But, to view the agreement, you need to click the link to the page with the agreement. So, we are forced to accept it without reading it.

What if I type the URL of the images or other pages in the location bar instead of clicking on the hyperlinks?


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Re: Worst Terms of Service Ever (Score: 0)
by Anonymous on Sunday, February 08 @ 03:05:59 EST
I don't think that this is a joke. I originally thought that it was, and was thinking "wow, these people really need to lighten up and see this foolishness for what it is", but if you skim over it, there are a decent amount of places where they come in apologize for the formality, clarify things, prarphase things... They really do seem to be trying to justify it waaayy too much for it to be a joke. I think that they are just crazy. Honestly, if you have ever spent a decent amout of time in a library with large rare collections, museums, or archives, this level of compulsiveness really isn't unbelievable.


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the reply (Score: 0)
by Anonymous on Sunday, February 08 @ 04:26:11 EST
http://cprr.org/Museum/Rants.html

"Reply to the Yale Law Blog (highly critical of our functional parody, yet displaying a surprising lack of awareness of recent court decisions, providing no counterexample, not a single constructive suggestion, nor an offer to help)"

ouch!



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Re: Worst Terms of Service Ever (Score: 0)
by Anonymous on Sunday, February 08 @ 10:06:39 EST
I would say that this site is both trying to comply with the current copyright laws, as well as trying to show others how ludicrous the laws on copyright actually are. I followed the link entitled 'ridiculous' roughly one screen down the list and it linked to an article about how ridiculous the laws are. It makes for a good laugh:

http://www.legalaffairs.org/issues/July-August-2003/feature_zittrain_julaug03.html


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I've got two recommendations to help them... (Score: 0)
by Anonymous on Sunday, February 08 @ 13:33:10 EST
  1. To view the contract, one has to click a link to view it, thus accepting it without knowing the contents. I'm pretty sure that isn't a legally binding acknowledgement. The only way to protect the entire content of the site is to have the contract viewed and agreed to prior to entering it.
  2. Obsessive-Compulsive Foundation - Support Groups: http://www.ocfoundation.org/ocf1170d.htm


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Re: Worst Terms of Service Ever (Score: 0)
by Anonymous on Sunday, February 08 @ 13:41:44 EST
So... has Roget's Thesaurus tried to sue yet for copyright infringement?


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Re: Worst Terms of Service Ever (Score: 0)
by Anonymous on Monday, February 09 @ 19:51:23 EST
I just came across something else that is very, very interesting:

These "nice people who like old photographs of trains and want to share them" registered their domain name through an anonymous registration service. That seems remarkably suspicious to me.

Put that together with an "agreement" that charges a hundred dollars per email if you inquire about usage permissions, that tries to demand thousands of dollars if you call them, and God only knows what else. Seems to me like they're taking a shotgun approach here: If they throw enough "terms" in the air, a few of them will hit and they'll be able to sue someone, anyone.

They don't pay anything for this, after all ... all the images are donated by suckers who think they're donating usage rights to a museum, not transferring their copyright to a commercial enterprise, and the work of scanning them and cleaning them up is trivial. But they demand big bucks not just for usage but even for inquiring about permissions, or for, God help us all, calling them on the phone!

Note the clause where if if it's your fault that their website becomes popular, then you pay! Seeing as they not only sell advertising on the site, which should cover their excess bandwidth expenses, but they can get unlimited bandwidth from many providers (a shout-out here to bluehill.com) for under $10 a month, there's no reason for the "you have to pay us if you tell people about our website" clause except to try to extort money from any publication which mentions them, hoping that they'll pay up rather than fighting it.

This "user agreement" isn't a joke at all. It isn't the work of a naive bunch of railfans. It is a very cunning, very calculated attempt at making money. Their real business isn't pictures of old trains. It's lawsuits. The whole purpose of this, I think, is to find ways to get someone, somehow, to infringe on one of their "rights" and then sue them.


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Re: Worst Terms of Service Ever (Score: 0)
by Anonymous on Monday, February 09 @ 21:18:33 EST
what our functional parody actually says is that the website is completely free for more that 99% of the visitors who just want to enjoy seeing the pictures and are not making money by using our restorations.


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Re: Worst Terms of Service Ever (Score: 0)
by Anonymous on Tuesday, February 10 @ 01:53:04 EST
Key word: PARODY

http://dictionary.reference.com/search?q=parody%20

On their rants page, search for the word.
It's a joke, no doubt about it. It's nice that they're pretending to be for real, lol.


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Re: Worst Terms of Service Ever (Score: 0)
by Anonymous on Wednesday, February 11 @ 13:30:41 EST
i can't read the hole of it. but what i saw made me sad. this oeuvre could be the worst attack ever on the english (or american) language.
the culprit should be sentenced to hard labor at merriam webster at least.
maybe the patient is not suffering from ocd, but simply od-ed on stupidity and arrogance? with real sorrow alice sylvia lukacs


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Re: Worst Terms of Service Ever (Score: 0)
by Anonymous on Wednesday, February 18 @ 14:37:54 EST
It's actually a disclaimer, but does this count:

SALU, INC. TERMS AND CONDITIONS OF USE
http://greenhillsdermatology.dermdex.net/cgi-bin/disclaimer?g=greenhillsdermatology

I copied it to Word:

Pages 6
Words 2,560
Characters 13,241
Paragraphs 38
Lines 251

Malpractice doth make wordsmiths of us all


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