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Worst ToS Ever? The Discussion Continues |
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Last week, we wrote about the 21,000-word terms of service of the Central Pacific Railroad Photographic History Museum. CPRR has posted a reply to our post, the Slashdot post, and the many many comments on both sites.
I'd like to address some of the issues raised by CPRR, because I kept a bit mum about my opinions the first time around.
Hope that you also have enjoyed seeing the historic transcontinental railroad images and history.
Well, there's your problem right there, because the Terms of Service are standing between CPRR's users and its photos. And I have to say that I sincerely doubt that even the tiniest fraction of its users have read, let alone understand, let alone accept the terms of service. And as soon as you have a situation in which people aren't even attempting to read the terms -- perhaps, say, because they're 20,000 freaking words long! -- you've opened the door to all sorts of problems.
Talk about missing the big picture – 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.
Yes, the terms do "say" that, at great length and in great detail. But in the context of a 20,000 word legal document, those 99% of visitors can't just glance at the legal page, confirm that their use is free, and go merrily on their way. There could be all sorts of terrifying nightmare forfeiture clauses lurking in the that jungle of verbiage, and if you want to be safe about things, you had really better read every line.
Indeed, a great many passages in the terms of service require, at the least, a veeeeery close read. I noted some of these in my original piece. The clause that forbids use of the website from "any jurisdiction that does not allow the exclusion of implied warranties" is a great example. Quick quiz: does your jurisdiction allow the exclusion of implied warranties? Do you know where to look to find out? Do you know what an implied warranty is, or what it would mean to exclude it?
[Out of curiosity, I spent about twenty minutes on Westlaw playing around with searches on "exclusion of implied warranty." According to a treatise on products liability, Maryland, Rhode Island, Alabama, Connecticut, Vermont, Kansas, and Maine, Washington, New Hampshire, Missisippi, and the District of Columbia in some sense prohibit or limit such exclusions. But each of these places has its own statutory text and its own distinctive caselaw, so the same case could come out differently in different states. Plus, all of these laws refer to consumer goods. Whether a web site counts, and for what purposes, is another can of worms.]
Combine that sentence with the liquidated damates term -- five million dollars for a violation -- and all of a sudden it looks critically important to know whether or not your jurisdiction allows the exclusion of implied warranties. Now, a lawyer will sit down with these clauses, and patiently explain that the liquidated damages clause probably doesn't apply to the "access" restrictions (since it's concerned with loss of "exclusive rights"), and would probably be unenforceable anyway, since it's not reasonable in light of the actual damage caused by accessing the site from the wrong state.
But that would take a while, and some substantial legal fees, and that's just two sentences! Parsing through the whole ToS for similar "gotchas" would take days, if not weeks. By that time, your 99% user would have given up and gone to the library.
Humor aside, for someone who just wants to just seeing the wonderful historic images on our website, the user agreement says nothing much of interest.
I can hear the objection already. The 99% user won't read the full ToS; she'll just glance at them (if at all) and then start clicking around the site. Since her use is approved of, she's in no trouble, and everyone's happy.
No, actually, not everyone is happy. As soon as we're all relying on users not reading the terms of service, their legal enforceability gets much iffier. Imagine a contract saying "To accept, you must climb Mt. Everest and then click here. By clicking, you certify that you have climbed Mt. Everest. If you have not climbed Mt. Everest, you agree to pay us $10,000." Of course, no one goes off and starts recruiting Sherpas and buying expensive climbing gear; they just click through and everyone's happy. If the seller then sues one of the clickers for not having undertaken the requisite trek, well, I have a hard time seeing that term standing up in court.
The problem is that the Mt. Everest clause is so over-the-top absurd that people reading the contract will, by and large, think that it's a joke, something meant to be ignnored. Everyone ignores it; it's reasonable to ignore it. And under the "objective theory of contract" every first-year law student learns, the reasonable understanding of one party will prevail against the unreasonable secret meaning used by the other. Whether or not the buyer succeeds in rewriting the contract to mean what she assumes it to mean, she's quite likely to have the relevant clause simply crossed out of the contract -- or to have the contract as a whole voided. And in the case of web site terms of service, either of those results is a victory for the user over the owner, because she's escaped being bound by a term she doesn't like.
The point of this example is that under enough social pressure, words stop meaning what they claim to mean. They start meaning whatever it is that everyone acts like they mean. If enough people act as though the Everest term is an empty shell; it will be an empty shell. That's how language works: as people change the way they use words, the "meanings" of the words change, too.
I get the sense that a 20,000-word terms of service page is an Everest term. Its sheer bulk becomes an invitation to disregard it. Certainly, from browsing through the comments here and on Slashdot, I couldn't say whether more people think the page is meant seriously or whether the whole thing is a joke. (Indeed, even CPRR itself plays a bit with the self-parodic line.) Under those circumstances, the binding meaning of of terms starts to look pretty unfixed.
Which is to say, by making the 99% user choose to ignore the ToS, the CPRR starts to run a serious risk of allowing the 1% user to ignore them, too.
As you deride the CPRR.org user agreement as being "ridiculously overreaching" we challenge you and your colleagues to please show us a single example of another user agreement more to your liking anywhere on the internet for a museum website displaying historic images that you are confident both (1) actually forms a contract in view of Specht v. Netscape, and (2) successfully retains publication rights for displayed historic images even if they cannot be copyrighted, as in Bridgeman v. Corel.
This is an interesting question. For the uninitiated, Bridgeman v. Corel held that "slavish copying" of public domain photographs did not create copyrightable works. (Hence, CPRR's extensive attempts to point out the creativity and originality of its restorations). Specht v. Netscape struck down part of Netscape's clickwrap license agreement because users who didn't see it or know of it did not "manifest assent" to its terms (Hence, CPRR's extensive attempts to infer acceptance from clicking on any link). CPRR is trying to write a document that overcomes both of these hurdles, so that people who browse to and use the site are legally disabled from wholesale copying of its contents.
But, you know, as interesting as this question may be, I'm not going to answer it. If CPRR would like to protect its interests, it's welcome to hire a lawyer to find a solution for it, or to take a crack at the problem itself. That's not my job -- as I define it -- here at LawMeme.. My job is to point out interesting law-and-tech issues and to advance our understanding of them. And in this case, I find the outrageousness of the terms of service more interesting than the copyright and contractual issues.
I do have to say, from my perspective on right and wrong, that asking for an "example of another user agreement [that satisfies (1) and (2) above] more to your liking" is like asking for an "example of a way to kill someone more to your liking." I think the underlying legal purposes here aren't very good ones. CPRR shouldn't have intellectual property rights in its images, and it shouldn't be able to impose (almost undisclosed) boilerplate contracts just by registering your click on an image link. But if we are going to play that game, then let me point out for the record some of the things that I think make this particular user agreement a miserable one.
On the one hand, there are a few issues of underinclusion, believe it or not. You can land in this site -- by following a deep link or by starting from the main page -- without ever realizing that there's a terms of service page that purports to regulate your actions. This was exactly the problem in Specht: there, the ToS were simply not apparent to the casual downloader. If the CPRR were serious about binding visitors, they'd track IPs or set cookies and show a splash legal page to every new visitor. It doesn't matter what the ToS says about clicking on images to accept if people don't know -- and wouldn't reasonably know -- about their existance.
And similarly, see my rant above about the counter-productiveness of having such lengthy, legalistic, and overreaching terms of service. Their very complexity reduces the probability that any given term will be enforceable. This kind of thing invites defenses of reasonable ignorance, draws unwanted attention (like, say, Slashdot), and annoys judges. A shorter and clearer document is more likely to be effective.
On the other hand, there are tons and tons of clauses and sections in the user agreement that have nothing useful to do with CPRR's announced goals. They're just attempts to claw out a little more power over users. These are the items that really drew my attention to the page: they're doing no useful service to society or to CPRR, and they're doing a terrible disservice to web users. A (very) few examples:
- The required waiver of sovereign immunity is the part that had us cracking up in helpless laughter. There might be planets on which that part has operative legal effect; so far as I know, this isn't one of them. Governments can't waive sovereign immunity that easily -- and if they don't, what are you going to do about it? Sue them? Oh, that's right, you can't, because of sovereign immunity!
- "Time is of the essence hereof." That one's a term of art from contract law. It means, roughly, that if you're slow in delivering the goods to us, we can refuse to pay for them. It has NOTHING WHATSOEVER TO DO WITH ANYTHING AT STAKE HERE!
- Whether or not that five-million-dollar liquidated damages clause is enforceable, it's just a cheap trick (no, make that an expensive trick) to have something dire to hold over people's heads.
- All of those sections that redefine IP terms of art and require users not to contest CPRR's various "rights" -- this is the closest thing I've ever seen to an attempt to create new IP rights out of whole cloth. No-contest clauses are generally abusive wherever they appear, whether in wills or in contracts. Asking people to stipulate that your IP rights are as you claim they are makes a mockery out of any remaining notion of "balance" embedded in IP law.
- The anti-spam provisions are cute. They're also irrelevant to any issues of IP rights.
I could go on and on and on and on and on. In my personal off-the-cuff opinion, the actual "problem" could be addressed in a few hundred words, and those few hundred words would have about as good a chance at standing up in court as this behemoth.
From all I've seen, the CPRR folks are nice people who like old photographs of trains and want to share them. They're wary about legal stuff and want to cover their asses from various possibilities. And they rather see the legal system be a little less insane. Admirable goals, all. But a user agreement like this -- even if partly a parody -- makes things worse, rather than better.
If you have constructive criticism for CPRR on ways to improve their ToS and to make their publication rights stand up in court, please post them in the comments or get in touch with CPRR directly.
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Central Pacific is part of Union Pacific... (Score: 1, Informative) by Anonymous on Thursday, February 12 @ 10:34:16 EST | As a model railroader, my first thought when I saw the original article was that Union Pacific was enforcing even more ridiculous IP rights over Central Pacific logos and historical imagery. As stated on http://www.uprr.com/aboutup/licensing/ [www.uprr.com], "Union Pacific requires a licensing agreement for any use of a current or historic trademark of Union Pacific or its constituent railroads. Anyone wishing to use these logos must file a licensee application and obtain a licensing contract from Union Pacific." This licensing scheme has directly affected the retail price of model railroad equipment.
Central Pacific was absorbed into Southern Pacific before 1900, and Union Pacific absorbed Southern Pacific in the 1990s, therefore, Central Pacific is a constituent railroad of Union Pacific.
This has caused quite a stir in the model railroading hobby and manufacturing industry. A few references:
Many more articles can be found by googling for '"Union Pacific" licensing'. |
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Re: Worst ToS Ever? The Discussion Continues (Score: 0) by Anonymous on Monday, February 09 @ 19:15:36 EST | One of the problems with this "agreement" is that it prohibits anyone who disagrees with it from contacting CPRR in any way:
BY CLICKING ON ANY IMAGE OR LINK TO INDICATE "I ACCEPT," BY ACCESSING AND BROWSING THIS WEBSITE, OR BY SENDING US AN E-MAIL OR OTHER COMMUNICATION, WHETHER DIRETLY OR INDIRECTLY, YOU ARE ASSERTING THAT YOU HAVE READ AND AGREE TO THIS USER AGREEMENT, WITHOUT LIMITATION, THAT YOU UNDERSTAND THIS USER AGREEMENT, AND THAT YOU ARE LEGALLY AUTHORIZED TO ASSENT TO BE BOUND TO THE TERMS AND CONDITIONS AS PRESENTED IN THIS USER AGREEMENT.
...and further down ...
You agree to pay us three thousand dollars per unsolicited e-mail sent or telephone call...
This is not a way to encourage an open dialogue with their users, let alone anyone who thinks their user agreement is ludicrous.
Since these people are among those who think that writing something in all caps makes it more enforceable (as opposed to less readable) I've taken the liberty of changing the case of the rest of that page-long block of blather (is 328 words in one sentence good enough for Guinness?) so that it is actually readable.
First, they explain their supposed goal as follows:
The following provisions are need to make sure that we have permission to make use of donated images, etc. ? both now and in the future ? and also to allow the cprr museum to endure and evolve, for example, to enable us to take full advantage of technological advances.
Nothing wrong with that. It's not unreasonable to ask that you not donate pictures that you don't have the rights to, and that they don't have to keep checking back with you to find out if they can still continue using it. But then we get to the actual terms:
By submitting or granting us access, using any e-mail link on this website, transmitting via e-mail, or otherwise sending, contributing, providing to us, writing to or about us, or by granting us permission to use material, content and/or information, including but not limited to text, web pages, images, maps, names, affiliations, data, reviews, articles, and/or files ... [more words] ... that you assign copyright to cprr.org, and (if applicable) that all so-called moral rights in such material have been waived.
It could be argued that those 328 jumbled words would constitute a claim on any web page that any person associated with cprr.org is able to access (the "granting us access") part, and on anything that is written about them as well. In addition, they do not just ask for usage rights -- note the part down the bottom about you assign copyright to cprr.org. If they can see it, it's theirs -- and it's no longer yours.
Part of what you are requred to agree to is to perform quality assurance work for them without any compensation:
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, and the correction needed, if known to you, although we make no promise that any defects or errors will be corrected, and of any unauthorized or infringing use of our name, images or other content or property that you discover elsewhere.
Then you get to their privacy and security statement ... advising you to always use a proxy server and other weird things ... but as far as privacy on their end, which is what privacy statements usually entail, we have this:
No CPRR Museum security measures are needed to protect donated information or content or disclosed personally identifiable information and affiliation of the donor from being publicly viewed and/or distributed, as and notwithstanding any notice to the contrary, it is all intended to be available to CPRR.org for
Read the rest of this comment... |
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Re: Worst ToS Ever? The Discussion Continues (Score: 0) by Anonymous on Tuesday, February 10 @ 12:46:57 EST | As a law student, I too find those ToS to be laughable. Heck, if it weren't against their ToS in some way (which I'm positive it is), I'd even recommend to my Contracts Prof. that he use these as examples of what not to do! (Perhaps as a "Where's Waldo" or "How Many Mistakes Can You Spot" example.)
And as an fyi for CPRR, I deliberately didn't click on anything on that page or continue on to look at the site because of the ToS. So best wishes in your efforts but that's one hit you didn't get. |
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Re: Worst ToS Ever? The Discussion Continues (Score: 0) by Anonymous on Tuesday, February 10 @ 13:58:09 EST | I think they're spectacularly missing the point here (as you noted in your comments above, but it deserves further amplification). They attempted to force a contract on all visitors, and claim copyright on things they're not legally allowed to claim copyright on. They even admitted in their challenge to you to find a better TOS document, that those were their goals. Well, it is those goals themselves that are unacceptable. The huge volume of words, the other claims on the side, the waiver of sovereign immunity, all that stuff is window dressing. Those of us who would criticise the TOS document should avoid being distracted by the window dressing, because everyone who says "the waiver of sovereign immunity has to go" is implicitly saying "there might be some way that this TOS document could be okay without the waiver of sovereign immunity", and that is not the case. No TOS document with these goals could ever be okay.
You aren't allowed to force a contract on non-consenting participants.
You aren't allowed to claim copyright on things you aren't allowed to claim copyright on (tautology, but they appear to be trying to deny it).
There is no "nice" way to do those things that would make them okay; they are not ever okay.
- Matthew Skala |
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Mental illness? (Score: 0) by Anonymous on Wednesday, February 11 @ 15:18:33 EST | As someone who has had personal experience with mentally ill individuals, I would give credence to the comment made by someone in the first of this series that the person running this site exhibits possible instability, not least of which is showing a high level of intelligence and self-education that's nonetheless out-of-context and inappropriately applied.
Regardless of the mental state of this person, is the cause of intellectual property law so important that you need to ridicule and humiliate a private person? Please, go back to picking on Microsoft. |
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