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TOSAmend Automates Counteroffer Terms For Service Agreements

timothy posted more than 2 years ago | from the cross-out-with-a-broad-brush dept.

Software 138

First time accepted submitter BigSlowTarget writes "Are we simply subject to whatever a software provider demands of us in their clickthrough TOS agreement or are they real contracts where we can counteroffer our preferred terms and expect a refund if they are rejected? One blogger has come up with an applet to change TOS agreements and automatically submit the changes for approval (or rejection). Even he is not sure of the legal standing for the offer, but with these contracts so common they have been featured on South Park the issue certainly could be coming to the courts soon."

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138 comments

Nothing New (1)

kyrio (1091003) | more than 2 years ago | (#37501996)

You can amend any contract with your own terms as long as they are accepted by all parties. The chances of a company accepting the changes are nearly non-existent, though. You also won't be getting any refunds, especially since most of these TOS issues are with sites that provide free services.

Re:Nothing New (0)

Anonymous Coward | more than 2 years ago | (#37502046)

The "free" sites generally make revenue from advertisements, if they've violated your offer of the agreement they aren't likely entitled to that revenue and you should go after them for the piracy of your personal data. Theft is theft whether by a corporation or a person.

Re:Nothing New (1)

tomhudson (43916) | more than 2 years ago | (#37502110)

The "free" sites generally make revenue from advertisements, if they've violated your offer of the agreement they aren't likely entitled to that revenue and you should go after them for the piracy of your personal data. Theft is theft whether by a corporation or a person.

So *not* true. I can violate ANY offer you make unless I've accepted it. This TOSAmend is total BS, which is why I modded it as "stupid" in the firehose. The "amended" proposal pretty much will never be seen - the recipient's mail program sends it straight to /dev/null

Re:Nothing New (1)

snowgirl (978879) | more than 2 years ago | (#37502238)

Quite agreed... the party that drafted the contract has to accept any strike outs as well. This is obviously not enforceable in court.

Re:Nothing New (1)

ArsenneLupin (766289) | more than 2 years ago | (#37503428)

the party that drafted the contract has to accept any strike outs as well.

Likewise, the party that did not draft the contract has to accept it too. Which in this case, it did not (because it made a counter offer). So, we're basically back to a situation where no specific contract exists between the parties, so any relationship between them is governed by the general laws, rather than any clauses in a "contract" to which one party did not agree.

This is obviously not enforceable in court.

Quite true. This is the point.

Re:Nothing New (1)

snowgirl (978879) | more than 2 years ago | (#37503552)

the party that drafted the contract has to accept any strike outs as well.

Likewise, the party that did not draft the contract has to accept it too. Which in this case, it did not (because it made a counter offer). So, we're basically back to a situation where no specific contract exists between the parties, so any relationship between them is governed by the general laws, rather than any clauses in a "contract" to which one party did not agree.

If the person made a counter offer, and the EULA/ToS offering party has not made an acceptance of that counter offer then it is actually a mistake to believe that simply by making the counter offer you have dodged agreement to the EULA/ToS. If you carry on to use their product that is governed by the terms of the EULA/ToS after having made a counter offer, but without any specific acknowledgement of the acceptance of that counter offer, then you're implicitly assuming consent to your counter offer on their side, while they have the fact that you actually clicked "Accept" to their contract.

You cannot use something governed by a EULA/ToS under the terms of a counter offer contract unless they accept your counter offer. In most cases not accepting their EULA/ToS will result in them denying their service to you, which means under the "general laws" that you note now govern the relationship, you still have no right to use whatever they are offering under the terms of the EULA/ToS.

There is no way to "cheat" around the EULA/ToS and continue to use their service without accepting the terms of the EULA/ToS. The use of their services is conditioned upon acceptance of their EULA/ToS. As such, if you make a counter offer, then you have to wait until they accept your counter offer, before you can use their services.

This is obviously not enforceable in court.

Quite true. This is the point.

My point was that the COUNTER OFFER will not be enforceable in court. If you used their services despite presenting a counter offer EULA/ToS, then unless you have a specific acceptance of that counter offer contract, then you will be judged to be bound to the terms of the EULA/ToS as drafted by the opposing party.

This really doesn't make any better state for the person offered the EULA/ToS than just clicking the "Disagree" button when presented with the EULA/ToS. Even after making your counter offer, you are still not afforded access to the service until either they accept your counter offer, or you accept their original offer. ... and if you went on to use their services, guess which way the court is going to rule... (hint: against you).

Re:Nothing New (1)

mikelieman (35628) | more than 2 years ago | (#37503714)

Couldn't one of your terms be, "Granting access to your site constitutes acceptance of our modified TOS"?

Re:Nothing New (2)

bws111 (1216812) | more than 2 years ago | (#37504386)

No, because you have to be competent to make an agreement. A machine that is not designed to recognize, understand, and analyze unexpected counteroffers is not competent to make a decision, therefore any such 'agreements' are probably non-binding.

Stupid, stupid, stupid (2)

Dogtanian (588974) | more than 2 years ago | (#37502678)

This TOSAmend is total BS, which is why I modded it as "stupid" in the firehose.

Quite true. This is merely the automation of the kind of utterly pointless (and worthless) stupid ideas that computer nerds come up with to play or use the legal system, because they think they know how it works. Except that they don't and- as I've said before- the only way to know how legal systems work is to find out.

The "amended" proposal pretty much will never be seen - the recipient's mail program sends it straight to /dev/null

I'm not sure what the logic is supposed to be here anyway. They send it back via POST headers or something and this gives them the opportunity to see it and respond manually? Or they're deemed to have accepted the modified terms because they were passed back via the mechanism normally used to accept them?

Except that would one *really* expect to receive a modified offer in this manner and would that stand up in court? I don't know the answer, and unless this guy does, the tool is pointless. Oh, but...

Full Disclosure: I am an web app builder, not a lawyer, so I am unsure where using TOSAmend to amend terms of services would (or would not) hold up in court as a legally-permissible way of modifying a contract. I intend this as a proof of concept

So, he really doesn't have a clue, and I don't think this guy knows what the "concept" is meant to be anyway. As I said, it's just the automation of the kind of stupid, muddled pseudo-legal idea we see on Slashdot all the time. Nothing to see here.

Re:Stupid, stupid, stupid (1)

muridae (966931) | more than 2 years ago | (#37503108)

If the app accepts you clicking a button as agreeing to their contract, which still has not been thoroughly tested in the courts, then why should they not accept that the party that enforces this 'click to agree' system is agreeing to modifications if they, too, are clicking the correct buttons. Just because it is automated on their end should mean as much as it being automated on the users end. An automated accept of a contract, these EULAs have been trying to convince us, is just as valid as if you had read and understood everything and signed your name to the contract. That detail should work both ways.

Re:Stupid, stupid, stupid (1)

Dogtanian (588974) | more than 2 years ago | (#37504572)

If the app accepts you clicking a button as agreeing to their contract, which still has not been thoroughly tested in the courts, then why should they not accept that the party that enforces this 'click to agree' system is agreeing to modifications if they, too, are clicking the correct buttons. Just because it is automated on their end should mean as much as it being automated on the users end. An automated accept of a contract, these EULAs have been trying to convince us, is just as valid as if you had read and understood everything and signed your name to the contract. That detail should work both ways.

Er, the click on the user's end is manual and presented to them explicitly- and I very, *very* much doubt that sending some guff back in the headers that the licensor wasn't expecting (and will probably be ignored by their systems) is going to have any legal weight at all. No, not even if you give some stupid argument to the judge saying "look! they accepted it".

Even the guy who designed this system admitted he basically doesn't have a clue about the legalities and tried to half-justify this half-baked, pointless, pseudo-legal drivel by saying that it would act as a conversation point or somesuch drivel.

Re:Stupid, stupid, stupid (1)

allo (1728082) | more than 2 years ago | (#37504858)

hm, lets say i run a little piece of javascript to make the readonly TOS-textarea read-write. Then i change it and click accept. The problem of the other party not being informed of the change is not my problem, i clicked agree, the other party did not disagree (as they never actually agree but only create your account and therefore implicitly agree), the only problem is, that they really do not know about it. So later in court you can have good chances, but before they will just act like you violated the contract, even when they may have violated the new one.

Re:Nothing New (0)

Anonymous Coward | more than 2 years ago | (#37502850)

wouldn't /dev/void be more apt?

Re:Nothing New (1)

sjames (1099) | more than 2 years ago | (#37503194)

You shove a page in my face. I cross out a few bits I don't agree to and shove it back. If you then provide the service anyway, you agreed.

Re:Nothing New (1)

tomhudson (43916) | more than 2 years ago | (#37503334)

You shove a page in my face. I cross out a few bits I don't agree to and shove it back. If you then provide the service anyway, you agreed.

I tell you to help yourself to something to drink in my fridge ... you say you don't agree, that you should be able to eat anything you want, and then go on to eat everything in my fridge.

Once you make a counter-offer, the original offer is legally terminated (you've deemed not to have accepted it). Think about that for a minute ..

Re:Nothing New (2)

sjames (1099) | more than 2 years ago | (#37503592)

Bad analogy since it's not a transaction. I'll use a real world example:

Power company shoves a legal agreement across the counter to me. Clearly, I am the first person to actually read it since it doesn't even manage to use the pronouns you and us consistently. I strike and initial the screwy parts, and ask the representative to initial as well. They accepted my amendments by opening the account anyway. I did get electricity.

Legally speaking, there were two conscionable possibilities there. Either the modified agreement was in place or there was no agreement in place and customary terms for a transaction apply instead (that is, they provide a fit product or service and I pay the advertised price for it).

Re:Nothing New (1)

KDR_11k (778916) | more than 2 years ago | (#37503680)

But should it be assumed that something as unnecessary as an EULA has to be accepted to use the program? They're using a technical trick - that they can prevent the program from running/installing if you don't click on a button that binds you to a contract - to make you agree to a completely unnecessary contract that does nothing except fuck you over. Contrary to their propaganda an EULA is not a legal necessity for handling computer programs and copyright law. If the EULA contract failed to form for some reason that still would not make it illegal to install and use the program and as such the end user doesn't give a fuck if the counter offer leads to no contract forming.

Re:Nothing New (1)

bws111 (1216812) | more than 2 years ago | (#37502148)

Even if that were remotely true (which it isn't), that would be entirely between the buyer and seller of the ad, not you.

Don't count on it. (1)

SanityInAnarchy (655584) | more than 2 years ago | (#37502384)

Depending on how thorough the company is, the SOP with paper is to just go through the document and strike (with a pen) the stuff you don't agree with, then sign it and hand it back to them. Chances are, they won't notice. Sometimes they notice and don't care. Very rarely, they notice and do care.

When it comes up, however, if they signed it too, then you're in the clear. If they didn't read your modifications, they're no better off than if you didn't read the contract to begin with.

The problem is whether anything like this could be an acceptable way of modifying a contract. It seems to follow a similar principle -- if the service in question isn't expecting it, then you modified the contract and they agreed also, so you win. But at the same time, unlike paper, there's no reasonable expectation at this point that the server will notice these headers, and if we either insist on some acknowledgment from the server that they like those headers or wait till this is well-known enough for services to adapt, then you'd be right and they'd be unlikely to accept any changes.

Re:Don't count on it. (1)

owocki (2469504) | more than 2 years ago | (#37502578)

Sanity, As my post says, I'm unaware of the legal precedent, so I can speak only as a technician: The analogy that I'm working with is that the recipient web server has the obligation of validating the TOS POST parameter and the entire POST form in order to accept (or reject) the users registration on behalf of the owners of their company. In a pre-web world, I wonder how much obligation is placed on say, a bank teller, who fails to notice a crossed-out term in a bank account obligation, and how that would translate to an online world. Best, Kevin

Re:Don't count on it. (2)

Wrath0fb0b (302444) | more than 2 years ago | (#37502682)

In a pre-web world, I wonder how much obligation is placed on say, a bank teller, who fails to notice a crossed-out term in a bank account obligation, and how that would translate to an online world. Best, Kevin

None. Acceptance of a contract has to be done knowingly. When you make any modification to an offered contract (e.g. by strikeout), that means you've rejected the offer and made a counteroffer. See, Hyde v. Wrench (1840) 3 Beav 334. The bank teller would then have to actually have to affirmatively know about and accept the counteroffer in order to create a binding contract.

Re:Don't count on it. (3, Informative)

bws111 (1216812) | more than 2 years ago | (#37502730)

And be AUTHORIZED to accept a counteroffer.

Re:Don't count on it. (0)

Anonymous Coward | more than 2 years ago | (#37502936)

Great, I'll tell Sony, and ever other company that charges TOSs and say lack of acknowledgment is the same as agreeing.

Re:Don't count on it. (0)

Anonymous Coward | more than 2 years ago | (#37502716)

You seem to have zero understanding of the law, yet you are making a tool which can directly get it's users in legal trouble. That is a great idea. I wouldn't want to be you when your first user gets sued for violating a TOS, and he says 'but I used this tool, so it is OK'. Better start your defense fund now.

Re:Don't count on it. (1)

bws111 (1216812) | more than 2 years ago | (#37502762)

Have you checked out the laws on practicing law without a license? It seems to me you are offering legal advice (use this tool and you can modify a legal agreement), but don't really know even the most basic things about law.

Re:Don't count on it. (0)

Anonymous Coward | more than 2 years ago | (#37503628)

In many locations, in order to actually be in violation of the laws against practicing law without a license, you have to hold yourself out as being a qualified attorney and receive compensation. As this seems to be offered without contract or compensation, and , it wouldn't be in violation of those laws.

In most jurisdictions, even the IANAL tag you frequently see here with discussions of legal matters is sufficient as a shield against prosecution for practicing law without a license.

And the developer of this app clearly states he isn't a lawyer. He's basing the concept of this app on logic, which the law frequently defies.

As far as the usefulness of this app for purposes of invalidation of the contracts of adhesion that are being discussed here, I'm not at all sure what a court would find, considering that the contract itself is presented in an automated fashion. It's almost certainly an untested area of law.

My personal policy is that I NEVER read the contracts, I don't attempt to understand them, I simply click what I understand to be the "make it work" checkbox. If it's challenged my defense is that it's not a valid contract because there was never a meeting of the minds required for such a contract to be valid, I simply clicked where I thought would be appropriate to make the site work, based on my past experience with checkboxes. And there is actually some valid legal precedent for that working in court.

Re:Don't count on it. (2)

aztracker1 (702135) | more than 2 years ago | (#37504058)

So, it should be illegal to bind someone to a contract unless both parties have a lawyer present to review it.

Re:Nothing New (2)

the_Bionic_lemming (446569) | more than 2 years ago | (#37502466)

Also, don't you have to be sober when you agree to a contract for it to be binding?

I can easily demonstrate that fully 9/10's of all TOS's I clicked thru would be invalid if that's so.

Re:Nothing New (1)

sed quid in infernos (1167989) | more than 2 years ago | (#37503132)

Also, don't you have to be sober when you agree to a contract for it to be binding?

No. See http://en.wikipedia.org/wiki/Lucy_v._Zehmer [wikipedia.org] . It's not the intent, but the meaning of the words and acts as observed by the other party. Inebriation is not generally a defense.

Re:Nothing New (1)

Doc Ruby (173196) | more than 2 years ago | (#37503298)

What evidence would you produce? Sloppy clicks?

Re:Nothing New (1)

the_Bionic_lemming (446569) | more than 2 years ago | (#37503498)

Receipts from alcohol purchases..

Let's run with this idea! (3, Insightful)

laird (2705) | more than 2 years ago | (#37502064)

I love the idea of this. I have to wonder, though - does sending a POST message to a web server have any legal meaning? It'll just end up in some web server log, ignored by the app and never notified to a person, so I'd think it wouldn't be a very strong argument. Now, if your app could figure out where to email a modified TOS, that would be much stronger, but of course that's a lot more work.

Realistically, though, no consumer web site can afford to negotiate individual contracts for individual users, so the best you can really achieve would be to get them to change their standard TOS to have better terms. To that end, I would suggest that you could extend this widget so that it not only nofied the site owner, but also collected a database of TOS objections. Imagine if you could say "10,000 people objected to site X's standard TOS, and 75% of the objections were to paragraph Y." That might pressure companies to change their TOS.

I'd be happy to build and host the server side, if you'd like. I don't know much about client side JavaScript, but servers are easy. :-)

Re:Let's run with this idea! (0)

Anonymous Coward | more than 2 years ago | (#37502174)

I love the idea of this. I have to wonder, though - does sending a POST message to a web server have any legal meaning?

Isn't my agreement to the TOS via a POST statement as well? If one has legal weight, why not the other?

Re:Let's run with this idea! (1, Funny)

tomhudson (43916) | more than 2 years ago | (#37502210)

Modified TOS to submit:

Little_Bobby'); DROP TABLE users; --

Re:Let's run with this idea! (1)

owocki (2469504) | more than 2 years ago | (#37502720)

I love the xkcd comic on SQL injection: http://xkcd.com/327/ [xkcd.com]

Re:Let's run with this idea! (0)

Anonymous Coward | more than 2 years ago | (#37502206)

I have to wonder, though - does sending a POST message to a web server have any legal meaning? It'll just end up in some web server log, ignored by the app and never notified to a person, so I'd think it wouldn't be a very strong argument.

The same sort of question arises with car parks, with signs on the wall saying "By entering this car park, you agree to xyz". They may assert that I agree, but it doesn't mean that I agree. Likewise, a content provider may assert on its web page that "By viewing this page, I (the viewer) agree to be bound by xyz", but it doesn't mean that I agree.

Whenever I do web scraping, I add a field to the http request header saying "By allowing this web server to serve me content, the content provider hereby permits me to process the data, and to publish the output of my processing." It seems to me that it is just as strong as any disclaimer on the web page, i.e. not strong at all.

A lawyer friend told me that a young judge would likely throw out my argument as nonsense, but an older judge would be amused and throw out both sides as nonsense.

Re:Let's run with this idea! (1)

hedwards (940851) | more than 2 years ago | (#37502352)

Around here one of the parking lots has restrictions on where people can park for validated parking. It's one contiguous parking lot, but when you go inside to get the validation there are signs up saying that you can only park in these spaces. And some are only available for certain businesses, but aren't marked in any way shape or form.

I'd be curious as to how that could possibly stand up in court.

go raound with a sign saying by reading this theft (1)

Joe_Dragon (2206452) | more than 2 years ago | (#37502460)

go around with a sign saying that by reading this you agree to not press changes for theft and that I am not responsible for it or any other crime. Also if a 3rd party or you does so then you will pay me 1k per day* in lockup, jail, court, prison, community service + all courts costs + all attorney fees.

* day as in calender days (rounded down to last hour on first day and up to the nearest hour on last day)

Re:Let's run with this idea! (1)

TheRaven64 (641858) | more than 2 years ago | (#37503224)

Generally, these agreements can only be enforced if both parties gain something. In the case of the car park, you gain the right to park there. If you don't accept the terms, then you are trespassing by entering the car park. In the case of a web server, you are gaining a limited copyright license. Your web browser is making a copy of someone else's copyrighted material, so you need a license. Depending on your jurisdiction, this license may or may not be implicitly granted by placing the material on a public web server.

Re:Let's run with this idea! (1)

KDR_11k (778916) | more than 2 years ago | (#37503718)

But what do I gain from an EULA? The copyright law already has specific provisions allowing you to install and run the software without needing any licenses.

Re:Let's run with this idea! (0)

Anonymous Coward | more than 2 years ago | (#37502338)

Does a mis-thunked 160x120px Win16 modal dialog window count as a meeting of the minds? I run a User Agent string with my own EULA, whether it wins or not is unimportant, if it makes the other side buy one more lawyer hour it has paid for itself.

(All http transactions and their contents submitted to this Web Browser Hypertext Rendering and Javascript Execution Service (heretofore known as SERVER) will automatically become the property of said SERVER's user (USER), without any compensation to you. You agree to defend and hold harmless the USER in any and all legal proceedings you, or other persons or entities of any relation, might carry against the USER. If any clause or provision in these terms of use are found invalid or unenforceable under applicable law, the remaining clauses and provisions shall continue in full force and effect. These terms shall supersede any provisions, terms, or conditions otherwise accepted by the USER in relation to this connection session. If such other legal agreements in any way conflicts with or are inconsistent with these terms herein, these conditions of service will prevail. If any other contracts, agreements, or terms of use should lay claim to preference in the event of conflicting claims, these conditions shall take priority. If you do not agree with these terms, you may not use this SERVER, and must discontinue its use immediately. This SERVER may continue to advertise availability (such as by, but not limited to, an HTTP "GET" message), after such discontinuation of service, further communications to this shall constitute a separate acceptance of these terms for that session.)

Re:Let's run with this idea! (1)

sjames (1099) | more than 2 years ago | (#37503312)

If sending a POST has no legal meaning, then you're in the clear anyway, because the post that would have agreed to their terms meant nothing either.

The real point here though is that the very idea of contracts of adhesion with page after page of legalese is an absurdity in the first place. Not only does no meeting of minds take place, but the language used in the "contract" is clearly designed to make sure there is none. Supposedly, checking a box and pushing a button (and various other trivial actions) is just as good as a signature (sure). If their contract has any legal merit whatsoever, then so does a counteroffer made in this way.

Obviously No Strong Legal Standing (3, Insightful)

Nivardus (2266896) | more than 2 years ago | (#37502080)

Though this is a fun concept, I'm sure it'd have a stronger legal standing if it sent revised contracts to sites through a reliable and expected route such as email rather than an unknown and nonstandard HTTP argument. You might as well submit a revised physical contract by wadding it up into a ball and throwing it onto the lawn of the agent that gave it to you, continuing merrily as if they accepted it. Whether a script would be able to find reliable routes is another issue.

Re:Obviously No Strong Legal Standing (1)

BlackLungPop (1307317) | more than 2 years ago | (#37502102)

How about doing a WHOIS on the domain and sending email to the Administrative Contact (or any email addresses found)?

Re:Obviously No Strong Legal Standing (1)

tomhudson (43916) | more than 2 years ago | (#37502136)

How about doing a WHOIS on the domain and sending email to the Administrative Contact (or any email addresses found)?

And how many of those WHOIS email addresses are hidden behind privacy services such as domainsbyproxy or monicker?

What I want to see is for search engines to lower the rank of any domain that hides their ownership info - and a spam filter that does the same thing.

Re:Obviously No Strong Legal Standing (2)

QX-Mat (460729) | more than 2 years ago | (#37502228)

The OP is right... but it's interesting.

For ordinary agreements you need offer (contractee) and acceptance (contractor), in a ToS acceptance and assent to the terms is implied by some form of conduct. TOSAmend seeks to make a unilateral contract (one to the world) bilateral (between parties) with no real chance or form of agreement. I believe it can be construed as an unaccepted counter offer. In such cases the method of communicating acceptance/rejection is important. Merely the act of making a counter-offer rejects the original offer ('destroying' it).

Website ToS are unilateral agreements. Your acceptance is your participation on a website be it subscribing, visiting or checking a box that signs your soul away. The obvious basis is that you cannot accept an agreement you have not agreed, nor can someone accept an agreement you have not proposed - acceptance requires a positive act on behalf of the contractor. All in all this won't stand up in a real court... in a TOSAmend user's favour.

However, I find the interesting bit is what happens next. If you don't assent to the terms or the original unilateral contract, and it is clear from your conduct that you have not (striking out terms etc), and managed to propose and communicate a counter offer, is the contractee bound by any of the original terms?

In common law you have to assent to terms. Ambiguity and unfairness are often side with the consumer in litigation. Unfair unilateral contracts are the most unreasonable of them all. A website trying to enforce a unilateral contract where acceptance was clear through conduct might find themselves with another burden: proving the contract the end user saw and assented to was their unmodified copy. Post form, text input box, and server-side string match of the accepted contract and original would easily solve the problem. In the mean time... don't let the user interact with the website... at all.

Just thinkin'

Matt

Re:Obviously No Strong Legal Standing (1)

xelah (176252) | more than 2 years ago | (#37503174)

The OP is right... but it's interesting.

For ordinary agreements you need offer (contractee) and acceptance (contractor), in a ToS acceptance and assent to the terms is implied by some form of conduct. TOSAmend seeks to make a unilateral contract (one to the world) bilateral (between parties) with no real chance or form of agreement. I believe it can be construed as an unaccepted counter offer. In such cases the method of communicating acceptance/rejection is important. Merely the act of making a counter-offer rejects the original offer ('destroying' it).

You aren't allowed to access someone's computer, or use their intellectual property, without their permission. If you haven't accepted the terms of service what gives you that permission? It could be implicit - I presume that putting a public website on a public webserver implies permission for people to fetch pages unless something about them makes it obvious that that's not what's intended. At this stage if you're still accessing the computer knowing that you've bypassed a technical measure designed to ensure only people who have been authorized via the TOS are using it it's not hard to imagine that this doesn't apply.

Website ToS are unilateral agreements.

That's a contradiction in terms. The website owner has indicated his agreement to the TOS by intentionally causing his web server to serve it to you, and then you accept or reject it. It has two parties; it's bilateral. What you mean is that they've offered you certain terms without providing you with any means to negotiate them.

Your acceptance is your participation on a website be it subscribing, visiting or checking a box that signs your soul away. The obvious basis is that you cannot accept an agreement you have not agreed, nor can someone accept an agreement you have not proposed - acceptance requires a positive act on behalf of the contractor. All in all this won't stand up in a real court... in a TOSAmend user's favour.

Acceptance might require a positive act, but the organization running the web server has not performed the positive act to accept your counter-proposal. All you've done is cause their computer to write your counter-proposal to a log file somewhere, if that. It can no more be considered accepted by them than if you'd written it on a piece of paper and dropped it on the floor in their office toilet and walked away. And you KNOW that they don't intend to give permission to you to use their computer to access whatever service it is without your agreement to the TOS, so you're now accessing a computer system without authorization. And that's probably illegal wherever it is you live.

Re:Obviously No Strong Legal Standing (1)

kenshin33 (1694322) | more than 2 years ago | (#37503502)

wouldn't the said paper ball be sitting right next to the other paper ball (the one the user used to sign your soul away -- the I agree --)? if it's the case if one can find the second the first can too be retrieved ...

Re:Obviously No Strong Legal Standing (1)

Surt (22457) | more than 2 years ago | (#37504086)

Why would you have to know that you bypassed an agreement. Most websites do not have TOS. If the computer I'm using never shows me TOS, how would I ever know when I had bypassed an agreement.

Re:Obviously No Strong Legal Standing (0)

Anonymous Coward | more than 2 years ago | (#37504532)

Acceptance might require a positive act, but the organization running the web server has not performed the positive act to accept your counter-proposal. All you've done is cause their computer to write your counter-proposal to a log file somewhere, if that. It can no more be considered accepted by them than if you'd written it on a piece of paper and dropped it on the floor in their office toilet and walked away. And you KNOW that they don't intend to give permission to you to use their computer to access whatever service it is without your agreement to the TOS, so you're now accessing a computer system without authorization. And that's probably illegal wherever it is you live.

Isn't the fact that the server is serving you the website a positive act? Especially considering that a number of websites rely on the fact that, by usage of the site, you are implicitly accepting the Terms of Use, I think its functionally identical. By them still serving the website to you, they have implicitly accepted your modifications to the terms from the Post.

Re:Obviously No Strong Legal Standing (2)

mikelieman (35628) | more than 2 years ago | (#37503770)

The OP is right... but it's interesting.

For ordinary agreements you need offer (contractee) and acceptance (contractor), in a ToS acceptance and assent to the terms is implied by some form of conduct. TOSAmend seeks to make a unilateral contract (one to the world) bilateral (between parties) with no real chance or form of agreement.

I would say that the website's permitting him to log-in is a pretty clear sign of acceptance.

Re:Obviously No Strong Legal Standing (1)

mikelieman (35628) | more than 2 years ago | (#37503738)

Consider what happens if your first revised term is: "Providing web services constitutes acceptance of our revised TOS"

Re:Obviously No Strong Legal Standing (1)

Surt (22457) | more than 2 years ago | (#37504064)

Doesn't the same argument apply to the contract they sent you via http in the first place?

Brilliant (1)

clyde_cadiddlehopper (1052112) | more than 2 years ago | (#37502086)

A logical alternative to the false dichotomy: Agree / Disagree.

Re:Brilliant; Except (0)

Anonymous Coward | more than 2 years ago | (#37502938)

As long as the company reserves the right to amend the terms of service at any time in the future and without prior notification, then you remain at the whim of whatever mood the madmen at the helm experience in the moment.

Try to remember: You are part of the Ownership Society, now and until we tell you otherwise.

Interesting (0)

Anonymous Coward | more than 2 years ago | (#37502180)

The idea is interesting, but is as effective as editing the page by hand to remove or edit the TOS. The server won't track the changes, and will consider the agreement as displayed the legal one.

However, I do envision a way around this, but would require some level of political will to do so.

Either
1. Make it so each clause has a tick-box, upon selecting strikes out, and all EULA and TOS agreements are saved on the client-end and submitted to the site via hidden fields, and emailed to the user.
2. Make it so the EULA/TOS itself is an input object that can be edited, with the edited version saved to the client and timestamped. This should then be emailed to the user itself.

Should it then ever be taken up in court, they need merely obtain the client version of the EULA/TOS and 'diff' it to the site one. The political will is involved by requiring the site with the EULA/TOS to keep track of what clauses are edited or objected to, or even a third party site to track them. This has tended to work already when sites change their copyright ownership statements (see Livejournal, DeviantArt) but only the negative press of the site "doing something evil" ever gets those changed. Other sites (eg Nexon, Blizzard-Activision, EA) have TOS that prohibit cheating or pirating the game code, but sometimes word things in ways that are clumsy or leaves open a loophole. We don't want people striking these clauses out and still have service.

But the average website has no legal standing to enforce a TOS if it's generally read-only.

Re:Interesting (3, Informative)

snowgirl (978879) | more than 2 years ago | (#37502212)

My entire response to your post: "do not take your legal advise from the internet."

What's the point? (1)

bws111 (1216812) | more than 2 years ago | (#37502234)

What exactly is the point of this? Your choices are pretty much:

1) Agree to the TOS, and use the service
2) Don't agree, don't use the service
3) Propose modifications, which will either be not seen, ignored, or rejected, and you are right back where you started

If you don't like the TOS, send an email and say why you aren't using their service.

Re:What's the point? (1)

Khyber (864651) | more than 2 years ago | (#37502422)

The point of this is to amend unenforceable EULAs to make them an enforceable binding two-party contract where the end user has some legal protection.

Let me guess, you just game and never bother reading those EULAs, eh?

Thankfully, I'll bet on EA's EULA getting tossed right the fuck out the door once I SUE THEM AGAIN.

McQuown vs. Electronic Arts, ROUND 2.

Prepare for yet ANOTHER knockout.

Re:What's the point? (1)

bws111 (1216812) | more than 2 years ago | (#37502560)

And exactly how does an unread, ignored, or rejected counter-proposal achieve any of your lofty goals?

Re:What's the point? (1)

russotto (537200) | more than 2 years ago | (#37502780)

And exactly how does an unread, ignored, or rejected counter-proposal achieve any of your lofty goals?

If an unread, ignored, or rejected EULA or TOS can be binding, why NOT this?

Of course it won't stand up in court, but it does underline the basic illegitimacy of EULAs.

Re:What's the point? (1)

bws111 (1216812) | more than 2 years ago | (#37504298)

A EULA or TOS is expected and assumed to be agreed to by a competent person. Said person has the opportunity to read and understand the agreement. If he can't understand it, he can get advice from legal council. If he doesn't want to do that, he can reject the agreement.

A modified GET or POST is not expected to be seen by a person. A machine can not make a decision if it was not designed to do so.

If you are legally unable to make a decision, whether you are a person (ie underage, incompetent, etc) or machine (not designed to do so), your decisions are not binding.

Re:What's the point? (1)

sjames (1099) | more than 2 years ago | (#37503380)

What if one of your amended terms is that by serving web pages to you, they indicate their acceptance of your counter-offered TOS?

If they don't accept modified TOS, they should just not serve web pages if there is anything unexpected in the POST transaction.

Re:What's the point? (1)

bws111 (1216812) | more than 2 years ago | (#37504264)

Here is an easy way for you to test this bizarre theory. Go to a web site that sells stuff. Purchase a couple thousand dollars worth of stuff. When you get to the page that says you agree to pay, send a modified response that says 'BTW - I am proposing different prices. I will only pay $100 for all these things. If you ship the stuff to me you have accepted these modifications'.

When you get your credit card bill, contest the charges on the grounds that you proposed a different price and they accepted it. See if you can convince anyone (merchant, CC, police, prosecutor, judge, jury) that what you did was anything other than fraud.

And no, an error (such as ignoring unexpected data) does not count as acceptance of an agreement, which requires a conscious decision (the so-called meeting of the minds).

Re:What's the point? (1)

sjames (1099) | more than 2 years ago | (#37504464)

Since I am arguing for legal parity, it shouldn't surprise me if MY unconscionable contract of adhesion isn't worth anything either. The terms revert to the customary terms of a transaction which means I pay for what I buy and they send it to me promptly.

That's really the point of this IMHO, the whole idea that a contract can exist based on a click where the clicking party isn't positively identified, the record of the click can't be validated and isn't even kept, and the contract can change at any time is absurd. Simply reverse the direction of the adhesion and watch the former boosters of the nonsense sxcreech about how unfair it would be and how insupportable it all is.

Comedy gold!

Re:What's the point? (0)

Anonymous Coward | more than 2 years ago | (#37504560)

You always manage to come up with the stupidest arguments on any subject. It is pretty impressive how you manage to make your arguments sound almost plausible. Are you, by any chance, a bot trying to pass the Turing test? If so, you haven't made it yet.

Coming to the courts soon? (-1)

Anonymous Coward | more than 2 years ago | (#37502266)

I thought ToS agreements had already been to the courts in the late 1980s to early 1990s and found to be fully enforceable. This page says the major case was ProCD v. Zeidenberg in 1996. [wilmerhale.com]

Re:Coming to the courts soon? (0)

Anonymous Coward | more than 2 years ago | (#37502326)

Try reading what you link to.

Battle of the forms (2)

Animats (122034) | more than 2 years ago | (#37502348)

This has been tried. See the story of "TakemymoneyandnoEulasapply@aol.com." [yale.edu] That seems to have had no effect. For an overview of current law, see this legal commentary on terms of use. [kentlaw.edu]

When companies have tried to enforce the provisions of an EULA against consumers, the courts have not been that supportive. This usually comes up involving mandatory arbitration clauses and anti-class-action provisions. PayPal lost in court [bna.com] on that one.

Re:Battle of the forms (1)

owocki (2469504) | more than 2 years ago | (#37502650)

In the yale case, it seems that the customer tried to modify the EULA with their email address. That doesn't seem to be the same method as used in traditional paper forms (ie. you cannot just write 'I dont agree to the TOS' as your first name when signing up for a bank account, you need to strikeout the provisions instead). Whereas, TOSAmend is passing along a new TOS via the POST parameters, which is already where the TOS acceptance is being indicated by the web server. (The analogous pre-web simile is crossing out a TOS provision)

Make TOS changes manually (1)

redelm (54142) | more than 2 years ago | (#37502374)

When the TOS is a modifyable textbox, then it is easy to make changes manually. This once was common, but is increasingly rare.

As for legal standing, IANAL but AFAICS the modification is a counteroffer subject to acceptance. If the pgm installs or service runs, that sure looks like signs of acceptance.

Re:Make TOS changes manually (1)

xelah (176252) | more than 2 years ago | (#37503288)

As for legal standing, IANAL but AFAICS the modification is a counteroffer subject to acceptance. If the pgm installs or service runs, that sure looks like signs of acceptance.

However, you haven't communicated the counteroffer to the other party to the contract and they have not accepted it. The fact that you've nevertheless caused your/their computer to do what you want doesn't mean they've done so. You KNOW that they don't intend to grant permission to you to use their property without you agreeing to their offer, and you KNOW you haven't done that. Ludicrous sophistry designed to disguise this just isn't going to work. (You might, of course, have a better argument if you've paid for the software in advance, which is a rather different scenario).

Re:Make TOS changes manually (1)

ArsenneLupin (766289) | more than 2 years ago | (#37503486)

Ok, so any clause "the software publisher owes the user $1000000 for his valuable system testing services" that the user inserted is void, because no human on the publisher's end agreed to it. Fair enough.

But so is any clause such as "we may sell the user's private data to any party we want", because the user didn't agree to the contract either. Indeed, he made a counteroffer.

So, basically, in this situation, there is no contract at all: the user is not bound to any clauses specified in the TOS, and the service provider is not bound to any clauses specified in the user's amended TOS. Instead their relationship is government by the general laws (data protection laws, copyright laws, anti "hacking" laws...)

Re:Make TOS changes manually (1)

bws111 (1216812) | more than 2 years ago | (#37504334)

You are correct up to a point. However, the catch is that if you don't agree, you don't get to use the service, because it is only offered on acceptance of the agreement.

Think of it this way: someone offers to sell you something for $50. You do not accept that price, and make a counteroffer of $40. At this point, the seller owes you nothing, and you owe the seller nothing. Until you come to an agreement, you do not get the thing, and the seller gets no money.

Re:Make TOS changes manually (1)

ArsenneLupin (766289) | more than 2 years ago | (#37504366)

Seller wants $50.
You instead hand the seller $40, but the seller still hands you the merchandise without comment. Looks like he accepted your counteroffer...

Re:Make TOS changes manually (1)

bws111 (1216812) | more than 2 years ago | (#37504400)

Only if seller is competent and authorized to make such a decision. If the 'seller' is the checker at your local department store, you still owe $50 if you take the merchandise. Failure to pay it, regardless of what the checker says, is still theft. Same with web servers that have not been authorized to accept counteroffers.

Re:Make TOS changes manually (1)

ArsenneLupin (766289) | more than 2 years ago | (#37504506)

Is it the customer's business to check who has, and who hasn't authority to make a deal? How am I supposed to know whether my car salesman is authorized to negotiate on the price? The computer assembler? The oriental carpet dealer? The phone salesman?

In most places, if a peon oversteps his authority to offer too good a deal to a customer, they settle that internally and don't bother the customer. It's not as if he wasn't found out at the end of the day...

Re:Make TOS changes manually (1)

xelah (176252) | more than 2 years ago | (#37504778)

IIRC (and IANAL) in the UK you're mostly right but it depends on who the person is. If the receptionist tries to sell you the building you shouldn't expect to end up owning it. It has to be someone you'd expect to be able to make the offer, based on job title, etc. I don't know where the dividing line is, but I do know to be very careful about the promises I make on behalf of employers...

Re:Make TOS changes manually (1)

xelah (176252) | more than 2 years ago | (#37504736)

Seller wants $50. You instead hand the seller $40, but the seller still hands you the merchandise without comment. Looks like he accepted your counteroffer...

That may be true. But suppose you 'hand' a vending machine asking for $1, say, 20p instead, and through some flaw this triggers the mechanism which gives you some merchandise. You haven't offered the seller 20p and had the seller accept it because the seller isn't present and you're not interacting with the seller. You're interacting with a machine owned by the seller. It's obvious what offer the seller is making because they've set the machine up accordingly. It's obvious that you've removed the goods without the seller's permission.

The situation in TFA is analogous to this one, not an interaction with a human shop assistant. A human shop assistant is an agent of the seller and may be able to bind it to agreements. Machines are not.

Re:Make TOS changes manually (1)

KDR_11k (778916) | more than 2 years ago | (#37503822)

For EULAs it doesn't matter that they don't grant you permission, it's not their property at this point (not their physical property and intellectual property is not enough to stop you from using the software).

Re:Make TOS changes manually (1)

xelah (176252) | more than 2 years ago | (#37504788)

But you still need a licence to, for example, copy software from installation media to hard disc, or hard disc to memory. In the UK, anyway. You could argue you got an implied one when you bought the software and don't need a second one - I've heard of that being a theoretical possibility but I have no idea if it has survived a court - but I believe you could still get caught out if you happen to already know the publishers usual terms of business.

Re:Make TOS changes manually (1)

redelm (54142) | more than 2 years ago | (#37504080)

Certainly I have communicated the counteroffer -- I pressed the "I Accept" button, which I presume indicates the text of the offer which I am accepting. They should adjust the behaviour of their pgm/website accordingly. I'm no Javaskript expert, but I presume they coded their website correctly, or at least that they cannot blame me for any mis-coding. No, I do not modify their JS.

The modifications I make are minor, generally reasonable and could not be reasonable construed as a frivolous counter-offer meant to obviate contract. This is not sophistry.

And yes, pre-paid software is a very different thing. Click-thru's are void since they represent attempting to impose additional terms after contract was established (sale). UCITA did not pass most states.

Contract of Adhesion? (1)

Anonymous Coward | more than 2 years ago | (#37502664)

I'm not sure the degree to which a TOS of this nature has been tested in court, but it's my understanding that a contract drawn up by unequal parties in which one sets the terms and the other has the options to agree or disagree is called a "contract of adhesion." In such cases, special scrutiny is paid to the contract, and the end user would often get the benefit of the doubt.

I'm not a lawyer, but I would guess that there's some kind of doctrine of reasonable expectation that you could apply in this case. Hardly anyone reads the TOS, and companies often reserve the right to change a TOS at any time. I'm not sure how legally defensible that is.

Re:Contract of Adhesion? (1)

Doc Ruby (173196) | more than 2 years ago | (#37502754)

I don't think there's any TOS that's only clicked, is necessary to get started, and is practically never read by any of the large numbers of people who click through it, that has even been tested in a US court to bind the clicker to its terms. I do remember quite a bit of "shrinkwrap license" and "clickwrap license" cases that were rejected by the court as nonbinding.

Happens to us (2)

Adam Appel (1991764) | more than 2 years ago | (#37502670)

We have a service based business and we have a client that every year crosses off parts of our TOS and sends it back. We ignore it. If you don't agree to our TOS or want to change it in any way you just don't get the service. as it is they simply cross the part off their risk management doesn't like (hold harmless and limit of liability) and send it to us. We sign nothing. Our insurance mandates our clients agree to those two clauses or they are not covered, it's that simple.

Re:Happens to us (1)

hawkinspeter (831501) | more than 2 years ago | (#37502786)

Do you still provide service to that client? If so, then I guess that would count as agreeing to their modifications.

Re:Happens to us (1)

sjames (1099) | more than 2 years ago | (#37503444)

Since you call them a client, I'm guessing you *DO* in fact, provide the service in spite of the crossed off terms. That is, you indicate your acceptance of the amended contract.

Your insurance insists that your clients agree to those two clauses or YOU aren't covered. You might wanna consult a lawyer about that!

Local TOS DB (1)

Doc Ruby (173196) | more than 2 years ago | (#37502744)

What would be very helpful, and not require any lawyers or negotiations, would be a local TOS database I'd keep. When receiving an offered TOS, my local DB would capture it, and include metadata like whether I signed it, any other info I gave associated with it (address, email, credit card, account# etc). And when revised TOS is sent/offered/published to me (or in general), it would capture the new version, showing me changes. Then I might be able to track what were the TOS was that I actually agreed to, and the changes, and whether or not I agreed. Which would help protect me if the TOS were ever enforced on me in ways with which I disagreed. And compare new TOS to old ones I'd accepted or rejected, helping me decide what to do with the new one.

A really effective version would require that any TOS, to be acceptable, be delivered in structured XML, in a standardized or consensus dialect. Then I might actually abide by them, and hold the issuer to them. Which would require lawyers and negotiations up front, to move contracts to this usable modern basis. So lawyers and corporations that abuse with them would resist, but probably there would be an evolution to them eventually.

I thought something like this would have been a browser plugin already. At least to save typing and scrounging for personal info to supply. But maybe applying the approach to smartphones will catch on, since that kind of typing and scrounging is a real barrier in those limited form factors.

All contracts are negotiable (2)

Anon-Admin (443764) | more than 2 years ago | (#37502878)

I dont see how this will have any standing. I could be wrong IANAL but I am related to a few. ;)

Here is how it works with software licensing agreements. Should you ever decide you want to change the terms.

#1) Print the licensing agreement out.
#2) Change some wording in the agreement. Especially the section about being able to sell copies.
#3) Write a nice letter stating that you have amended the agreement and have sent them a copy for approval. Make sure you include the statement "Failure to respond in 30 days is acceptance of the amended terms."
#4) Send the letter certified mail return receipt requested.
#5) Wait!!!

In most cases they will send you a letter back stating that they agree with the terms, that the terms are unacceptable, or that they do not allow negations of the contract.

#1) They agree with the terms: WOOO HOOO!!! Start selling under the new license and PROFIT!
#2) The terms are unacceptable: Normally comes with what terms they are willing to budge on and which they are not. If you agree, write them back and use the software.
#3) Negations are not allowed: Demand a refund of all monies paid for the product.
#4) 1 out of 10 do not respond: Provided your change allows for the re-distribution of the product, PROFIT!

Re: Failure to respond in 30 days .. (1)

roguegramma (982660) | more than 2 years ago | (#37503196)

Well, failure to respond in 30 days does not equate to accepting the contract.

Even a court friendly to consumers would decide that way.

Otherwise, there would be step 5:
Receive contracts by random parties where you agree to send them money.

All contracts are negotiable, but not all are usef (1)

DarthStrydre (685032) | more than 2 years ago | (#37503364)

The rub in 2 and 4 comes when you STILL have to click the checkbox to make the software run. Nothing that they send back in paper form will get you past a hardcoded EULA/TOS agreement. By clicking OK even when you have the paper document in hand, you are explicitly accepting the original agreement and the company laughs at you.

Re:All contracts are negotiable, but not all are u (1)

mrchaotica (681592) | more than 2 years ago | (#37504292)

I argue that clicking the checkbox does not constitute acceptance of a contract. Clicking the checkbox to make the software run is a mere mechanical act no different than plugging in an appliance or turning the ignition key in a car.

Not so much (1)

lurp (124527) | more than 2 years ago | (#37503142)

Yeah, you can't unilaterally change the terms of service for a site you're using. If you use the site, you're bound by their existing TOS. If you want to have those terms amended, you'll need to discontinue use of the site until / unless they accept your changes. And good luck with that from your bookmarklet.

Re:Not so much (1)

sjames (1099) | more than 2 years ago | (#37503466)

But by responding to my GET and POST requests, they agree to MY TOS.

Re:Not so much (1)

ArsenneLupin (766289) | more than 2 years ago | (#37503512)

Yeah, you can't unilaterally change the terms of service for a site you're using.

Neither can a site unilaterally impose terms on its visitors. They are free to submit a counter offer. It's called negotiation. Tough luck if their computer is programmed to ignore such counter offers. But they win with most other users who are "programmed" to click OK on the TOS without reading it, much less understanding it.

So, if the company can say: "sorry our computer ignored your counter offer", then users can say "sorry, I was in a hurry, and just blindly clicked OK to make the thing work".

Most consumer contracts a Contract of Adhesion (2)

hwstar (35834) | more than 2 years ago | (#37503294)

A consumer contract for a cell phone, or other consumer items is a contract of adhesion and is presented on "take it or leave it" terms with no chance of modification. Strike outs will not be accepted as they typically have to be reviewed by a legal team, and the cost to do so exceeds the value of the new business in most cases. See: http://en.wikipedia.org/wiki/Contract_of_adhesion#Contracts_of_adhesion for more details.

This Is Really Complicated (0)

Anonymous Coward | more than 2 years ago | (#37503398)

The website tells the world that it will agree to a contract in the terms expressed on its website.
The user has two choices.
The first choice is to accept the contract.
Your only other choice is to reject the contract. You can reject the contract in two ways: (1) by not accepting it; or (2) by making a counteroffer.
An alteration of the terms of service is a counteroffer. It is something that the website owner can either accept or reject.
Rejection is easy to understand--the website doesn't deal with you on your terms.

The important thing to remember is that at the moment you submit your contract to the website person, there is no contract. One thing must happen before a contract is formed and that is acceptance of the contract by the website person. Acceptance is a fact question and the law governing computer acceptance may be modified by federal and state laws.

The Ron Pauls out there will want to argue that the contract was accepted the moment the website operator shipped the stuff--even if their modification involved chopping zeroes off the end of the purchase price. The website operators are going to argue that they never agreed to your counterproposal and that the goods shipped without acceptance. The answer to this question will be fact specific and may require expensive litigation.

What if the website person sends his own contract, incorporating his original terms, with the contract? Then the ball is back in your court. Are you going to accept the goods or reject them? How will the return be accomplished?

What if the original contract explicitly states that it is not subject to modification?

Practically speaking, the only way this can work from the end user's perspective is if the end user actually communicates with the company and gets the assent for the modified deal from a human being. Courts are NOT going to enforce a "gotcha" contract created by end user modification.

Sale of Goods Act (0)

Anonymous Coward | more than 2 years ago | (#37503704)

Read your state/country Sale of Goods Act.

In all places I have lived, a EULA is unenforceable, due to an act.

Of course I read the TOS ... (2)

Alain Williams (2972) | more than 2 years ago | (#37504588)

and a right pain it is too. I did not like the article saying:

Have you ever read any of the terms of service documents you agree to when you sign up to your favorite web apps?
Of course you don’t.

If I don't like them, then I don't click ''I agree'' and go somewhere else or don't use the service. If the TOS are too complicated then I don't accept & don't use them. That is why I don't use Amazon, Pay Pal, Skype, ... I did not like their TOS.

But I do appreciate that most people do not have the time or inclination to understand these things. The problem is bigger than that, the TOS for basic services (eg: electricity, water, ...) can also be one sided, but tend not to be as bad. In the UK consumer legislation has taken out the worst from these and the courts tend to not allow them to get away with some of the other bad clauses; but the service companies still use them to try to bluff the consumer to allow them to over charge them or provide a crap service (which is often what it is all about).

Worthless BS (1)

DaveV1.0 (203135) | more than 2 years ago | (#37504614)

The ToS is a contract that is already signed by the company/person running the site. If you make changes and accept the changed ToS, you have changed the contract after one of signing parties has signed without said party's permission. As soon as one accepts the terms, one is committing fraud and if one accesses the site after such an act, one may be violating the Computer Fraud and Abuse act.

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