Worst Terms of Service Ever

Popageorgio writes "Yale's Lawmeme features the most oppressive, paranoid web site TOS ever, found at the Central Pacific Railroad Photographic History Museum. '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 . . . . You agree to use only the provided permissions e-mail address (or other e-mail links on this website, as appropriate) and not to telephone us or content contributors with permissions or other requests, nor to attempt to circumvent the provisions of this agreement, and telephone calls placed in disregard of the foregoing will be charged at two hundred fifty dollars per telephone call.'(Emphasis theirs)." The museum acknowledges this is crazy, too -- read on for more.

The legal birdseed here (appropriately and manically illustrated in the manner of The Secret Guide to Computers) makes the copy on Dr. Bronner's Soap look sane; the user agreement ("Click on any link or image to indicate "I ACCEPT" the USER Agreement.") begins with a little blurb about why it's necessary, and asks you not to be put off by the legalese. That might seem disingenuous at first, but buried in the text is this note, too: "[Yes, we know that you think that all this legalese is completely ridiculous, and we think so too, but we also believe that current law unfortunately requires that it be done this way; So if you know of a better, simpler 'legally correct' way, do tell us how!]"

(Besides this amusing legal stuff, the site is actually very interesting, at least if you enjoy U.S. history and trains.)

Comments

Hold up

[The Real Chrisjc]

Hmmmmm. . ..I wonder how this will hold up in court?

Re:Hold up

[Anonymous Coward]

I always "Tab" to the "Click Here to Accept" link and then press "spacebar", thus passing by the whole "clicking" issue altogether.

Re:Hold up

[Zeinfeld]

This reminds me of an old alt.flame thread when Kebin was trying to claim that people had agreed to some assanine contract by reading his posts.

The issue here is whether this is contract of adhesion. Are the terms usual? Is it likely that the user actually agreed to them? Is there a consideration?

I don't think so.

Re:Hold up

[jonfromspace]

I don't click links anymore, I type them into IE!

Sorry /troll

Re:Hold up

[crabpeople]

cleaver, but your still clicking keys.

i just say 'tab, tab, tab, tab, space' into my voice recognition software and viola!

Re:Hold up

[yourmom16]

But your speech is a superposition of clicking noises, as any continuous sound wave(that is one that does not involve teleporting particles, or infinite forces) can be expressed as a superposition of sound waves that on their own would be clicking sounds.

Re:Hold up

[bluGill]

Maybe, but my Atari400 with that membrane keyboard finaly has one good point: it doesn't click. (of course I had to void my warrintee by disconnecting the speaker to get it to stop clicking, but now there is now noise. I suppose the 90 days for a computer manufactured in 1981 is long gone though)

Now I just need to hook it up to the web... Doable, but many web pages are more bigger than my ram.

Re:Hold up

[Anonymous Coward]

What? Your voice reocognition software plays a stringed musical instrument?

Re:Hold up

[kisielk]

I think he means that he speaks in to his viola. Definitely a strange way to interface with a computer.

Re:Hold up

[Anonymous Coward]

But if I don't accept the agreement, then I also am not accepting that clause that says clicking on a link accepts said agreement.

Re:Hold up

[dekashizl]

i just have my thai hooker click ACCEPT for me. she's under 18 and not even a citizen, so i'm pretty much in the clear.

Re:Hold up

[jonblaze]

i just have my thai hooker click ACCEPT for me. she's under 18 and not even a citizen, so i'm pretty much in the clear.

not so. she's an agent to whom you have given actual authority. you--as the principal--are therefore responsible for any contracts that she enters on your behalf by clicking "accept."

i know the parent was just joking, but it's amazing how many people think that getting around a contract is just that simple.

Re:Hold up

[nomel]

what if he left his keyboard out in the rain. Then it would be an "act of God".

"In the news, the Central Pacific Railroad Photographic History Museum is sueing God for a breach of contract."

Re:Hold up

[cfulmer]

IMHO and IANAL (but I hope to be one in 2 years), so don't take this as legal advice:

It won't hold up in court. Liquidated damages are supposed to be an approximation of actual damages incurred. If they're not, then they amount to an illegal penalty, which courts do not enforce. Here, neither the $5M nor $250/phone call is an approximation of their actual cost. As a result, those "liquidated damages" would be tossed out.

Along that lines, if you cancel your cell phone contract 2 days before it expires, the cell phone company is going to have difficulty proving that their damages for those 2 days amount anywhere close to $200.

If you're renting an apartment and want to get out of the lease early, go and find somebody else to finish off the lease for you. You ought to be able to get out of it because the new person means that they haven't suffered any loss.

In theory, theory and practice are the same. In practice, they're different. The problem that you may end up with in playing these games with either your cell phone provider or landlord is that you may need to go to court to resolve it, and that's probably more expensive than what you're saving.

Re:Hold up

[Paradise Pete]

my Atari400 with that membrane keyboard finaly has one good point: it doesn't click. (of course I had to void my warrintee by disconnecting the speaker to get it to stop clicking

Oh man, just POKE 65, 0

Re:Hold up

[Grey Ninja]

Soo... umm.... just for the sake of advancing my own knowledge of course... whereabouts do you find these underage thai hookers?

Re:Hold up

[DNS-and-BIND]

Thailand maybe? Just a guess.

Re:Hold up

[tsa]

Wow, there should be a '+5, nerd' option for the moderators!

Re:Hold up

[fucksl4shd0t]

If you add on line 3,567 in comments.pl the following line:

#@*&^ if $#KDjk^es '+5, Nerd'

Then you'll have it!

Re:Hold up

[Planx_Constant]

Only on /. could a post stating that Thai hookers come from Thailand get rated "+1 informative".

Although I do think the sarcasm is funny.

Re:Hold up

[grammar fascist]

If you add on line 3,567 in comments.pl the following line:

#@*&^ if $#KDjk^es '+5, Nerd'

Then you'll have it!

And what do you call that language? "Cuss"? "Programming With Expletives"?

Oh, wait. That's perl.

Re:Hold up

[JamesP]

As I always say... the trick is getting the CD out of the box without opening the shrinkwrap package...

Re:Hold up

[Nykon]

so does that mean if you shot somebody, the cops couldn't come after you because you chose not to agree to the law?

TOS is legally binding, so whether you think you accept the TOS or not is not the issue. The fact you click on the link to enter the site after it asks you if you agree, is an explicit agreement, meaning that "I don't accept the TOS, so there for it doesn't matter if i agree'" will not hold up lagally if you were to violate the TOS while using the site. You may say you don't accept, but but just being on the website, you say otherwise.

Re:Hold up

[dar]

hmm, would that make God your agent?

No. God is my co-pilot.

Oh, The Temptation

[The Dobber]

Think I'll call em from a pay phone, just for shits and giggles

Re:Oh, The Temptation

[diersing]

Netcraft says Apache on Linux, I'm betting (according to SCO) they're not up to snuff on licensing. Maybe SCO should contact them and ask for a piece of the action.

Re:Oh, The Temptation

[Gothic_Walrus]

No...you're doing it all wrong.

Want to call? Call collect from a pay phone. Now that would be fun...

:)

Re:Oh, The Temptation

[identity0]

No no no, don't pay the bills yourself - have someone else do it!

Call up SCO, and tell them "I want to tip you off that there is a large number of unlicensed SCO/Linux boxes at the Central Pacific Railroad Photographic History Museum. Call (phone #), and ask them for licenses - in fact call them repeatedly, they may pretend to not know what you're talking about."

Hilarity ensues.

Hrmmm...

[Ooter]

Are you sure this isn't the SCO Museum (which is hopefully soon to come)?

COLLECT

[MonkeysKickAss]

how about 1800collect or 1800 callatt

My Favorite:

[Anonymous Coward]

Do Not download or copy any images from this site.
Fortunately I didn't violate this part as I use lynx
for all www browsing. Others who use MSIE, Netscape/Mozilla,
Opera, ICab, etc. can't say the same though.

From the very bottom of the TOS

[kchoboter]

No stereographs were harmed in the making of this website.

They may as well

[Mia'cova]

They may as well ask for the moon. I doubt the even the courts read EULAs or web site agreements these days ;)

But...

[iammaxus]

telephone calls placed in disregard of the foregoing will be charged at two hundred fifty dollars per telephone call.
...
So if you know of a better, simpler 'legally correct' way, do tell us how!"


So I'm going to have to pay $250 to try to help them?

Re:But...

[chunkwhite86]

telephone calls placed in disregard of the foregoing will be charged at two hundred fifty dollars per telephone call.

I wonder if I could place this note next to my name in the phone book.

Go ahead and violate the terms of my EULA you telemarketing bastards! ;-)

Oh shit...

[gt25500]

Do not download or copy images from this website!<--- In CAPS too :o

Can anyone recomend a good lawyer?

That TOS is WEAK!

[Flavius Stilicho]

There's nothing in the TOS about slashdotting the site. If they really cared, it'd be in there.

Re:That TOS is WEAK!

[Honkytonkwomen]

Actually, about a thiord of the way down, it says:

" 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."

So I guess /. is screwed ;-)

Re:That TOS is WEAK!

[Morgon]

Actually, that seems that the poster is liable, not Slashdot.

We're on Popageorgio dime, now.

Re:That TOS is WEAK!

[bjhonermann]

Actually, I think we get to bill this all out to Yale's Lawmeme sight. Then again, I'm sort of betting that Yale's law students could get them out of this. -Brian

Reporting Errors

[osmodion]

"You agree to immediately notify CPRR.org by e-mail of any errors, ... or any other defects or deficiencies which you discover on this website . . . ."

Should I tell them about the TOS?

Too much time on their hands

[tscholz]

That is the longest TOS page I have ever seen. Looks like they have used more time on the TOS, than on the rest of the site.

Re:Too much time on their hands

[zurab]

They definitely spent more time on TOS than creating "original works" from public domain pictures from 19th century claiming copyright.

If you read the "ORIGINALITY" section they claim it requires artistic and original skills to scan the images and save them as JPEGs; not only that, but in the process, an original piece of art is created (a requirement for copyright). Therefore, even though the original images are 19th century and public domain, they are holding copyright on their scans. By agreeing to their TOS, you agree that that's the case.

I don't see how scanning public domain pictures calling them your own qualifies as an original work. It qualifies for extortion though:

- get hold of a rare public domain document/picture/book/etc.
- scan it and save scans as JPEGs/PDFs/whatever;
- lock the original public domain work in a safe;
- you've got a brand new never-expiring copyright and you didn't even have to produce anything!
- sell the art and PROFIT!!!

Re:Too much time on their hands

[ScrewMaster]

Put it this way: the only original work on the site is the TOS.

And in a hundred years there will be a Web site (or whatever passes for Web sites in the next century) dedicated to the rise and fall of the American Empire. Exhibit A will be that TOS agreement, exemplifying the self-inflicted legal quagmire that brought America to its' knees.

Re:Too much time on their hands

[duffbeer703]

That actually is a legitimate business. The problem is getting access to the original document. Mueseums typically do not allow you to take a Van Gogh off the wall to scan it.

Ever buy a print at the store? A reproduction of a work is a copyrightable work in of itself.

Re:Too much time on their hands

[dvdeug]

Ever buy a print at the store? A reproduction of a work is a copyrightable work in of itself.

No, it's not, not in the US. BRIDGEMAN ART LIBRARY, LTD. v. COREL CORP says that a reproduction of a work does not get a new copyright, because copyright is given for creative works, and reproduction, especially an accurate one, isn't creative; it's merely a reproduction.

Re:Too much time on their hands

[ScrewMaster]

{sigh} when will some Slashdotters learn to recognize a joke. Grow a sense of humor for crying out loud: not everyone is trying to make a profound statement or gain Karma. I already have an Excellent rating so I don't need to whore. Frankly, I'm surprised that I got modded "Insightful" for that comment since I was only trying to be funny. But there is more than a little truth to what I said: America is bogging down under a mass of conflicting and Draconian law.

America isn't a particularly imperialistic state, not in the sense that Russia or Britain were. Mainly because empires are expensive operations to run and we don't like the taxes. I mean, unlike a number of other historically major powers we haven't sent our armies around the world annexing other coutries. We'll eventually leave Iraq to its' own devices, and only history will show if that proves better or worse for the Iraqi people. But our time will eventually come, and whether that end is catastrophic (as in a major war in which we are the losers) or as you say, a slide to third-worldom is hard to predict. The world is a dangerous place and there are a lot of people that would like to see the United States glow in the dark for a few thousand years. Given the number of people in distant parts of the world that we feed, and the amount of foreign aid we supply, I expect that many of those same people will regret it when we are gone, but that's the way the cookie crumbles.

Re:Too much time on their hands

[kdogg765]

First off, IANAL, so this is just based on my own understanding. Just because some other case ruled on the matter doesn't mean anything. Copyright cases are decided on a case by case basis, and as such the Judge involved can disagree with a case that has precedent. Copyright cases are not that predictable. I think this is where a lot of people run into trouble with copyright. And, while a museum or a web site may not be able to hold a copyright on a piece of art, they can control access to it and make you agree to terms or payment in order to gain the access you want. Thus, it might as well be a copyright, even if the original item is in the public domain.

Re:Too much time on their hands

[quisph]

Actually, this is what a copyright lawyer would call a "derivative work," and it is always owned by the owner of the original.

That's untrue, but irrelevant. In the case of a Van Gogh, we're talking about something that is in the public domain. No one owns a copyright on the original.

This is why I can't take the Linux source, modify a single line, and claim that I now own the copyright.

You are seriously mixing apples and oranges here. Linux isn't public domain. (But if it were, you could claim ownership of the line that you changed.)

No one suggested that making a print of a Van Gogh would give you a copyright to the original painting. But a derivative work can be copyrighted. Go to your local book store and take a look inside the cover of a brand new copy of Shakespeare's complete works. You will see a copyright notice. This does not mean that the publisher owns a copyright to Shakespeare's original works. It simply means that they own a copyright to this edition, to prevent others from profiting off of the hard work that went into editing it.

This is why Project Gutenberg takes nearly all of their material from pre-1923 editions.

Re:Too much time on their hands

[Idarubicin]

So if Joe blogs makes a copy (reproduction) of a Program/ISO/Audio track, then that copy is no longer a copyrightable work ?

The parent poster is either trying to be clever, or not paying attention to the thread. We're talking about making copies of works that are in the public domain already. In Bridgeman v. Corel, the key question was whether or not digital duplicates of classic paintings were copyrightable. The court held that they were not, because

"There is little doubt that many photographs, probably the overwhelming majority, reflect at least the modest amount of originality required for copyright protection. . . But 'slavish copying,' although doubtless requiring technical skill and effort, does not qualify."

Note that the ruling applies only to the paintings on which the original copyright has lapsed. Paintings not significantly older than Mickey Mouse have not yet entered the public domain, so duplication of those paintings would still infringe copyright. Duplication of other recent works (like the ISOs you speak of) would run afoul of the same problem. Unless you have audio tracks from the nineteenth century you would like to copy...

Re:Too much time on their hands

[dvdeug]

So if Joe blogs makes a copy (reproduction) of a Program/ISO/Audio track, then that copy is no longer a copyrightable work ?

No; you don't get a new copyright on it for copying it. The old copyright is still in effect.

don't visit! scary!

[Anonymous Coward]

I read through that and at first thought, that's pretty funny, I've been
thinking of putting stuff like that on my own web site .. something about
50,000 words long and at the end say "or you may simply ignore the above and
choose the following Creative Commons license instead". The fact that it's all
old public-domain stuff, hilarious!

But looking around I began to wonder.. is it a joke or not? I'm not seeing any
punch-line.. Maybe this guy is *serious*.. but how can you take it seriously,
it defies logic. It's already illegal to make unauthorized copies, so what's
the point? And he admits that it is ridiculous.. should I agree to anything
"ridiculuous"? Would it stand up in court?

If he seriously can't come up with a shorter agreement (hint: nothing gives
visitors the right to copy stuff that isn't PD, so you don't have to do *ANYTHING*).

Then I read his replies, and I'm starting to realize, this isn't funny like
the /. poster seems to think.. this is FUCKING CREEPY. This guy scares me.

Don't visit this site, this guy is probably collecting IP addresses and he's
going to start stalking you or something. I'm almost afraid to write this..

*shiver*

WHOA now everytime I press the submit button after visiting his site,
konqueror crashes .. he's got some weird browser-crashing code or something .. wtf!!!! I'm using
mozilla to post this now. ...

Re:don't visit! scary!

[Turmio]

Relax, please.

WE REGRET THAT DUE TO THE COPPA LAW, CHILDREN UNDER THE AGE OF 13 YEARS ARE PROHIBITED FROM CONTACTING THE CPRR MUSEUM BY E-MAIL OR OTHERWISE, AND REQUESTS FOR HOMEWORK HELP OR OTHER INFORMATION ON BEHALF OF SUCH CHILDREN MUST COME FROM THE CHILD'S PARENT OR LEGAL GUARDIAN. (While we're on the subject of dumb laws, we should point out that we are unable to utilize the child safe .KIDS.US domain because by including censorship provisions in the Dot Kids Implementation and Efficiency Act of 2002, Public Law No. 107-317, "to prohibit hyperlinks in the new domain that take new domain users outside of the new domain," Congress made it illegal to link, for example, to the Library of Congress or the National Archives website, etc. from any .KIDS.US website.)

Based on for example that snippet (2nd word REGRET has this link) one might conclude that it isn't that serious.

I should be racking up money....

[Prince Vegeta SSJ4]

since all of you unsuspecting /. ers have agreed to my license terms muhahaha

As of 8:16PM EST on 2.7.04....

[Flavius Stilicho]

There were 724,970 Visitors since 2.15.99.

As of 8:16PM EST on 2.8.04... they're going to need a bigger hit counter.

The TOS covers everything

[jdkane]

... except re-posting some of the TOS on other sites like Slashdot.

Too long...

[Da Weave]

With a TOS that long, who has time to check out the rest of site?
and no, I didn't RTFTOS, not completely at least.

NBA Tickets

[herko_cl]

I bought NBA tickets a while ago via the web (for a team that shall remain nameless). I received an email with the transaction details, and below it says...
"This ticket is a revocable license.The holder, on behalf of the holder and any minor accompanying the holder (individually and collectively, the "Holder"), agrees to all of the terms hereof."
Then it goes on in excruciating detail about all of the stuff I can't do with the tickets I just purchased, and how by buying a ticket I grant them permission forever to use my image in whatever manner they see fit without paying a penny, etc, etc. By word count, that email is 19% transaction confirmation and 81% legalese.
The nice thing is that "This ticket cannot be replaced if lost, stolen or destroyed". WTF???? They made it patently clear I had bought a license...
Just thought it was sorta funny, in a sad way, and somewhat ontopic.

Re:NBA Tickets

[smkndrkn]

Pretty standard...

I went to the AFC Championship game (Patriots vs Indy) on the 18th and the back of the ticket reads (Spelling mistakes mine since I typed this manually :)):

This ticket and all season tickets are revocable licenses. The Patriots reserve teh right to revoke such licenses, in their sole discretion, at any time and for any reason. Patriots may refuse admission to, or eject, any ticket holder without refund if the holder fails to comply with any applicable rules or terms, or is deemed to be disorderyly. Inappropriate behavior and/or abusive language may result in ejection (without refund), arrest, prosecution, forfeiture of season ticket privileges, and other legal action. Purchase of season tickets does not entitle purchaser to renewal in a subsequent year. The holder of this ticket voluntarily assumes all risks of property loss and personal injury incident to the game or related events. ANY NON-LICENSED INDIVIDUAL, RESELLING THIS TICKET BY ANY METHOD INCLUDING WITHOUT LIMITATION, IN PERSON, ON AN AUCTION WEB SITE, OR OTHERWISE OVER THE INTERNET, AND ANY LICENSED INDIVIDUAL OR ENTITY RESELLING THIS TICKET IN VIOLATION OF APPLICABLE LAW, IS SUBJECT TO ARREST, LEGAL ACTION AND LOSS OF SEASON TICKET PRIVILEGES. All sales are final. This ticket cannot be replaced if lost, destroyed or stolen. Season ticket accounts can not be transferred or split. No person, regardless of age, may enter the Sadium without a ticket, and re-entry is prohibited. The Patriots expressly prohibit the use of tickets for advertising and promotional purposes (including contests and sweepstakes or other trade purposes) The ticket holder will not transmit or aid in transmitting any description, account, picture, reproduction, or other depiction in any media now or hereafter existing, of all or any part of the football game or related events to which this ticket admits holder. The Patriots and the NFL reserve the right to seek criminal prosecution of, and commercial damages from, any person who engages in any prohibited ticket use. Commercial damages will include, but not be limited to, the price charged by the Patriots for similar uses. Patrions may not bring umbrellas, alcoholic beverages, food, bottles, cans, containers, irritants (e.g. noisemakers), cameras, visual or audio recording equipment, or other inappropriate items into the Stadium. The holder grants permission to the NFL, the Patriots, other participating clubs, NPS LLC, and their designees to use the holder's image, likeness and/or voice in connection with any broadcast (live or recorded) or any other transmission or reproduction of the game, in whole or in part, and for any other purpose whatsoever, including commercial purposes. Dates and times of games are subject to change without refund.

Sounds similar. The best part is I'm not a seasons ticket holder...I bought these tickets (3x $325) from a ticket agency who no doubt bought them from the seasons ticket holder...who likely sold them against these rules.

Face value: $95.00

Not a bad mark-up either eh?

It's a JOKE

[wobblie]

see their reply to Yale

A damn good joke too, I might add.

Re:It's a JOKE

[kris_lang]

It's not a joke. Look at the text you pointed to: It is very expensive and time consuming to acquire and artistically
restore historic photographs, and we wanted to share thousands of
these wonderful images by placing them online for free viewing by the
public without inadvertently giving away the publication rights which
need to be retained to make our and other museums financially viable.
They have in fact done more than simply scan public domain images. They have scanned and cleaned up public domain images: this cleaning up and de-noising is what constitutes the "creative" aspect of their work. They want to retain their copy-rights (see what the word means now?) to be able to reproduce these pictures possibly in book format and sell them to recoup their expenses and perhaps also for profit.
If they didn't have TOS that said DON'T COPY THESE, THESE ARE OURS, someone else could come along and take their photograph clean-up work and profit from them giving none of the benefits of the work to those who produced their work. Now I agree that I can't claim to know how much work they did unless I could also see what the photos' scans looked like before the clean up.
And as for their phone number call charge, it's effectively the way to stop people from spamming their phone number. They're saying: Listen, we're NOT offering licenses to reproduce these images in any other medium to anyone else, DON'T BOTHER calling us to ask for this. IF YOU WASTE MY TIME by calling me at this number, I'll CHARGE YOU.
Isn't this exactly what most ./'ers are ranting for on the other stories about unsolicited faxes and unsolicited emails? I may not agree with all of the TOS of that site, but I can at least see the necessity for this from their point of view. They're allowing amateurs to look at these wonderful photos which they've cleaned up, but THEY'RE NOT RELEASING THEM under a BSDish license which would let someone else profit from their work, and they're making it clear that everyone visiting the site is made aware of this.

stupid terms of service and the court

[segment]

You know I always wondered if I decided to create a hellishly long page called a term of service, which most people will never read, and insert the term "You agree by clicking on the link to pass over your life savings to $NAMEGOESHERE" if it would hold up in court.

Call it stupid, moronic, but according to these so called terms of service agreements, if someone did click on the link, in theory I should be able to track down users via their ISP's and stake my claim.

Oh well... back to real news "Priests need love too"

Re:stupid terms of service and the court

[Anonymous Coward]

I'm pretty sure your post was in semi-jest, and IANAL, but here's my $0.02.

Terms of service bind you in a contract with a company or individual. These terms, while defined by the company, need to be within reasonable limits and with a justification. For instnace, if you bail out of a cell phone contract early, it is reasonable that they charge you $200 for what you would have brought in over the next 2 years of your contract.

Also, and i may have seen this from watching too much Judge Judy, but because something is in a contract does not mean it is binding. For the obvious example, if someone had a contract that required an illegal activity (like human slavery or prostitution) that contractual agreement is non-binding. However, i am unclear if the entire contract becomes null and void; I believe soley that clause or agreement is voided.

As someone who hardly issues T.O.S. for client's websites, does anyone have a suggestion on a good medium point for T.O.S's?

Re:stupid terms of service and the court

[wik]

IANAL, but I am a small-time landlord. If something in the contract is illegal, that does not invalidate the rest of the contract (although that one section may be invalid). As far as contract writing goes, it still doesn't hurt to state that in the contract, but it isn't required.

Re:stupid terms of service and the court

[Lord Kano]

The last rental agreement I signed had a clause that went a little something like this

"If any portion of this contract is deemed to be legally inavalid, only that portion shall not be enforced. I agree to be bound by the remaining terms of this rental agreement."

LK

Re:stupid terms of service and the court

[Anonymous Coward]

It is a contract of adhesion, as it is a take-it-or-leave-it offer rather than something both sides may negotiate. Contracts of adhesion are required to be reasonable, and thus that contract would not be valid.

Re:stupid terms of service and the court

[jfengel]

Right. It's called "severability". By default the contract is _not_ severable, but severability clauses are a matter of course.

Re:stupid terms of service and the court

[caluml]

if someone had a contract that required an illegal activity (like human slavery or prostitution)

Damnit - lucky for me the chains won't let her get to the computer to read Slashdot...

Re:stupid terms of service and the court

[wik]

Agreed. I should have justified that this is in Pennsylvania. The severability clause is implied in contracts here, although it's good practice to state it anyway.

Good idea actually

[avc]

There is a lot of funny stuff in it, I like this one most:

For example, if you write informally to ask us about using one or more images that you saw on the CPRR.org website and ask what the request will cost, while not specifying a price limit, you are thereby requesting and authorizing us to fill your order at a price consistent with the Use Fee Schedule and the terms and conditions of this User Agreement, and to let you know the total amount due for the license by sending you an electronic invoice which you are obligated to pay.

Next time somebody asks for my $/hour I charge big time!

Holy crap...

[602]

...this guy's got a LOT of time on his hands.

orkut (google.com)

[maelstrom]

http://www.theregister.co.uk/content/6/35375.html

Is it just me or does google just keep getting slimier?

Re:orkut (google.com)

[magores]

From the Register article... "We're assured that because Orkut runs on Microsoft(R) Windows(TM), there will be no security issues."

But seriously... Why trust google? Trust the current owners? Maybe. The Google Corporation? No.

(Check with me in 10 years. Then tell me how silly my tinfoil hat is!)

Slashdot Effect is against this agreement

[jjon]

You are not permitted to, and you warrant and agree that you will not do or facilitate any of the following:
[...]
(9) engage in any activity that may or will directly or indirectly impose a disproportionately large, unanticipated, or unreasonable load on our website bandwidth or infrastructure

Oops! Did the submitter read that? I hope the submitter didn't agree to their terms of service - they might try and charge him:

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.

Satire?

[alakon]

Did anyone notice that the first link on the page is to the "Lawyer Joke Emporium"?

Does anyone here read The Onion, or any other satire? If you didn't get the joke, go read Swift's Modest Proposal.

Apparently it's a spoof

[witlessbird]

As pointed out by one of the posters on the LawMeme site this is actually a spoof and a good one at that.
Look at the bottom of the page: No stereographs were harmed in the making of this website.
and another one: 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 CPPRs reply

[amembleton]

Their reply: http://cprr.org/Museum/Rants.html#Yale

Parody

[screwballicus]

Well, they refer to it as a "functional parody", so I'm thinking that at least to some extent this isn't supposed to be taken seriously.

Re:Parody

[PacoTaco]

Sometimes I think our entire legal system is a functional parody.

No it's not..

[bcore]

They are serious, although it's written kinda tongue in cheek. They just didn't have a real lawyer available to write it for them, so they tried to make it all inclusive.

Kill that EULA

[burtonator]

I actually wrote a bookmarklet to bypass EULAs.

It just finds he first 'textarea' and replaces the content with a given payload.

Then when you click "I Agree" you aren't actually agreeing to their EULA.


http://www.peerfear.org/rss/permalink/2004/01/03 /K illThatEULA/

Granted I have no idea if it's legal but who cares... it's all fun :)

So in this case you could hack the bookmarklet to replace the EULA with something like:

"All Your Base are not belong to Central Pacific"

and then hit the "I Agree" button.

It doesn't work for everything but at the very minimum you could search the page for "I Agree" and replace it with "I DON'T AGREE YOU INSENSITIVE CLOD!"

Gotta love the DOM!

Of course this will only work if they are checking CGI params but most web monkey's assume their HTML is readonly.

Kevin

Viewing the TOS accepts them

[jjon]

Any access to or use of this website or [...] or sending the character string "/I_ACCEPT_the_User_Agreement/" to our web server as you must do to gain access to our images, or [...] or the like, all indicate and signify that "I ACCEPT" this user agreement [...].

This is a neat trick, but I don't know if a judge would fall for it. However, later on the same page, they have an image (the SpamCop button) loaded from:
http://www.cprr.org/Museum/images/I_ACCEPT_the_Use r_Agreement/logos/spamcop.gif
So simply by viewing this page you've "accepted" the license agreement!

Punch Line, kind of

[superyooser]

But looking around I began to wonder.. is it a joke or not? I'm not seeing any punch-line.

It's in the second sentence. The first links go to lawyer joke pages.

Using this site means you accept its terms. Don't be put off by the legalese, but please read these terms and conditions of use carefully before using this website.

My guess is that the TOS are official, more or less.

Re:Your Soul

[Mod Me God]

and by clicking agree, you agree with full knowledge that you give up your mind, body, soul, finances and all property wether physical or intellectual, to the owner of (insert product or website) to do with as he/she pleases

don't you have to sign that to enrole at most universities?

Completely Unenforceable

[mpoulton]

The courts have held repeatedly that there is a "right to link" without the permission of the target. Whether agreed to or not, their license agreement cannot prevent anyone from linking to their domain. The overreaching hyperbole that permeates these terms of service is so extreme that I would imagine a court would hold the entire agreement invalid.

A Shorter TOS

[woluwedal]

Your f*cked if you've read this! (under 13's friendly version)

Oh YEAH?!

[Hwatzu]

I'm going to change my hostname to "you_agree_to_let_me_take_any_image_from_your_site .by_including_this_host_in_your_logs_and_permittin g_me_to_connect". If it shows up in their logs, it's conclusive proof that they wanted me to take things from their site.

Re:Oh YEAH?!

[vegetablespork]

You're right. It'd be better in the USER_AGENT string.

Read the source, break the law!

[BlueWire]

Comment found in the source...

<!-- STOP THIEF! WARNING: IT IS A FEDERAL CRIME UNDER THE DIGITAL MILLENIUM COPYRIGHT ACT -->
<!-- TO CIRCUMVENT THESE COPY PROTECTION MECHANISMS TO DOWNLOAD COPYRIGHTED IMAGES. -->
<!-- LEGAL NOTICE: YOU ARE IN VIOLATION OF THE USER AGREEMENT. -->

...before the nagging anti-right-click javascript code. May apply to the pop-up I am blocking too - shame that...

Click on the link to see the agreement...

[fireman sam]

I thought by forcing a user to agree to an agreement that could not have been viewed before agreement would cause the agreement to be void.

In this case it states "Click on any LINK or image to indicate "I ACCEPT" the USER Agreement." Where User Agreement is in fact a link. Hence, you have agreed to an agreement which you were unable to view before agreement.

This is the same as placing stickers on CD/DVD roms stating "by opening this packet you agree to the enclosed User Agreement". The user agreement then would go on to say "...You are to sacrifice a virgin on every full moon (or in the case of /. users, themself on the first full moon)"

Re:Click on the link to see the agreement...

[canthusus]

In this case it states "Click on any LINK or image to indicate "I ACCEPT" the USER Agreement." Where User Agreement is in fact a link. Hence, you have agreed to an agreement which you were unable to view before agreement.

You don't even have to visit the website to agree:

"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. "

But that's quite a long way down the 20,000 word document, so you may not have noticed...

Source reveals DMCA protected copyright control

[pbryan]

Interesting tidbit when you view source...

<!-- STOP THIEF! WARNING: IT IS A FEDERAL CRIME UNDER THE DIGITAL MILLENIUM COPYRIGHT ACT -->
<!-- TO CIRCUMVENT THIS COPY PROTECTION MECHANISM TO DOWNLOAD COPYRIGHTED IMAGES. -->
<script type="text/javascript" src="http://CPRR.org/no-download.js"></script&g t;

Commercial licensing of images.

[jms]

The best part is the parts that talk about how you can license images from them for commercial purposes:

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.
...
Abandoned application fee: There is no application fee, but you will be charged a one hundred U.S. dollar non-refundable abandoned application fee per e-mail for EACH AND EVERY E-MAILed "Request for License to Reproduce Still Images," permissions inquiry, follow-up, or other permissions related e-mail that we receive from you that fails to ultimately result in your licensing at least one image or other requested content, including but not limited to e-mails related to image selection, questions, billing, and collection of fees, except that no abandoned application fee will apply if you submit a complete application in your first e-mail but none of the images that you request are available for licensing. Also, we may, at our sole discretion, deem your application to have been abandoned and charge the abandoned application fee if you fail to respond to each of our e-mails within 72 hours, if you reject a license which we approve in response to your request, fail to make timely payment as required herein, or tell us that you do not want a license.

Ok, that's obnoxious and draconian. But here's the real kicker. The part that made me almost keel over with laughter

If a requested image is of lesser quality than another similar available image, we may, in our sole discretion, substitute the better quality image.

Translation: If you even ask us about licensing an image, you are obligated to pay us for the image. Then feel free to sit back, cross your fingers and hope that we decide to give you the image you paid for, instead of another image that you don't want or need.

I mean, holy freaking shit!

liquidated damages completely unenforcable at law

[kaltkalt]

Hah, five million dollars liquidated damages ... completely unenforceable. No court would even think twice about it. Large liquidated damages provisions in contracts are not enforcable.

Section 356(1) of the Restatement (Second) of Contracts (which is pretty much universal contract law across America) states:

(1) Damages for breach by either party may be liquidated in the agreement but only at an amount that is reasonable in the light of the anticipated or actual loss caused by the breach and the difficulties of proof of loss. A term fixing unreasonably large liquidated damages is unenforceable on grounds of public policy as a penalty.

From what I know, this basic principle of contract law is the same pretty much everywhere. Liquidated damage provisions are most often used to offset the cost of delay in a party's performance of contractual duties. But of course, a reasonable fixed cost must be set. Can't be a penalty, merely a means of recouping a loss.

alrighty then

[sacrilicious]

i just have my thai hooker click ACCEPT for me. she's under 18 and not even a citizen, so i'm pretty much in the clear.

not so. she's an agent to whom you have given actual authority. you--as the principal--are therefore responsible for any contracts that she enters on your behalf by clicking "accept."

Ok, then I have my cat walk on the keyboard. My cat is definitely not a citizen, and I'm pretty sure he's under 18 (at least he LOOKS under 18), and he's never been to law school so I'm willing to bet he couldn't be formally have authority as principal conferred on him in a way that I couldn't somehow contest. Of course if the cat decides to roll over and testify against me it could get ugly. I'd probably give him a good spraying with the hose.

Re:Gratitude

[Kredal]

AAAHHHH! You sent them an unsolicited email! You could be liable for thousands of dollars in damages! Quick! Hire a lawyer!

Not written by a lawyer (troll alert!)

[Permission Denied]

If you read through parts of the agreement (or rather scan through it visually), you'll see that it's not "real" legaleze, but rather sounds like some layperson trying to write legaleze. For instance, "Spamming, as well as repetitive...": "spamming" is a term a lawyer would avoid using as Hormel holds a trademark on "Spam" and asks that it not be used in this context.

I have a method for identifying legaleze, or for that matter, anything written by a lawyer: count the number of times the document uses "in the event that" and compare to the number of times it uses "if". "In the event that" is pure, useless verbiage which can in all circumstances be replaced with "if". It's simply poor writing and is not more "clear" or "exact" than "if", but I guess it's ingrained in lawyer culture, so they continue to use it.

This document uses "in the event that" ten times, but uses "if" over eighty times. Looks like wannabe legaleze to me.

Indeed, if you look at the bottom of the document, you'll find this:

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.

I guess my point is that this isn't as funny as you would think: if it were an actual lawyer writing this, it would show just how bad things have become around here, but it's not some lawyer, just some random loony.

Another possibility is that this man has just pulled off the most masterful troll in the history of the Internet by fooling thousands of Slashdot readers into rightful indignation. However, the document seems serious about some of the provisions about copying images, so this might not be the case. On the other hand, these more plausible sections may have been added specifically to ward off trollbusters.

In any case, take it with a grain of salt. You might end up looking foolish if you say that this signals the end of American civilization.