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

[kisielk]

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

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

[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

[tsa]

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

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.

Oh, The Temptation

[The Dobber]

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

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)?

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.

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?

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.

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. ...

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.

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.

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.

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.

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.

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.