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TOSAmend Automates Counteroffer Terms For Service Agreements
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."
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.
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. :-)
Enable 3D printed prosthetics!
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.
A logical alternative to the false dichotomy: Agree / Disagree.
Obi-Wan: "I felt a great disturbance in the Force, as if millions of voices suddenly cried out in terror and were sudden
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.
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.
Try reading what you link to.
This has been tried. See the story of "TakemymoneyandnoEulasapply@aol.com." That seems to have had no effect. For an overview of current law, see this legal commentary on terms of use.
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 on that one.
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.
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.
Don't thank God, thank a doctor!
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)
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.
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.
They come in the dark, only in the darkest.
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.
"Slashdot - News and Chat Sites Deviant". (Click "homepage" link above for details).
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.
--
make install -not war
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!
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.
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.
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.
Hey don't blame me, IANAB
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.
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.
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.
Read your state/country Sale of Goods Act.
In all places I have lived, a EULA is unenforceable, due to an act.
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.
"[Regarding the 'cloud,'] ownership was what made America different than Russia." -- Woz
and a right pain it is too. I did not like the article saying:
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).
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.
There is no "-1 offended" or "-1 you don't agree with me" mod options for a reason.
I foresee a new market in mild date rape drugs coupled with sexual activity consent forms.
That's Trollese for "There is some contravening legal precident".
In a paper contract, if I want to amend something, I amend it, initial it, and sign. If the other party signs, the contract is valid as amended. This works for any paper contract.
Under the law, is a valid contract offer required to provide a mechanism for counter offering? Or is that a "feature" of paper contracts that has just always existed for free and so it never had to be legislated that it must be possible? Has any one ever asked whether presenting a EULA is legal if the reader has no ability to propose amendments?
No, I agree with the GP post. It would seem like any company that accepted your amended text would also have to send you an amended EXE to click through, otherwise you just renegotiated back to their original terms. In the case of a website, they'd have to respond by giving you a new URL.
I suppose it *might* work if your on-paper amendment included a clause, "And the checkbox in the software is just an ignition switch and this document trumps the legalese therein."
The licence for the software is conditional on acceptance of the terms. By making a counteroffer, you reject the terms for the licence, and can't use the software lawfully unless the holders of the copyright accepts your counteroffer. Use the software, and your legal position is analogous to downloading a crack from piratebay.
And clearly they never will. This is very much a case of shooting yourself in the foot. And as for offering a refund, whether you are entitled to one from the retailer is doubtful.
David Thomas
http://www.fashion-photographer.org
Think about what's going on here: when you buy a piece of software, you enter into an agreement with the store by which you agree to exchange money for the software. Once you've done that, you own that copy of the software, and you have the right to do whatever you want with it within the bounds of the law. No third party -- such as the publisher -- has any standing to impose extra terms. Why should they? Since you already own the copy of the software, they have no consideration to offer you (and they can't "offer" the ability to use the thing you already own; you already have that right by law). Therefore, that thing that calls itself an EULA is not a legal document, it's just meaningless bytes.
"[Regarding the 'cloud,'] ownership was what made America different than Russia." -- Woz
By digitally receiving this amended contract, and upon allowance of The User* to use The Service*, you agree to the modifications to the Terms of Service agreement as outlined herein.
[ Insert your own rights limiting crap; Including them not having the right to disconnect service without written notice submitted in triplicate, or sue you; Also include, but do not limit, your right to revise the contract at will, without prior notice, for TOS revisions they must ask you upon each use of the service for a copy of your revised TOS; failure to do so and permitting use of their service constitutes agreement to your revised terms. ]
*As defined in Section 4 of your Terms of Service agreement as of [insert date].
For Applications: $_ =~ s/service/Software/gi
Or EULAs. There is no AUTHORIZED acceptance, nor any requirement to be an authority with the power to accept for them. All that is required is that you continue to use the serves: Acceptance is assumed.
So if you continue to get the service, Acceptance is likewise assumed.
Since the copy is not a copy that is controlled by copyright.
There are other arguments that hold against the EULA:
1) You don't copy the software, the installer does, a program that is authorised by the copyright owner to do the copy
2) If they didn't want you to make a copy, then why do they insist on your making a copy (installing) before you're able to run the game? Consoles don't have to copy their disc contents to play. That they are forcing you to copy, it is an implicit agreement that you will make the copy