Examining the new site ToS;DR ‘Terms of Service; Didn’t Read’

There is a very exiting new service online called ToS;DR ‘Terms of Service; Didn’t Read’. With it, companies offering services over the web have their TOS pages parsed and line items rated.

Here is an example of some of their rated services:

GitHub Class B
↑ Changes can happen any time, even without notice
↓ Your personal information is used for limited purposes
→ GitHub requires cookies
→ Choice of law: California
↑ Your account can be suspended and your data deleted any time for any reason
↓ You don’t grant any copyright license to github
↑ You must provide your legal name
↑ You shall defend and indemnify GitHub
↓ GitHub will notifiy you before transfering your information in event of merger or acquisition
↓ Transparent security practices

Delicious Class D
↑ Only for personal and non-commercial use
x No Right to leave the service
↑ Your content can be exploited
↑ Non-transparent use of cookies and third party ads
↑ Your personal information are an asset for business transfers
↑ Third Parties

Twitpic Class E
↑ Reduction of legal period for cause of action
↑ Your content is for Twitpic and their partners
x Deleted images are not really deleted
→ Jurisdiction in Delaware
↑ You indemnify Twitpic from any claim related to your content
x Twitpic takes credit for your content

Those familiar with Libertarianism and BLOGDIAL can guess what we are going to say about this.

First of all, the people who run this service do not know what rights are. In the Delicious entry for example, they say that users have ‘No Right to leave the service’. There is no such thing as a ‘right to leave a service’; you may have have the power to leave a service and to stop using it, but not a ‘right’.

The promises made to you under contract on a website are a private matter of contract between you and the people or company that owns that site. If they give you the power to delete your account, that is a good thing, but you have no right to other people’s property, and no right to force them to offer you a service on any particular terms.

The difference between a right and a power is an extremely important one because (separate from mistaking a right for a power being entirely wrong) when you assert that someone has a right to something, the next step is that the violent State is called in to force people to do what they would rather not do, like force websites to offer an opt out on cookies.

Lets go through these bad entries one by one:

Github:

“Changes can happen at any time, even without notice”
Github is a privately owned website. The people who run it have the absolute right to change anything at any time. If you do not like it, do not use it and go and create your own web service based on Git.

GitHub is not lying to its users. It tells you in advance what it is going to do with the data you store there. They are completely free of evil in this respect. They are responding to the needs of their users at a very high standard. This is why they are hugely popular, and why they come to the attention of people who want to attack them.

You must provide your legal name
I absolutely loathe sites that require your legal name. I closed our account at Quora and deleted all of our thoughtful answers there because Quora admin demanded that we use real names and not the user name ‘Irdial’. Nevertheless, the position on this is clear; Quora owns their servers and service, and I have no right to demand anything from them. It is up to me to either change my user name or quit the service. The same goes for GitHub. If you do not like their ‘Real Names’ policy, do not use GitHub.

You shall defend and indemnify GitHub
Once again, if you do not want to defend and indemnify GitHub, do not use their service. Also, try and think about it from their point of view; if some user ‘steals’ source from somewhere and posts it on GitHub, this exposes the owners of the service to the possibility of an infringement lawsuit and crippling damages. In order to protect themselves from this, they need to add this language to protect themselves from stupid or malicious users. This is perfectly reasonable and logical, and is in no way an attack on GitHub users.

Conclusion
There is nothing in the GitHub TOS that is unreasonable. They are open about what they are doing, and provide an extremely useful service that you do not even have to own an account on to be able to pull some source. They, as the property owners of the service, can operate it under any terms that they like.

Delicious:

Only for personal and non-commercial use
Non commercial use restrictions make perfect sense; they have to find a way to monetize the service. If you don’t like it, store your bookmarks elsewhere, like in your browser.

No Right to leave the service
There is no such thing as a ‘right to leave the service’, and if you delete all of your entries, that is the same as leaving, and you can do that. Once again, use the word ‘rights’ correctly and understand property rights. Every item where this fallacious ‘Right to leave the service’ is listed as a defect in a TOS, ToS;DR is in grave error.

Your content can be exploited
What does ‘exploited’ mean? This service is out to make a profit. If you are socialist, and do not believe that people or companies should make a profit, that’s fine, but you cannot force other people to live by your standards or contract under terms that are not acceptable to them, and it is dishonest to condemn or vote a site’s TOS down due to this. And again, if they tell you in advance that they are going to use your bookmarks to make money, you can choose not to use their site and service. Some people take this bargain and accept it as the price of using the service. There is nothing inherently wrong in this.

Non-transparent use of cookies and third party ads
The browser running on your computer can be set to refuse cookies. It is up to you to make this setting, and to refuse to accept cookies from sites. You do not need the State or anyone to hold your hand like a child, and if you do, that is your problem, not the problem of Delicious. Caution must be the default on the web.

Your personal information are an asset for business transfers
Once again, business as a practice is not in and of itself unethical, and if you believe so, that is a personal prejudice that you should keep to yourself, if you want to remain objective. Business is not harmful!

Third Parties
With tea and cake presumably.

Twitpic:

Reduction of legal period for cause of action
Twitpic needs to do this to protect themselves from Ambulance Chasers and hostile collectivist users who like Class Action Lawsuits. If they do not have this clause, the service will be attacked for sure. There is no standard legal period for a cause of action, and in jurisdictions where there is, there should not be. Its up to you to either accept or reject these terms.

Your content is for Twitpic and their partners
They need to find a way to monetize the content on their service, otherwise it will cease to exist. This is entirely reasonable, and you have advance warning that they are going to do this.

Deleted images are not really deleted
Once you upload your pics to their service, they can do with them what they like under the terms of service. It they are lying about deleting photos, this is fraud, and they should not do that. This is a correctly flagged item, of the kind this site should focus on.

You indemnify Twitpic from any claim related to your content
Same as for Delicious. Content in a copyright world can be a hostile trojan horse, and they need to protect themselves. If you really want to make these clauses redundant, advocate for the end of the State.

Twitpic takes credit for your content
If you give your content to Twitpic under terms that say they will own your pics after you upload them, this is an explicit contract. IF they do so without telling you explicitly they are going to do this, once again, this is fraud, or ‘passing off’; its illegal and immoral. Once again, this is a true example of a correctly flagged flaw.

This is a great idea for a service clarifying and distilling TOSes for the masses, but there are some problems with the thinking behind the categorisations and descriptions of the problems described in each TOS where a fault is found.

Some faults are not faults at all, but simply terms of service designed to protect the service owners, and others are actual flaws. A clear set of ethical standards needs to be applied to each TOS, one that is free of bias.

It would be interesting to write a plugin that flags up TOS flaws or changes on every site you visit, so that as you surf the web, you are alerted to potential offences against your sensibilities.

On sites where you already have an account, where the TOS has changed, you could be alerted that this has happened for you to review. Im sure someone has already though about this.

If these people want to really help both users and the sites they visit, they need to think hard about their assumptions on the basic parts of this idea; who owns websites, what are rights, what obligations do sites have to users of their services? All of the answers to this can be found in ‘For a New Liberty‘ which spells out very clearly in simple language, everything you need to know when writing your TOS.

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