[iDC] Trebor Scholz and Paul Hartzog: Toward a critique of the social web

[Fatima Lasay]

At 07:08 PM 11/4/2007 -0700, Brad Borevitz wrote:
>  the uncertainties of ownership under the law are
>obscured in the dense text of TOS agreements that hardly any user reads. our
>assent to these terms is coerced, and purely formal. (i have long wondered
>if anyone has critically examined issue of the meaningless assent to these
>ubiquitous documents.)

Hi Brad,

Am re-posting this as per Trebor's request with a short excerpt and the 
link below, a take on Facebook's TOS.

There are efforts to provide opensource alternatives to 'closed' social 
network software, although Facebook and the like try to make their user 
database portable (as well as open up to third party services) - so that 
Redhat's Mugshot <http://mugshot.org/main> for example can serve as portal.

FOSS social networks also include: People Aggregator 
<http://www.broadbandmechanics.com/>, and ELGG <http://elgg.org/index.php> 
- there must be more out there.

As with our half-blind acceptance of TOS's and surrender of rights and 
ownership for the "boss's bidding", after having looked into Facebook, 
Friendster, etc. and the ones mentioned above, I can see that the "boss" 
seems to win each time because of much of our own escapist response to the 
industrial (post-industrial, etc.) age: decadence.

PS. Could also be of interest: 
http://jeff.newscloud.com/2007/10/30/breaking-open-facebook-with-open-source-software/




Dissecting the Facebook 'Terms of Use'

By Dale Clapperton on October 9, 2007 11:53 PM | 
<http://defendingscoundrels.com/2007/10/dissecting-the-facebook-terms.html>Permalink 

After a seminar today run by <http://freefall.purrsia.com/>Peter Black on 
the use of 'Web 2.0' in teaching, Peter and 
<http://www.creativecommons.org.au/blog/178>Jessica Coates tried to 
convince me that Facebook is not, in fact, crap, and is substantially 
better than Myspace; which is presumably, impliedly, crap.  Unless you're a 
ditzy teenager whose life ambition is to be on Paris Hilton's friends list 
and thereby gain some kind of incredibly lame validation.  But I digress...

Earlier in the seminar, I'd voiced my objection to the possibility that 
students might be compelled to become members of some of these 'Web 2.0' 
services to do mandatory assessment items in some subjects.  This would, of 
course, require those students to enter into a contractual relationship 
with those service providers, with associated legal liability and privacy 
risks.  It might also constitute 
<http://www.austlii.edu.au/au/legis/cth/consol_act/tpa1974149/s47.html>third 
line forcing, which is per-se illegal in Australia, but that's a different 
issue.

The concerns I raised were largely dismissed as paranoia.  So, I got to 
thinking, exactly what is in the applicable contracts for a service like 
Facebook?  In this posting, I dissect the Facebook 
'<http://www.facebook.com/terms.php>Terms of Use'...  You know, that 
massively long (over 6000 words), complicated, contractual document that 
nobody ever reads when the sign up.
The text of the agreement itself is indented.  Underlining for emphasis has 
been added by me.

Welcome to Facebook, a social utility that connects you with the people 
around you. The Facebook service and network (collectively, "Facebook" or 
"the Service") are operated by Facebook, Inc. and its corporate affiliates 
(collectively, "us", "we" or "the Company"). By accessing or using our web 
site at www.facebook.com or the mobile version thereof (together the 
"Site") or by posting a Share Button on your site, you (the "User") signify 
that you have read, understand and agree to be bound by these Terms of Use 
("Terms of Use" or "Agreement"), whether or not you are a registered member 
of Facebook.

Fairly typical for a 'browsewrap' licence.  If you use the website, you are 
purportedly bound by this contract, whether or not they have brought its 
existence to your attention, whether or not you have actually seen it, and 
whether or not you have manifested your assent to its terms.  These types 
of 'browsewrap' agreements can be characterised as exercises in wishful 
thinking.  Companies who use them and expect them to be binding should be 
savagely beaten with a contract law textbook, until such time as they get 
the concept of 'offer and acceptance' and how it is not displaced by 'our 
website, our rules'.

We reserve the right, at our sole discretion, to change, modify, add, or 
delete portions of these Terms of Use at any time without further notice. 
If we do this, we will post the changes to these Terms of Use on this page 
and will indicate at the top of this page the date these terms were last 
revised. Your continued use of the Service or the Site after any such 
changes constitutes your acceptance of the new Terms of Use. If you do not 
agree to abide by these or any future Terms of Use, do not use or access 
(or continue to use or access) the Service or the Site. It is your 
responsibility to regularly check the Site to determine if there have been 
changes to these Terms of Use and to review such changes.

The 9th Circuit Court of Appeals in the US has 
<http://www.fenwick.com/docstore/Publications/Litigation/06-75424.pdf>held 
that companies 
<http://defendingscoundrels.com/2007/08/another-mandatory-arbitration.html>cannot 
unilaterally vary the terms of a contract such as this one by merely 
updating their website, and that actual notice is required to users.  I 
guess that Facebook and/or their lawyers either didn't hear about that 
case, or they're choosing to ignore it and hope that courts outside the 9th 
Circuit do likewise.
These types of terms are fundamentally dangerous -- even if you take the 
time to read and understand the contract, so you can give informed consent 
to its terms, Facebook can change the contract at any time, and say that 
you are bound to the amended contract.  The deal you agree to today isn't 
necessarily the deal that you'll be stuck with tomorrow.

As a matter of contract law, a contract which leaves essential matters for 
later determination by one of the contracting parties is incomplete and 
unenforceable.  A contract which purports to give Facebook the discretion 
to unilaterally alter the terms of the contract would likely be 
unenforceable for the same reason.

These types of provisions are further discussed in my 
<http://eprints.qut.edu.au/archive/00007650/>journal article on unfair 
terms in electronic contracts.

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