As much as I think Terms of Service documents are broken, I don't like these supposed simplifications, because invariably they simplify too much.
For example, in the real ToS, there's this clause:
The license granted to 500px includes the right to use your Content fully
or partially for promotional reasons and to distribute and redistribute your
Content to other parties, web-sites, applications, and other entities (...)
This is, in my opinion, an important clause that does not appear in the simplified version of the text.
I've been through the process of litigating a contract in court. Not fun, but definitely was an exquisite education in the school of hard knocks.
Lawyers throw all kinds of language into a contract, that doesn't mean the intent was there. Vague, unfair, or overly broad language that was not clearly understood by both parties tends to get reduced, removed, or modified in accordance with what both parties reasonably understood to be the intent. So if they tried to get overly sneaky and do something where the basically version says X, but the full clause says we do X,Y,Z, then the courts may very well rule the implied intent was X but Y and Z were not implied and agreed to.
If they understand what they are doing, and plan to strictly abide by the basically section, this is a fantastic idea. If they at some point decide they want to get sneaky and put something in the detailed version that is not covered in the "basically" section, they may well find themselves in a world of trouble if it comes to court.
My experience was a company trying to sue me, despite them breaching the contract. The judge took a dim view of the crazy clauses in there and was pretty sharp with them. I expect the same thing would happen here. A normal user would probably abide by the "basically" section and the courts would probably take that interpretation. Of course YMMV.
"The column on the right provides a short explanation of the terms of use and is not legally binding."
That's quite clear to me. If I were to try my luck in the courts, I'd be pleasantly surprised if the Judge took the "basically" column as the legal interpretation. Ignorance, as far as I'm aware, is not an acceptable legal defence (as cited by many a judge to people who neglect to pay their taxes).
The fact remains however, few people read TOS pages or privacy polices. Any attempt to change that should be applauded in my view.
I'd be pleasantly surprised if the Judge took the "basically" column as the legal interpretation.
I would be very surprised if their legal department thought the "basically" column was a good idea. They can say that it isn't legally binding, but that claim isn't ... err... legally binding. Everything written in a contract is equally binding, and the proximity and one-to-one mapping could make the summary column part of the contract. If either party is surprised by conflicting claims, it will be up to the judge to decide which parts of the contract are stronger.
The "basically" column is a really bad idea. The "full" column should stand on its own. If they think it is too complicated, it should be simplified.
Ignorance, as far as I'm aware, is not an acceptable legal defence (as cited by many a judge to people who neglect to pay their taxes).
Be careful not to confuse criminal law with contracts. It is fundamental to the existence of a contract that both sides understand it. That is one of the few points of law that is pretty much a universal constant, whatever jurisdiction you're in.
The way this was explained to me, and a phrase that I think is very powerful, is that for a contract to be valid there must be a "Meeting of the minds"
(IIRC there must also be two parties (otherwise it is a deed not a contract) and the parties must have "capacity" i.e. the potential to fulfill their obligations)
IANAL - probably painfully obvious to anyone who is.
Law is like code (and magic) - it is a framework that gives real world power to abstract language - maybe this is why HN is so obsessed with legal chitchat
And the legality of this isn't fully established; in fact, last I heard, it was being somewhat successfully contested. But there's no sweeping word on the matter yet: you could probably take a ToS violation to court and have it set precedence.
IANAL (but my wife has a JD): it's a fine line; on the one hand, the legal principle of "meeting of the minds" might make the judge rule that the "basically" illustrates the true intentions of the contractual clauses. On the other hand, as you say, judges are often unsympathetic to pleas of ignorance. What you sign in the contract is generally the contract. Most of the time, what this probably means is that judges will take the "basically" summarized version when they feel the contract is egregiously inequitable, and otherwise defer to the legally binding wording.
It's difficult to compare Terms of Service with typical contracts. In the first place, nothing is being signed, and anyways judges are fully aware that no one reads the TOS. I can imagine a reasonable judge ruling that no one would have read the full TOS, and so the "Basically" column is more binding.
... and we will develop more features and services in the future
to the actual TOS:
... 500px reserves the right to suspend or discontinue
the availability ... or remove any Content ... without
prior notice. 500px may also ... restrict your access to
parts of or all of the Site and the Services without notice
(multiple ellipses for brevity)
To my mind that's a pretty big omission, and makes me distrustful of hte rest of the "basic" terms.
Exactly, a clear and simple license should be clear and simple, not legalese with "interpretation". If they don't intend that clause to be there it shouldn't be there.
For reference, the GPLv2 (sadly not so much v3) has held up very well now under multiple tests both in and out of court for two decades. And it's very short, and written in clear English. It even describes its intent in the body of the license.
Neither. The GPLv3 was motivated by practical concerns (tivoization, etc...) and it solves those to the satisfaction of the FSF. GNU software uses it, though Linux and much of the rest of the ecosystem does not. I don't think it's failed.
But it doesn't read like GPLv2 did. The v3 document is longer, with more definitions and more "legalese". It seems like they wanted to "polish it up" for the legal community, but in doing so I think they lost a lot of the beauty of the original.
Agreed, I imagine this will not go over well with 500px users. You would think 500px would respect the IP savvy of artists and avoid (perhaps) patronizing them.
I don’t think it’s patronising at all. The site is acknowledging not only that their customers’ time is valuable, but also that most people won’t bother to read two sentences of plain English—let alone a couple dozen paragraphs of legalese. It may put 500px on slightly shakier legal ground, but as far as the users are concerned, it’s humanising and friendly.
I agree. It seems like 500px is trying to think outside the box to communicate the intentions behind their ToS so that the experience is more transparant. I would assume the thinking is that either almost nobody will read the ToS as is, but maybe some people will actually read the simplified version. The issue of course is that legalese is dense and a simplification is not adequate. As an alternative, I would like to see how people react to a simple statement BEFORE the ToS that explains the company's intentions as an introduction.
The intent of that clause would have been to allow them to a) actually show the images on the 500px site, b) highlight them in "popular images" on the site, c) surface them in API results.
Agreed. Plus the terms do state that all copyright remains with the user. Someone seems to have amended the basically text to reflect this:
Your photos will preserve whatever copyright they had before
uploading to this site. We will protect the copyright and
will not sell your photos without your permission.
Just because it says the terms are not legally binding does not make it so. In fact, I would not be surprised at all if having a short explanation invalidate it. Very risky.
I'm not sure how this differs from a preamble, which are often non-binding in and of themselves. That said, preambles do convey the intent of the agreement, so if something in the agreement is contrary to the intent... you could make an argument that there wasn't a meeting of the minds.
To the extent that the preamble and the legal text say the same thing in different ways, I think the company may be in a stronger position to enforce it. However, as you say, if the preamble contradicts the terms, then it's harder (if not impossible?) to enforce the contradictions.
In the end, it'll be a specific case and a specific judge that causes the interpretation... and other things such as representations of the service and any correspondence between the parties may also be taken into account.
Aren't those clauses in there to cover transferring files to CDNs or backup services?
I'd interpret the "Basically" section as a display of their intent, since the full terms require a lot of legalese to protect 500px.
As NyxWulf and other commentators said, the "Basically" sections would probably play a role in a law suit anyway, so they couldn't hide contradicting terms in the left section.
There are two types of people who generally read the TOS. The type that are specifically looking to make sure that there no deal breakers (for them at least) before using the service. Thes people already have a list of deal breakers and are searching for them.
The second group are reading out of curiosity and just checking to see what's up in the TOS.
Group 1 really benefits from the full text while group 2 just wants a simplified digest version. So I think it's great they did this. Plus having the digest and full text on the same page lets them say later "it's all in the terms" if someone wants to play ignorant.
(There's also a third type of TOS reader. The infamous blogger who skims TOS agreements all day looking for some fake controversy to drum up)
Comments
As much as I think Terms of Service documents are broken, I don't like these supposed simplifications, because invariably they simplify too much.
For example, in the real ToS, there's this clause:
This is, in my opinion, an important clause that does not appear in the simplified version of the text.I've been through the process of litigating a contract in court. Not fun, but definitely was an exquisite education in the school of hard knocks.
Lawyers throw all kinds of language into a contract, that doesn't mean the intent was there. Vague, unfair, or overly broad language that was not clearly understood by both parties tends to get reduced, removed, or modified in accordance with what both parties reasonably understood to be the intent. So if they tried to get overly sneaky and do something where the basically version says X, but the full clause says we do X,Y,Z, then the courts may very well rule the implied intent was X but Y and Z were not implied and agreed to.
If they understand what they are doing, and plan to strictly abide by the basically section, this is a fantastic idea. If they at some point decide they want to get sneaky and put something in the detailed version that is not covered in the "basically" section, they may well find themselves in a world of trouble if it comes to court.
My experience was a company trying to sue me, despite them breaching the contract. The judge took a dim view of the crazy clauses in there and was pretty sharp with them. I expect the same thing would happen here. A normal user would probably abide by the "basically" section and the courts would probably take that interpretation. Of course YMMV.
"The column on the right provides a short explanation of the terms of use and is not legally binding."
That's quite clear to me. If I were to try my luck in the courts, I'd be pleasantly surprised if the Judge took the "basically" column as the legal interpretation. Ignorance, as far as I'm aware, is not an acceptable legal defence (as cited by many a judge to people who neglect to pay their taxes).
The fact remains however, few people read TOS pages or privacy polices. Any attempt to change that should be applauded in my view.
I'd be pleasantly surprised if the Judge took the "basically" column as the legal interpretation.
I would be very surprised if their legal department thought the "basically" column was a good idea. They can say that it isn't legally binding, but that claim isn't ... err... legally binding. Everything written in a contract is equally binding, and the proximity and one-to-one mapping could make the summary column part of the contract. If either party is surprised by conflicting claims, it will be up to the judge to decide which parts of the contract are stronger.
The "basically" column is a really bad idea. The "full" column should stand on its own. If they think it is too complicated, it should be simplified.
> They can say that it isn't legally binding, but that claim isn't ... err... legally binding.
That is the most perfectly succinct explanation for why this might be a bad idea. Well done.
Ignorance, as far as I'm aware, is not an acceptable legal defence (as cited by many a judge to people who neglect to pay their taxes).
Be careful not to confuse criminal law with contracts. It is fundamental to the existence of a contract that both sides understand it. That is one of the few points of law that is pretty much a universal constant, whatever jurisdiction you're in.
The way this was explained to me, and a phrase that I think is very powerful, is that for a contract to be valid there must be a "Meeting of the minds"
(IIRC there must also be two parties (otherwise it is a deed not a contract) and the parties must have "capacity" i.e. the potential to fulfill their obligations)
IANAL - probably painfully obvious to anyone who is.
Law is like code (and magic) - it is a framework that gives real world power to abstract language - maybe this is why HN is so obsessed with legal chitchat
Which is somewhat absurd, since most people agree to hundreds of ToS contracts without reading them.
And the legality of this isn't fully established; in fact, last I heard, it was being somewhat successfully contested. But there's no sweeping word on the matter yet: you could probably take a ToS violation to court and have it set precedence.
IANAL (but my wife has a JD): it's a fine line; on the one hand, the legal principle of "meeting of the minds" might make the judge rule that the "basically" illustrates the true intentions of the contractual clauses. On the other hand, as you say, judges are often unsympathetic to pleas of ignorance. What you sign in the contract is generally the contract. Most of the time, what this probably means is that judges will take the "basically" summarized version when they feel the contract is egregiously inequitable, and otherwise defer to the legally binding wording.
EDIT: fixed typo.
It's difficult to compare Terms of Service with typical contracts. In the first place, nothing is being signed, and anyways judges are fully aware that no one reads the TOS. I can imagine a reasonable judge ruling that no one would have read the full TOS, and so the "Basically" column is more binding.
As always, IANAL.
I feel the current state is summed up pretty well on Wikipedia: http://en.wikipedia.org/wiki/Clickwrap
I second this. Compare this 'basic':
to the actual TOS: (multiple ellipses for brevity)To my mind that's a pretty big omission, and makes me distrustful of hte rest of the "basic" terms.
Exactly, a clear and simple license should be clear and simple, not legalese with "interpretation". If they don't intend that clause to be there it shouldn't be there.
For reference, the GPLv2 (sadly not so much v3) has held up very well now under multiple tests both in and out of court for two decades. And it's very short, and written in clear English. It even describes its intent in the body of the license.
Is this just because the GPLv3 hasn't been around for two decades, or has it actually failed?
Neither. The GPLv3 was motivated by practical concerns (tivoization, etc...) and it solves those to the satisfaction of the FSF. GNU software uses it, though Linux and much of the rest of the ecosystem does not. I don't think it's failed.
But it doesn't read like GPLv2 did. The v3 document is longer, with more definitions and more "legalese". It seems like they wanted to "polish it up" for the legal community, but in doing so I think they lost a lot of the beauty of the original.
Wow, this would make me feel so betrayed if I was a customer.
Agreed, I imagine this will not go over well with 500px users. You would think 500px would respect the IP savvy of artists and avoid (perhaps) patronizing them.
I don’t think it’s patronising at all. The site is acknowledging not only that their customers’ time is valuable, but also that most people won’t bother to read two sentences of plain English—let alone a couple dozen paragraphs of legalese. It may put 500px on slightly shakier legal ground, but as far as the users are concerned, it’s humanising and friendly.
I agree. It seems like 500px is trying to think outside the box to communicate the intentions behind their ToS so that the experience is more transparant. I would assume the thinking is that either almost nobody will read the ToS as is, but maybe some people will actually read the simplified version. The issue of course is that legalese is dense and a simplification is not adequate. As an alternative, I would like to see how people react to a simple statement BEFORE the ToS that explains the company's intentions as an introduction.
The intent of that clause would have been to allow them to a) actually show the images on the 500px site, b) highlight them in "popular images" on the site, c) surface them in API results.
Agreed. Plus the terms do state that all copyright remains with the user. Someone seems to have amended the basically text to reflect this:
I wonder if using a simplified explanation in anyway voids the actual TOS.
They've got that covered:
> The column on the right provides a short explanation of the terms of use and is not legally binding.
Just because it says the terms are not legally binding does not make it so. In fact, I would not be surprised at all if having a short explanation invalidate it. Very risky.
I'm not sure how this differs from a preamble, which are often non-binding in and of themselves. That said, preambles do convey the intent of the agreement, so if something in the agreement is contrary to the intent... you could make an argument that there wasn't a meeting of the minds.
To the extent that the preamble and the legal text say the same thing in different ways, I think the company may be in a stronger position to enforce it. However, as you say, if the preamble contradicts the terms, then it's harder (if not impossible?) to enforce the contradictions.
In the end, it'll be a specific case and a specific judge that causes the interpretation... and other things such as representations of the service and any correspondence between the parties may also be taken into account.
I'm not a Lawyer, This isn't Legal Advice.
Aren't those clauses in there to cover transferring files to CDNs or backup services?
I'd interpret the "Basically" section as a display of their intent, since the full terms require a lot of legalese to protect 500px.
As NyxWulf and other commentators said, the "Basically" sections would probably play a role in a law suit anyway, so they couldn't hide contradicting terms in the left section.
There are two types of people who generally read the TOS. The type that are specifically looking to make sure that there no deal breakers (for them at least) before using the service. Thes people already have a list of deal breakers and are searching for them.
The second group are reading out of curiosity and just checking to see what's up in the TOS.
Group 1 really benefits from the full text while group 2 just wants a simplified digest version. So I think it's great they did this. Plus having the digest and full text on the same page lets them say later "it's all in the terms" if someone wants to play ignorant.
(There's also a third type of TOS reader. The infamous blogger who skims TOS agreements all day looking for some fake controversy to drum up)