Terms of Service as Satire While Real

Okay, Terms of Service for a computer service can be fit for a little humor. Here’s a set that’s real and yet absurd enough that it might actually be void as law.

“Just kidding!” is the title of the penultimate subdivision. Fine; I’m glad if the terms are just a joke. Oh, the lawyer didn’t mean it as a joke? The client could have written it right? and would have? and should have? You know what judges say about coulda-woulda-shoulda. Your lawyer definitely knows.

Usually, reading and acceptance are two separate steps. Not here: “You accept these terms by reading them.” There’s no button for signifying separate acceptance. That might be pushing the law’s boundaries. Maybe not reading is permission to do whatever pleases you.

“Generic Catch-All CYA” as a title is followed by two overclaims: “We are not responsible for anything” and “you indemnify us against everything”. That is crossing the law’s boundaries.

What you and I might say in a personal conversation is not what a lawyer protecting a client would publicly say: “if you get us in trouble we will throw you under a bus.” All right, offending this company probably won’t get your leg broken, but there’s a reason you probably won’t find this phrase in a lawyer’s book of forms.

This mistake is easy for nonlawyers to make but lawyers might red-pencil it: “the Non-Aggression Principle . . . . is what makes it ok for us to shut down child porn sites, Nazis, the KKK or anything else that makes normal, sane people puke in their own mouths.” Yes, those examples deserve being shut down, but what an attorney would likely say is that the author has given those as examples of sites that will be shut down only if they meet this specific psychological test. So, if a beheading-videos site or a KKK site merely causes “normal, sane people” to stop visiting, then it won’t be shut down. The paragraph has an escape clause with a link that protects the company, but it’s still legally ambivalent.

Let’s invite comment on this one appearing in the legal document: “We are fascists when it comes to net abuse”.

The terms bar “you from taking any action that negatively impacts . . . [the firm’s] reputation . . . [“or”] management”. That’s kind of common, but the terms say the purpose of this is partly “an effort to ensure fair and honest public feedback”. Honesty about any organization can undermine its reputation and management. They’ll have to choose.

This is officially in the terms: “remove cellophane before eating.”

The grammar is sloppy, and this is from a 19-year-old company in Canada, where education is very good. One example will do: “we wait until we receive cheque until we register [the domain]”. I know what they mean but if you poke into this in front of a jury you might win. Here’s one that means the opposite of what they wrote: “you can also select domains that you no longer want to ‘allow expire’.” I misread it as related to wanting to allow rather than no longer want followed by to allow to expire, but ambiguities should be avoided in drafting, especially if the remaining syntax will have problems. This the firm calls “Plain English” near the top of the page.

For legal advice, your lawyer is better than this article. But this wouldn’t look good in front of a jury by the time an opposing lawyer finishes turning it into chopped worms.

Another set of terms (I forgot whose) said, of their website, that we’re not allowed to see the source code. But there’s no other way to see their website, because source code is what their server sends to your client (thence to your browser or other user agent), where your browser interprets the source code to render a page with a familiar look. Perhaps this is legally enforceable (source code is not usually displayed unless you want it to be) but I doubt it.

A well-known website, Yelp, with information about many businesses, with much of that information coming from the businesses themselves, as solicited by the website, has terms forbidding use except for “personal, non-commercial use only”. I wrote to the management pointing this discrepancy out, but my guess is that they figure everyone agrees to the terms so there’s not much reason to change a word. The terms refer to a Business Account but I was unable to find the terms applicable to it, perhaps because I do not have any accunt there, but that implies that access to business terms requires opening a personal noncommercial account as a precondition to a commercial relationship, which appears contradictory.

Another website also has a noncommercial restriction. It says, "[y]ou must not access or use for any commercial purposes any part of the Website or any services or materials available through the Website." Also, "[t]hese Terms of Use permit you to use the Website for your personal, non-commercial use only." But it’s a website for an advertising business meant to help businesses (and nonprofits but mostly businesses) publish advertising and thereby try to earn profit. So it’s literally impossible to use the company’s offered service through its website and not violate the terms. There’s an argument that a court would interpret a terms’ language to avoid an absurdity, but the company could have drafted a little more smartly and had more certainty in court.

Google’s people likely pay close attention to their lawyers. So, probably, this line is legally harmless: “Sorry we put you through all this legal jargon!”