Why? Why should a government prohibit private parties from agreeing to anything other than those 3 things?
> Especially garbage like what you're allowed to do with the stuff you get from the service even while not using the service, or about setting up competing products. It's like McDonald's selling you a burger and telling you how to eat it.
It is vaguely like that, but but I'm not sure the analogy facilitates understanding of this subject. McDonalds shouldn't tell you how you can eat your burger, therefore... companies must not enforce any terms on their services aside from those things. Why?
I'm not saying any term should be enforceable. Contract law has a long history against that. I just wonder how and where you draw the line and what existing law is insufficient.
because ToS have been long used to demand unreasonable things and threaten people with expensive lawsuits. The advantage of companies losing bullying power significantly outweighs the disadvantage of less business freedom
ToS are normally "contracts" (hard to even call them that) between a large corporation with very high resources for a lawsuit and an individual with very low resources. The power imbalance makes challenging ToS for the individual unfeasible in 99% of cases
Why those in particular though? The criminal law one sure that's a part of contract law already. Why the others? Why not different ones? It was just asserted that those were reasonable and no other terms are.
USA: There is no solution!
Rest of world: slightly embarrassed look
There are legal terms and concepts like good faith, expected and unexpected terms, reasonable expectations, abuse of a legally unsophisticated party and so on. In other countries, neither the fiction that everyone reads or is expected to read the 10-page "dining contract" of a restaurant exists nor is it allowed (enforceable) to put any unrelated or unreasonable crap in there.
> This is one of these cases like gun crime where:
This is going off topic but I don't think that's going to go anywhere interesting, so why not...
> USA: There is no solution!
> Rest of world: slightly embarrassed look
Well presumably not the 20 odd countries with higher gun homicide rate than USA, but sure. One that did used to be counted among those ranks was El Salvador. El Salvador used to top the list just a decade ago and it was not even close! Today it's around par with New Zealand. Amazing! That is perhaps the most recent and dramatic case of a solution to gun crime being found. You are right that rest of the world is indeed embarrassed about that for some reason. You would have thought everybody would be overjoyed, praising it, looking to emulate it, all the self-proclaimed "experts" admitting they were wrong... but no. It's strange, everybody just has this slightly embarrassed look about it.
On the other hand, if the goal is to restrict the peoples' access to firearms, the solution to that in most other countries was not constitutional violations by their governments of course. So presumably the same solution for that in USA would be to amend the constitution so that such firearms restrictions could be implemented. Also very obvious. I strangely have not heard of any serious efforts by mainstream political parties toward this solution though. I can see there would be second hand embarrassment for them for not seeing the obvious solution to what they want.
We can't apply the El Salvador solution because what about the human rights of the violent criminals?!
I think that your response really hit the nail on the head and it raises the question my mind of how do we most effectively eliminate these kinds of malformed American-system brained thoughts from disrupting real and possibly even productive conversations about these kinds of topics?
Because a severe power imbalance allows for abuse, and governments should prohibit such abuse.
https://en.wikipedia.org/wiki/Inequality_of_bargaining_power
We shouldn't use votes to squelch opinions we don't hold. We should use them to improve the discourse.
In their frothing haste to put down my heresy here https://news.ycombinator.com/item?id=47307056, not one single commenter took just a second to understand what I actually wrote. Most of the responses aren't even coherent on their own, much less address my questions. I did not advocate for the status quo, I did not even assert OP was wrong. I invited them to provide some reasoning for their proposal. Quite troubling, even cultish behavior.
> I'm not saying any term should be enforceable. Contract law has a long history against that. I just wonder how and where you draw the line and what existing law is insufficient.
This is not a magic list of 3 things that I think is complete.
I think there is a compromise between allowing companies to add arbitrary terms, including some which are enforceable but (by my feeling) unreasonable, and excluding unreasonable terms completely with a blanket ban, which no doubt would result in some companies being unable to add reasonable terms that are not in the list.
I think if we picked the 3 terms I outlined in my comment, the result would be a more pleasant situation than the one we have.
You could just say I disagree about what is an enforceable term. The point of the analogy is to show how ridiculous I find the current judicial reasoning, which is something along the lines of "if you don't like the term, you don't have to use the service, so it doesn't really matter how restrictive the terms are". I really think this is how particularly US judges think about this sort of thing, and I think it does a lot of harm to society. People find it obviously unreasonable for McDonalds to say how you can eat your burger, or for a book store to say what you can do with the information in your book, but when a service tells you how you can use the data you get from them, it's fair game. It's ethically inconsistent.
Okay, but you do think it should be an extremely limited scope of things along those lines that parties may form contractual agreements around. It's just such a radical idea that I was hoping to hear some interesting reasoning behind it. If it's just things seem like they might be more pleasant if we did that, then sure thing that's great, certainly would be nice if things were more pleasant we can agree on that.
"Use implies agreement" should not be allowed. Probably even "check the box to agree" should not be allowed. If a company wants to force all their customers to agree to something in a legally binding way beyond the basic standard of what the law requires (things like don't violate our copyright, don't DoS us, etc) they should have to mail a contract and wait for the customer to sign it with ink and send it back. (Well, maybe not literally that, but at the very least some similarly weighty process which makes it clear to all parties that this is something they need to read carefully and take seriously.)
It's nonsense to on the one hand treat a ToS like "no big deal" and expect everyone to passively agree to it with no friction or push-back while at the same time treating it like a contract signed in blood as soon as lawyers get involved.
Added to that is the forced arbitration clauses they exist in most ToS. See the example about Disney getting out of a wrongful death suit at a theme park beciaee the plaintiff had a free Disney account for a PS5 that he bought many years earlier.
Tl;dr - buying a piece of software or home appliance shouldn’t come with more strings attached than buying a piece of real estate.
In a situation like that, users have no means of resisting egregious terms, and no you cannot pull up stuff like "if you don't like it, don't buy it". As I wrote, the users are uncoordinated, and would take a huge effort to coordinate. Boycotting services rarely works (if ever). So what we end up with is that legal teams employed by firms optimize to shove as much bullshit into ToS as they can, the users grind their teeth and bear the bullshit, and get shittier service. Nobody really wins, because I'd argue the marginal gain for the company is minimal at best from this.
The government is not there just to enforce laws, but also to legislate such that the scales are balanced. Otherwise we may as well live in a dictatorship.
> The government is not there just to enforce laws, but also to legislate such that the scales are balanced. Otherwise we may as well live in a dictatorship.
Should the state just prohibit all agreements between two parties unless the state's adjudicator decides they are exactly equal in "power" and permits it? Sounds horrific, like a dictatorship. The government is not my guardian and does not do my thinking for me. I get that many people are subservient and would much prefer that, but that's no good either. There's an enormous middle ground between anarchy and "the state intervenes to allegedly 'balance the scales' in every aspect of peoples' private lives".