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 (...)
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.
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 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.
That is the most perfectly succinct explanation for why this might be a bad idea. Well done.
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.
(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
EDIT: fixed typo.
As always, IANAL.
... and we will develop more features and services in the future
... 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
To my mind that's a pretty big omission, and makes me distrustful of hte rest of the "basic" terms.
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.
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.
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.
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.
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.
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)
Obviously that simplicity isn't sufficient alone, or we'd just have one law "Be Good" (even that needs 'good' to be defined properly) -- but having a summary like this next to the specific details, in "lay-galese" if you will, it seems like this should be the standard way to write all legal documents.
I hope it doesn't open them up to liability due to the interpretations of the summary, though?
Before using any of the 500px services, you are required to
read, understand and agree to these terms. You may only create
an account after reading and accepting these terms. The column
and is not legally binding.
In this case, if 500px are presenting a tl;dr of their legal terms in this way, they might be implicitly acknowledging that their detailed terms are too difficult for their customers to understand. If I were them, I would be more worried that a court would hold that, notwithstanding the weasel words at the top, only the summary was binding, because 500px clearly intended that customers might read only that summary and then choose whether or not to enter into the agreement on that basis.
Of course, in law it's rarely that simple, and lawyers do (try to) exclude certain wording such as headings all the time. Hopefully 500px did get proper advice from someone qualified in their own jurisdiction and satisfy themselves that what I've described here isn't really the case. I do appreciate the spirit of what they're trying to do, and I completely agree that absurdly long, detailed and technical on-line agreements make a mockery of anyone's legal system.
IANAL either, and I wouldn't touch this or anything else that hadn't been vetted by a professional. To me, on first glance, this smells like class-action bait. "Your Honor, the defendants deliberately misled the plaintiffs by placing a 'simple' Terms of Service on their website, but then hid their true intentions in small print which claimed the obvious, prominent version wasn't legally binding." Who needs that hassle?
The law does cover this. Contracts are about a meeting of the minds. Do both parties understand and agree to the terms. Things like email, other written communication about the contract or terms are all reviewed at trial. It's amazing how much of the "sneaky" verbage just get thrown out or ignored as unreasonable or not understood.
Think of the Commons Deed as a user-friendly interface to
the Legal Code beneath, although the Deed itself is not a
license, and its contents are not part of the Legal Code
Its a work in progress, and I think we're a lot closer to where I want to be. We focused extensively on making it understandable, useful and usable and I'd love to get feedback on how well we hit the mark (or missed it as the case may be...). There's still some complexity in there that our lawyers insist on and I figure we can keep whittling away at it until we get what we really want.
The problem is that by placing the simplified terms in the same place, they become binding. Since they must differ somehow from the actual terms, then you open yourself to various problems.
Here's a link to the episode: http://www.npr.org/blogs/money/2011/04/21/134633336/why-are-...
That doesnt sound legal.
It would, if enforceable allow them to only pay you $100 if they wrote off (destroyed) your car in a crash if it happened that you were a customer. Or similarly they could duplicate any customer's copyright works and pay only $100 compensation.
Thanks for pointing that out!
It is legal and very common. It is done simply to limit the liability in unforeseen events. Some courts can throw this point out during the case, some may adhere to that. But most terms on the Internet would include it "just in case".
And no, we won't duplicate customers' works and such — we have build it for photographers, and we are photographers ourselves. We care about that stuff.
- Evgeny Tchebotarev,
Thanks for your response. I wasn't suggesting, as it might read, that it's not legal to make the claim. Just that there was no apparent legal value in such a disclaimer.
I realise it's a technicality but do you, or does anyone here, know of a case in which such a clause has been valuable in limiting the defendants liability (or otherwise valuable I guess) and as a follow-up why the claimed limit of liability is not $0 USD or say 1¢? On the later point consider that one could be the subject of a class action by a million users (the claimed liability then would differ 1¢/$100 as $10k/$100M; this suggests there must be a strong reason to claim at the specific value).
Premium accounts are limited to maximum of 1,000 new photographs/images per week 100,000 photographs/ images in total (approximately 3,000Gb of storage) and 10Gb of data transfer per month. Awesome accounts that exceed a limit for several months will be notified of their usage and restrictions may be imposed if usage is not corrected.
A couple of things. First, what about Plus accounts that exceed a limit for several months? It would appear that the TOS don't cover any sort of restriction on those accounts.
More importantly, limted is not how the premium accounts are advertised at https://500px.com/upgrade the Plus and Awesome account don't say "1000 images/week" they say "Unlimited Uploads Upload ... as much as you want." Additionally no total storage limit is ever mentioned.
I know that the cellular companies and ISPs think that "Unlimited" actually means "limited" but it doesn't.
un·lim·it·ed, adj. 1. Lacking any controls 2. Boundless, infinite 3. not bounded by exceptions : undefined
That definition does not have "4. limit to be determined arbitrarily"
500px should either update their upgrade page advertisements to match their TOS, or--better--update their TOS to match their advertisement.
definition from: http://www.merriam-webster.com/dictionary/unlimited (I'd prefer an OED definition, but I don't have a subscription)
Of course, having a simplified version is still nice.
The point of legalese is to define everything in absolutely certain terms.
I think this is relevant: There is a paper+presentation from SPJ about defining a contract (financial, in this case) in Haskell. Precise and machine verifiable.
I wish there were some default TOS templates that everyone used, and their modifications were all in a different color or something. Or maybe if everyone used common building blocks of text that were modular. Kind of like how Creative Commons lets you build a license using different key parts (attribution, non-commercial, etc).
Especially, since most of that lawyer blah is superfluous. Things like "do not harass other people". Really! We already have /laws/ for that, you don't need to add any obviously prohibited thing to the TOS.
Someone puts a cork board up in a rec center, they don't feel the need to inform people that they are not resonsible for the content. What is the legal situation on the internet that makes people think they need to do this?
Is it just herd mentality or is there a legal reason why you have to tell people that if they post child pornography that you will delete it?
And I point also and especially to wording like this, which leaves me outright cold to them as a product
"The registration information you provide must be accurate, complete, and current at all times. Failure to do so constitutes a breach of the Terms, which may result in immediate termination of your 500px account."
This is a website, that I put photos on, not an application for something serious.
There has been a few cases like that, and photographers love that we take proactive approach in solving their problems.
But I'm not sure that it really gives me any more confidence in my knowledge of the contractual agreement than if I hadn't read the TOS at all.
I think a company's TOS is based on the assumption that if the company tries to use their TOS to take advantage of lots of people, if one person finds out, everyone finds out. And the company has to answer.
If a company makes their TOS more readable, I'm still agreeing to the contract on the same assumption. It doesn't matter that I read it. What matters is that I legally bound myself to the TOS, not the summary.
What would be way cooler was if the TOS summary sections were curated by the masses (wikipedia style). See, that I would trust and I would be interested in reading.
There is a reason why legal documents are terse, boring, difficult to read. It's because they need to avoid the natural ambiguities of human language.
Mom just saw a cat in the living room. The mom was in the living room and saw a cat? The mom was in the kitchen and saw a cat in the living room? See, for a casual conversation it doesn't matter. But to prove where a murder happened, it matters....
As much as I hate lawyerspeak(computer programmer here), I understand the need for a technical language and I understand that the simplifications in that document WILL allow for ambiguities.
For example: "If you use more than your fair share, we may gradually limit your account." Can mean anything....
There is no rule that a TOS has to be convoluted.
Should people really be expected to horizontally scroll a dozen times to read a page.
I know you are a photography site, and you want your photos to be big & beautiful -- but this is not necessary.
Oh, and one the subject of TOS; I believe a legal document, is a legal document, is a legal document -- trying to "paint over" your terms with "friendly" prose isn't helping the user and is also unnecessary...
Your feedback is welcome!
That misplaced apostrophe is killing me.
Is that Gb or GB?