> The entire notion of being allowed to enforce arbitrary terms of service is absurd. There are probably a handful of terms everyone agrees are reasonable (no attempted hacking, rate limits, do not break laws) and everything else should be unenforceable.
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.
This is one of these cases like gun crime where:
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.
During friendly discussions and arguments my lawyer friends like to make the same kind of thought terminating cliche filed arguments that you just replied to.
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?
>Why should a government prohibit private parties from agreeing to anything other than those 3 things?
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
> 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
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.
The original comment asserted that there are “probably” a finite list of reasonable things everyone could agree on. The examples were parenthetical and surely not meant to be the last word.
The point they were making (rightly or wrongly) seems to be that contract law just isn’t the right way of managing consumer-business relationships. I suspect that actually meshes with the intuitions of a broad swath of the population, who want a reliable, predictable, consistent, and consumer-beneficial set of norms and laws around all consumption so that it is easy to manage and understand when you are departing from the norm and to be able to confidently conduct a public life knowing that your purchases are not subjecting you to any surprising gotchas other than having lost the money and having acquired a product.
You could take this line of thought charitably in another direction to assert that “unusual” agreements are presumed unenforceable but not that there are no legal mechanisms for adding additional clauses.
We could have a sort of “Consumer Protection Agency” that broadly enforces these norms when a company feels the need to avenge themselves on someone. A sort of regulatory agency, if you will.
Perhaps there should be a limited set of standard clauses that companies can pick from and that consumers can read and compare like food labels.
> Why should a government prohibit private parties from agreeing to anything other than those 3 things?
Because a severe power imbalance allows for abuse, and governments should prohibit such abuse.
https://en.wikipedia.org/wiki/Unconscionability
In particular, one private party has an expensive and highly educated legal team and a lot of time. The other party wanted to eat a burger and didn't have a week to do a thorough legal review of the TOS to check if they were potentially selling any kidneys for a dollar.
"Inequality of bargaining power is generally thought to undermine the freedom of contract, resulting in a disproportionate level of freedom between parties, and it represents a place at which markets fail. "
https://en.wikipedia.org/wiki/Inequality_of_bargaining_power
I know discussing HN behavior is off topic, but parent's comment is a perfect example of something unpopular that adds to conversation.
We shouldn't use votes to squelch opinions we don't hold. We should use them to improve the discourse.
> Why should a government prohibit private parties from agreeing to anything other than those 3 things?
> 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.
Judges which apply that sort of reasoning really ought to think about how it applies to a hospital visit in which they were incapacitated and received a bunch of treatment. Would it be legally appropriate to slip a term about binding arbitration, or a hold harmless, or maybe a release allowing photos of their visit to be used for advertising?
Why? Because ToS as they exist today are unreasonably long and not understandable by the average person. Yet nearly everything we buy today comes with a complex ToS.
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.
Because the power is disproportionally concentrated with one party - the service provider. The users of the service are numerous, comparatively small and uncoordinated.
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.
But some terms were claimed to be reasonable. If power being disproportionate is sufficient to void terms, why not those terms too?
> 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".
> If power being disproportionate is sufficient to void terms, why not those terms too?
Power being disproportionate is obviously not sufficient to void terms - that's not what the comment you're replying to said. It is necessary to void terms when there is a power imbalance.
> 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?
This is obviously ridiculous and makes me think you are not arguing in good faith. Terms have to justify their existence according to logical principles that we argue about. It does not follow that there has to be a "state's adjudicator"! I am just describing how democracies come up with laws - it is not some fantasy Orwellian nightmare.
> I get that many people are subservient and would much prefer that
Ironic comment!
> Power being disproportionate is obviously not sufficient to void terms - that's not what the comment you're replying to said. It is necessary to void terms when there is a power imbalance.
What are you trying to say here? I didn't claim the previous poster didn't think it was necessary, I was just commenting on the sufficiency part of the claim -- sufficient being a subset of necessary.
> This is obviously ridiculous and makes me think you are not arguing in good faith.
What is ridiculous is that you're pretending not to recognize a reductio ad absurdum, particularly in the context of a reply that included McDonalds dictating how you eat a hamburger! Makes me think you are not arguing in good faith, I may be forced to report you to an adjudicator to rule on how we are permitted to debate.
> Terms have to justify their existence according to logical principles that we argue about.
And that's exactly what I'm asking about. OP made a claim about what terms were "justified" and I'm trying to find out the basis for them.
> Ironic comment!
It isn't, you're just unable to address it.
> 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?
It's pretty simple. You can write whatever you want into a contract, but if you want to enforce an unreasonable term, you will lose in court and might be forced to remove the term from current and future contracts. That's how it works everywhere. The difference between legislations is just what is considered a reasonable term.
Why needlessly complicate this with so many obtuse hypotheticals when you can just look at other countries that have objectively lower crime rates, greater citizen happiness levels, lower wealth inequality do it?
> 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.
This is a strawman and you know it. Please at least make an attempt to argue in good faith, otherwise there's no point.
Of course there should be a reasonable middle-ground. The current situation with completely bogus ToS is not it.
Let me turn it around: should the state just abandon it's duty of creating an fair and equal playing field between large corporations and clients and let society devolve into a corporatocracy where laws are enforced purely to further corporate interests? Because that's exactly what you seem to be suggesting.
See? Not particularly conductive to discourse, is it :D
> This is a strawman and you know it.
Uh yes? And you clearly know it too. It was a bit like your McDonalds strawman.
> Please at least make an attempt to argue in good faith, otherwise there's no point.
No need to get in a huff when we obviously both know what we're talking about. It's not conducive to the discussion.
> Of course there should be a reasonable middle-ground. The current situation with completely bogus ToS is not it.
I don't know exactly what the current situation with completely bogus ToS is, I'm willing to accept it could be adjusted. I was asking specifically about your proposed adjustment to it though. Your reasons for the new framework you suggested.
> Let me turn it around: should the state just abandon it's duty of creating an fair and equal playing field between large corporations and clients and let society devolve into a corporatocracy where laws are enforced purely to further corporate interests? Because that's exactly what you seem to be suggesting.
That isn't what I was suggesting. I was asking you how you came to your conclusion in the previous post. (EDIT: Sorry you did not conclude that, the grandparent did the parent of my first post you replied to, but you posted seemingly in support)