[iDC] Trebor Scholz and Paul Hartzog: Toward a critique of the social web
digiteer at ispx.com.ph
Mon Nov 5 23:06:17 UTC 2007
At 07:08 PM 11/4/2007 -0700, Brad Borevitz wrote:
> the uncertainties of ownership under the law are
>obscured in the dense text of TOS agreements that hardly any user reads. our
>assent to these terms is coerced, and purely formal. (i have long wondered
>if anyone has critically examined issue of the meaningless assent to these
Am re-posting this as per Trebor's request with a short excerpt and the
link below, a take on Facebook's TOS.
There are efforts to provide opensource alternatives to 'closed' social
network software, although Facebook and the like try to make their user
database portable (as well as open up to third party services) - so that
Redhat's Mugshot <http://mugshot.org/main> for example can serve as portal.
FOSS social networks also include: People Aggregator
<http://www.broadbandmechanics.com/>, and ELGG <http://elgg.org/index.php>
- there must be more out there.
As with our half-blind acceptance of TOS's and surrender of rights and
ownership for the "boss's bidding", after having looked into Facebook,
Friendster, etc. and the ones mentioned above, I can see that the "boss"
seems to win each time because of much of our own escapist response to the
industrial (post-industrial, etc.) age: decadence.
PS. Could also be of interest:
By Dale Clapperton on October 9, 2007 11:53 PM |
After a seminar today run by <http://freefall.purrsia.com/>Peter Black on
the use of 'Web 2.0' in teaching, Peter and
<http://www.creativecommons.org.au/blog/178>Jessica Coates tried to
convince me that Facebook is not, in fact, crap, and is substantially
better than Myspace; which is presumably, impliedly, crap. Unless you're a
ditzy teenager whose life ambition is to be on Paris Hilton's friends list
and thereby gain some kind of incredibly lame validation. But I digress...
Earlier in the seminar, I'd voiced my objection to the possibility that
students might be compelled to become members of some of these 'Web 2.0'
services to do mandatory assessment items in some subjects. This would, of
course, require those students to enter into a contractual relationship
with those service providers, with associated legal liability and privacy
risks. It might also constitute
line forcing, which is per-se illegal in Australia, but that's a different
The concerns I raised were largely dismissed as paranoia. So, I got to
thinking, exactly what is in the applicable contracts for a service like
Facebook? In this posting, I dissect the Facebook
massively long (over 6000 words), complicated, contractual document that
nobody ever reads when the sign up.
The text of the agreement itself is indented. Underlining for emphasis has
been added by me.
Welcome to Facebook, a social utility that connects you with the people
around you. The Facebook service and network (collectively, "Facebook" or
"the Service") are operated by Facebook, Inc. and its corporate affiliates
(collectively, "us", "we" or "the Company"). By accessing or using our web
site at www.facebook.com or the mobile version thereof (together the
"Site") or by posting a Share Button on your site, you (the "User") signify
Fairly typical for a 'browsewrap' licence. If you use the website, you are
purportedly bound by this contract, whether or not they have brought its
existence to your attention, whether or not you have actually seen it, and
whether or not you have manifested your assent to its terms. These types
of 'browsewrap' agreements can be characterised as exercises in wishful
thinking. Companies who use them and expect them to be binding should be
savagely beaten with a contract law textbook, until such time as they get
the concept of 'offer and acceptance' and how it is not displaced by 'our
website, our rules'.
We reserve the right, at our sole discretion, to change, modify, add, or
and will indicate at the top of this page the date these terms were last
revised. Your continued use of the Service or the Site after any such
(or continue to use or access) the Service or the Site. It is your
responsibility to regularly check the Site to determine if there have been
The 9th Circuit Court of Appeals in the US has
unilaterally vary the terms of a contract such as this one by merely
updating their website, and that actual notice is required to users. I
guess that Facebook and/or their lawyers either didn't hear about that
case, or they're choosing to ignore it and hope that courts outside the 9th
Circuit do likewise.
These types of terms are fundamentally dangerous -- even if you take the
time to read and understand the contract, so you can give informed consent
to its terms, Facebook can change the contract at any time, and say that
you are bound to the amended contract. The deal you agree to today isn't
necessarily the deal that you'll be stuck with tomorrow.
As a matter of contract law, a contract which leaves essential matters for
later determination by one of the contracting parties is incomplete and
unenforceable. A contract which purports to give Facebook the discretion
to unilaterally alter the terms of the contract would likely be
unenforceable for the same reason.
These types of provisions are further discussed in my
<http://eprints.qut.edu.au/archive/00007650/>journal article on unfair
terms in electronic contracts.
F a t i m a L a s a y
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