> On Monday, the highest state court in Massachusetts accepted Kauders' argument, holding that merely mentioning terms and conditions on a registration page wasn't sufficient to create a binding contract between Kauders and Uber.
IANAL, only in Massachusetts, and it's somewhat narrow:
> We also conclude that Uber's terms and conditions did not constitute a contract with the plaintiffs. The app's registration process did not provide users with reasonable notice of the terms and conditions and did not obtain a clear manifestation of assent to the terms, both of which could have been easily achieved. Indeed, a review of the case law reveals that Uber has no trouble providing such reasonable notice and requiring express affirmation from it sown drivers.Here,in remarkable contrast,both the notice and the assent are obscured in the registration process.As a result, Uber cannot enforce the terms and conditions against the plaintiffs, including the arbitration agreement at issue here.
> But the broader impact of the ruling is to put companies on notice that they can't bind users to restrictive terms merely by linking to those terms somewhere in a site or app's registration process. In order to create a legally binding contract, a tech company has actually put the terms in front of the user and get them to affirmatively agree to them.
Does anyone believe that'd make any difference? Even if you showed the agreement and forced them to scroll down to activate the "I agree" button, I'm pretty sure nearly everyone that wouldn't click the links to read the agreements would also just scroll down and hit "I agree" without reading.
While I am a bit sympathetic with this ruling, I think it's a net negative result for rule of law. There should be some terms under which you are interacting. The terms as listed are pretty easy to find. The link pretty clearly says that if you proceed you agree to the terms. They have a link to the terms. You don't have to proceed. It's not really that hidden or misleading. Adding a check box doesn't make it that much more likely for someone to read it, not enough to materially change the facts here. Every piece of software has terms and conditions, so seeking those out seems like a low bar.
If the standard is "well nobody reads those things anyway", then a lot of mortgages and credit card agreements could be invalid. Frankly most propositions on the ballot should be invalid, as those aren't even linked in any way to the ballot where you vote. This December's bill in the US congress that was like 5,000 pages long and they only had 2 hours until the vote to read it, that should be invalid.
If there was a plausible alternative agreement they might have agreed to, then I could understand the ruling. But as a matter of law, this seems like a bad call.
I guess to state what I think should be a real solution to this problem: people should have their own AI lawyer that works on their behalf to flag things they might want to object to. I helped build a surprisingly effective prototype of such a thing using a very simple "bag of words" approach, and it had >99% accuracy in identifying clauses, because they almost all use the same words, basically by design. So this is pretty trivial to build in the grand scheme of things.
Courts should prevent companies from banning AI assistants, that is where they could help.
"There should be some terms under which you are interacting" - sure, and those default terms are defined by the law. The company should not get the ability to have users automatically forfeit rights that they have (such as the right to dispute claims in court instead of arbitration, as in this particular case) by unilaterally putting something in their terms and conditions.
Nonnegotiated contracts of adhesion with consumers can and should be limited in their scope, what clauses are permissible there and what are not.
>Every piece of software has terms and conditions, so seeking those out seems like a low bar.
I consider this evidence against Uber's case. For example, I recently set up a new smart TV and Google Home sound system for my parents. There had to have been 8 separate legal agreements, each very long, just to get to the point where we had a picture and sound came out the speakers. They are sense blobs of legalese, and most people assume they know what they say, but they don't.
It is ridiculous to ask people to either retain a personal lawyer or pursue their own education in law, just so they can understand and agree to the Terms and Conditions, EULA, and privacy agreements for all their apps.
Is it specifically Uber's fault the vast majority of users don't actually understand what they've agreed to? No. But it's reality, and we can't just ignore it.
It's awfully hard to get the TOS/EULA etc, before purchasing a product which essentially coerces the end user into agreeing under duress. I don't need to sign a eula to take a taxi or train, why should I expect the uber eula to be anything except:
The terms should be what a reasonable person actually reads when going through their registration process.
When I signed a mortgage contract, I had to separately initial every single page and the closing attorney summarized the contents of each section of the contract. That should be the experience they replicate if they want their TOS to be legally binding.
"You agree that you cannot sue Uber but must instead take any disputes through arbitration"
A bit of boilerplate describing the exact nature
of the arbitration, but nothing unrelated
to arbitration...
...
...
...
| Agree | | Disagree |
Followed by another similar dialog for every major term.
They should also announce how long it takes to read their whole TOS.
And really, what if you switched the marketing copy and the terms of service? The marketing says how the app works, the terms of service does too, why not pay to advertise the terms of service, and when you sign up, you get to read their beautiful marketing copy.
>While I am a bit sympathetic with this ruling, I think it's a net negative result for rule of law
I disagree because I think it's important that the rule of law is intelligible to ordinary people. It doesn't just apply to Uber's TOS but almost everyone's. We've moved way past the point where someone can be expected to actually have an understanding of the legal ramifications of what they sign. Even if you were to read all of it, hardly anyone can even decipher what rights they actually have if they made it to a court given how counter-intuitive much of it is even to educated people.
>If the standard is "well nobody reads those things anyway", then a lot of mortgages and credit card agreements could be invalid.
I think that's actually a completely legitimate argument and it's why a lot of behaviour in the loan industry can be predatory and why arguments towards "rational consumers" hold little merit. The world has gotten so complex, it's left a lot of people behind.
> We've moved way past the point where someone can be expected to actually have an understanding of the legal ramifications of what they sign
I'm more worried that if people did understand, they wouldn't sign, but that would essentially opt them out of modern society, so there's a coercive element to tapping "agree."
This is why most of what the EU has been doing is forcing websites to include a "I want to use the site but not be tracked" button rather than a simple "I agree / close website" popup
>that would essentially opt them out of modern society
That's all I want from life, to be left alone, far removed from all the vapid bullshit of "modern society". I want to stop worrying how the game show host in chief is killing my countrymen today. I want to stop doomscrolling the news without it hurting my ability to survive. I want to live an existence where my greatest worries are will my flock and crop perform this year, and will I be a good parent, spouse, and neighbor. Period. Full stop. This world is so needlessly cruel, dehumanizing, and, irrational that I want out. My dreams of escaping to a mundane life on the land is what gets me out of bed each day and then stops me from making worse choices than demeaning myself for money.
If we hold peoples hands and show them just how utterly fucked they are then maybe we can finally have cogent discussions on how to solve the deep systemic problems that lead to inane situations like this, without it taking generations.
Its just insane how much legal garbage is thrown on the average person these days. If I walk in to a store, I don't have to be presented with a book on the stores terms of service, they all have the standard rights dictated by law (examples: can record video, can inspect bags, may refuse refunds for change of mind). Once you know the standard rules, every store is the same.
Now when you want to buy something on an online store, every single store has its own terms.
I couldn't disagree more about it being a negative result for rule of law. It's important to keep in mind that the law is in no way endemically just and merely represents the political caste's codified consensus. Part of the legal branch's responsibility is weighing whether the law makes sense and whether it should be applied as written. Arguably in this case: no.
What users are presented with aren't terms and services, it's oodles of legalese gibberish. The language is obtuse on purpose and not comprehensible unless you are a corporate lawyer yourself. To put it in programming terms: they have no accessibility and UX to speak of.
That is fine for contracts between corporations, as they are negotiated and vetted by both parties' legal teams, resulting in a document that represents a give and take. If nothing else, it ensures endless work for the people that consider this stuff interesting.
I don't believe regular consumers should be subjected to that nonsense, because there's an inherent imbalance in legal representation between the corporate "person" and the consumer's person, for one. That imbalance is in theory compensated for in consumer protection laws, which wouldn't need to be repeated in these T&Cs or EULAs.
These types of agreements should be condensed to short paragraphs or even bullet points detailing what special agreements you enter into when using the service. If nothing else, to make it easier to filter the text for sections where it expects you to waive basic protections - which is at least unenforceable as far as I understand.
We live in times where corporate compliance departments, the corporate lawyers they work with and corporate "rights" are taken way too seriously, with little to no regard for corporate responsibility or sociability. At the same time, there are a lot of talking heads claiming "the economy servers consumers' interests" and "the free market benefits all".
De facto, these agreements aren't meant to be a bi-lateral agreement protecting both parties to the contract's interests. They're more often than not exclusively meant to cover corporate asses. Is that really a net benefit to society as a whole?
Did you read your credit card or GNU GPL v3.0 license end to end? 99% of users did not.
Does that mean you can violate license terms or decline to pay interest? No. You don't have to read the terms in order to agree to them - it's your choice whether you want to read the contract or not, but if you do sign it you are bound by it if the contract or license was otherwise valid.
But hey, we're entering a golden age of nanny-state collectivism so there's nothing wrong with that: if the masses decide common sense doesn't apply to their situation, then it doesn't. If any business has a problem with that, they can ask the government to print money or issue debt and find a way make them whole. Or just sit back, relax and let the Fed-backed hedge funds buy their stocks. Everyone's happy.
Now I'll call my bank to check if I still have to pay back my house loan.
EULA's and T&C's should have stricter restrictions on them, as they are written unilaterally and the consumers have no chance of objecting to any clauses - especially with digitally offered contracts where you can't cross over anything.
This is a nice step in the right direction, and I hope this ruling applies even when users are forced to "read" a twenty page contract just to call a cab.
I agree, the core problem is not if there's some "I read and agree" checkbox or not.. The problem is that we as a society has accepted EULAs, the first time a private customer encountered this, there should have been a backlash strong enough that no-one ever dared try it again. If a legally binding agreement is required, we should expect a formal meeting with the parties involved, lawyers from both sides discussing and clarifying the terms in the contract, before solemnly signing it. For all cases where this is overkill, it's overkill, and so is any EULA.
The argument goes: “we can be prosecuted if people find out that their kids are mail ordering zero-g hydroponic kush from dudes they met in our online software, unless they have already agreed that it’s not our fault.” Unless you want to do time for pushing kush to kindergartners, you have to make your users agree to all kinds of shit. You make an average of $2.38/yr per user, so you can neither patrol their kush buys nor spend much lawyer time per user.
Maybe if kush was readily accessible to the adults who want it, there wouldn't be an unregulated black market where it can be "easily" purchased by children.
> “In order to create a legally binding contract, a tech company has actually put the terms in front of the user and get them to affirmatively agree to them.”
This is effectively “legal theatre” from the perspective of the user. Companies can and do hide whatever they want in lengthy legalese which can have no limit in size. There should be the equivalent of a plain English abstract which is customised for the use case and target audience.
What we have now is a small percentage people who actually read those terms and conditions and of those people a handful of them write about it and that’s how we learn about dodgy terms and conditions. It’s very haphazard.
There should be a quiz on the accept screen that you are only likely to pass if you read the tos. In order to keep users you would have to make the document as short as possible.
There could even be a short bullet point summary that gives the information in short english and then a longer version that covers all the edge cases and defining common sense.
Interesting idea! Who audits the quizzes to make sure they actually use information relevant to the ToS? I could easily see a company providing their standard insane ToS, several bullet points at the end that simplify things but don't cover everything in the ToS, and then the quiz merely asking about the limited information in the bullet points.
34 comments
[ 0.23 ms ] story [ 83.1 ms ] threadThat sounds like a pretty big deal.
> We also conclude that Uber's terms and conditions did not constitute a contract with the plaintiffs. The app's registration process did not provide users with reasonable notice of the terms and conditions and did not obtain a clear manifestation of assent to the terms, both of which could have been easily achieved. Indeed, a review of the case law reveals that Uber has no trouble providing such reasonable notice and requiring express affirmation from it sown drivers.Here,in remarkable contrast,both the notice and the assent are obscured in the registration process.As a result, Uber cannot enforce the terms and conditions against the plaintiffs, including the arbitration agreement at issue here.
Does anyone believe that'd make any difference? Even if you showed the agreement and forced them to scroll down to activate the "I agree" button, I'm pretty sure nearly everyone that wouldn't click the links to read the agreements would also just scroll down and hit "I agree" without reading.
If the standard is "well nobody reads those things anyway", then a lot of mortgages and credit card agreements could be invalid. Frankly most propositions on the ballot should be invalid, as those aren't even linked in any way to the ballot where you vote. This December's bill in the US congress that was like 5,000 pages long and they only had 2 hours until the vote to read it, that should be invalid.
If there was a plausible alternative agreement they might have agreed to, then I could understand the ruling. But as a matter of law, this seems like a bad call.
Courts should prevent companies from banning AI assistants, that is where they could help.
Nonnegotiated contracts of adhesion with consumers can and should be limited in their scope, what clauses are permissible there and what are not.
I consider this evidence against Uber's case. For example, I recently set up a new smart TV and Google Home sound system for my parents. There had to have been 8 separate legal agreements, each very long, just to get to the point where we had a picture and sound came out the speakers. They are sense blobs of legalese, and most people assume they know what they say, but they don't.
It is ridiculous to ask people to either retain a personal lawyer or pursue their own education in law, just so they can understand and agree to the Terms and Conditions, EULA, and privacy agreements for all their apps.
Is it specifically Uber's fault the vast majority of users don't actually understand what they've agreed to? No. But it's reality, and we can't just ignore it.
It's awfully hard to get the TOS/EULA etc, before purchasing a product which essentially coerces the end user into agreeing under duress. I don't need to sign a eula to take a taxi or train, why should I expect the uber eula to be anything except:
-if I damage the car I pay for repairs
-i agree to pay for the trip
-i agree to follow the laws of the land
?
When I signed a mortgage contract, I had to separately initial every single page and the closing attorney summarized the contents of each section of the contract. That should be the experience they replicate if they want their TOS to be legally binding.
"You agree that you cannot sue Uber but must instead take any disputes through arbitration"
Followed by another similar dialog for every major term.And really, what if you switched the marketing copy and the terms of service? The marketing says how the app works, the terms of service does too, why not pay to advertise the terms of service, and when you sign up, you get to read their beautiful marketing copy.
I disagree because I think it's important that the rule of law is intelligible to ordinary people. It doesn't just apply to Uber's TOS but almost everyone's. We've moved way past the point where someone can be expected to actually have an understanding of the legal ramifications of what they sign. Even if you were to read all of it, hardly anyone can even decipher what rights they actually have if they made it to a court given how counter-intuitive much of it is even to educated people.
>If the standard is "well nobody reads those things anyway", then a lot of mortgages and credit card agreements could be invalid.
I think that's actually a completely legitimate argument and it's why a lot of behaviour in the loan industry can be predatory and why arguments towards "rational consumers" hold little merit. The world has gotten so complex, it's left a lot of people behind.
I'm more worried that if people did understand, they wouldn't sign, but that would essentially opt them out of modern society, so there's a coercive element to tapping "agree."
That's all I want from life, to be left alone, far removed from all the vapid bullshit of "modern society". I want to stop worrying how the game show host in chief is killing my countrymen today. I want to stop doomscrolling the news without it hurting my ability to survive. I want to live an existence where my greatest worries are will my flock and crop perform this year, and will I be a good parent, spouse, and neighbor. Period. Full stop. This world is so needlessly cruel, dehumanizing, and, irrational that I want out. My dreams of escaping to a mundane life on the land is what gets me out of bed each day and then stops me from making worse choices than demeaning myself for money.
If we hold peoples hands and show them just how utterly fucked they are then maybe we can finally have cogent discussions on how to solve the deep systemic problems that lead to inane situations like this, without it taking generations.
It's well past the point of no return. Law failed as an institution.
Now when you want to buy something on an online store, every single store has its own terms.
Worse, they are being produced as such a rate no human can keep up.
Law failed.
What users are presented with aren't terms and services, it's oodles of legalese gibberish. The language is obtuse on purpose and not comprehensible unless you are a corporate lawyer yourself. To put it in programming terms: they have no accessibility and UX to speak of.
That is fine for contracts between corporations, as they are negotiated and vetted by both parties' legal teams, resulting in a document that represents a give and take. If nothing else, it ensures endless work for the people that consider this stuff interesting.
I don't believe regular consumers should be subjected to that nonsense, because there's an inherent imbalance in legal representation between the corporate "person" and the consumer's person, for one. That imbalance is in theory compensated for in consumer protection laws, which wouldn't need to be repeated in these T&Cs or EULAs.
These types of agreements should be condensed to short paragraphs or even bullet points detailing what special agreements you enter into when using the service. If nothing else, to make it easier to filter the text for sections where it expects you to waive basic protections - which is at least unenforceable as far as I understand.
We live in times where corporate compliance departments, the corporate lawyers they work with and corporate "rights" are taken way too seriously, with little to no regard for corporate responsibility or sociability. At the same time, there are a lot of talking heads claiming "the economy servers consumers' interests" and "the free market benefits all".
De facto, these agreements aren't meant to be a bi-lateral agreement protecting both parties to the contract's interests. They're more often than not exclusively meant to cover corporate asses. Is that really a net benefit to society as a whole?
Who ever reads any terms?
Did you read your credit card or GNU GPL v3.0 license end to end? 99% of users did not.
Does that mean you can violate license terms or decline to pay interest? No. You don't have to read the terms in order to agree to them - it's your choice whether you want to read the contract or not, but if you do sign it you are bound by it if the contract or license was otherwise valid.
But hey, we're entering a golden age of nanny-state collectivism so there's nothing wrong with that: if the masses decide common sense doesn't apply to their situation, then it doesn't. If any business has a problem with that, they can ask the government to print money or issue debt and find a way make them whole. Or just sit back, relax and let the Fed-backed hedge funds buy their stocks. Everyone's happy.
Now I'll call my bank to check if I still have to pay back my house loan.
This is a nice step in the right direction, and I hope this ruling applies even when users are forced to "read" a twenty page contract just to call a cab.
This is effectively “legal theatre” from the perspective of the user. Companies can and do hide whatever they want in lengthy legalese which can have no limit in size. There should be the equivalent of a plain English abstract which is customised for the use case and target audience.
What we have now is a small percentage people who actually read those terms and conditions and of those people a handful of them write about it and that’s how we learn about dodgy terms and conditions. It’s very haphazard.
There could even be a short bullet point summary that gives the information in short english and then a longer version that covers all the edge cases and defining common sense.