As much as I think Terms of Service documents are broken, I don't like these supposed simplifications, because invariably they simplify too much.
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 (...)
This is, in my opinion, an important clause that does not appear in the simplified version of the text.
I've been through the process of litigating a contract in court. Not fun, but definitely was an exquisite education in the school of hard knocks.
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.
"The column on the right provides a short explanation of the terms of use and is not legally binding."
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'd be pleasantly surprised if the Judge took the "basically" column as the legal interpretation.
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.
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).
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.
The way this was explained to me, and a phrase that I think is very powerful, is that for a contract to be valid there must be a "Meeting of the minds"
(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
And the legality of this isn't fully established; in fact, last I heard, it was being somewhat successfully contested. But there's no sweeping word on the matter yet: you could probably take a ToS violation to court and have it set precedence.
IANAL (but my wife has a JD): it's a fine line; on the one hand, the legal principle of "meeting of the minds" might make the judge rule that the "basically" illustrates the true intentions of the contractual clauses. On the other hand, as you say, judges are often unsympathetic to pleas of ignorance. What you sign in the contract is generally the contract. Most of the time, what this probably means is that judges will take the "basically" summarized version when they feel the contract is egregiously inequitable, and otherwise defer to the legally binding wording.
It's difficult to compare Terms of Service with typical contracts. In the first place, nothing is being signed, and anyways judges are fully aware that no one reads the TOS. I can imagine a reasonable judge ruling that no one would have read the full TOS, and so the "Basically" column is more binding.
... and we will develop more features and services in the future
to the actual TOS:
... 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
(multiple ellipses for brevity)
To my mind that's a pretty big omission, and makes me distrustful of hte rest of the "basic" terms.
Exactly, a clear and simple license should be clear and simple, not legalese with "interpretation". If they don't intend that clause to be there it shouldn't be there.
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.
Neither. The GPLv3 was motivated by practical concerns (tivoization, etc...) and it solves those to the satisfaction of the FSF. GNU software uses it, though Linux and much of the rest of the ecosystem does not. I don't think it's failed.
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.
Agreed, I imagine this will not go over well with 500px users. You would think 500px would respect the IP savvy of artists and avoid (perhaps) patronizing them.
I don’t think it’s patronising at all. The site is acknowledging not only that their customers’ time is valuable, but also that most people won’t bother to read two sentences of plain English—let alone a couple dozen paragraphs of legalese. It may put 500px on slightly shakier legal ground, but as far as the users are concerned, it’s humanising and friendly.
I agree. It seems like 500px is trying to think outside the box to communicate the intentions behind their ToS so that the experience is more transparant. I would assume the thinking is that either almost nobody will read the ToS as is, but maybe some people will actually read the simplified version. The issue of course is that legalese is dense and a simplification is not adequate. As an alternative, I would like to see how people react to a simple statement BEFORE the ToS that explains the company's intentions as an introduction.
The intent of that clause would have been to allow them to a) actually show the images on the 500px site, b) highlight them in "popular images" on the site, c) surface them in API results.
Agreed. Plus the terms do state that all copyright remains with the user. Someone seems to have amended the basically text to reflect this:
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.
Just because it says the terms are not legally binding does not make it so. In fact, I would not be surprised at all if having a short explanation invalidate it. Very risky.
I'm not sure how this differs from a preamble, which are often non-binding in and of themselves. That said, preambles do convey the intent of the agreement, so if something in the agreement is contrary to the intent... you could make an argument that there wasn't a meeting of the minds.
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.
Aren't those clauses in there to cover transferring files to CDNs or backup services?
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.
There are two types of people who generally read the TOS. The type that are specifically looking to make sure that there no deal breakers (for them at least) before using the service. Thes people already have a list of deal breakers and are searching for them.
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)
This is brilliant. It's always seemed crazy to me that terms, laws, and especially contracts are written in legalese that only a trained lawyer could really understand, and yet all lay-people are expected to adhere to the nuances of these rules.
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?
TL;DR TOS are quite refreshing! Of course I'd be interested to hear if this opens them up to any liability due to the summaries inherent imprecision... Can any lawyers chime in on this?
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
on the right provides a short explanation of the terms of use
and is not legally binding.
Obligatory IANAL, but that explicit statement probably covers them from any potential liability from providing summaries.
The trouble is, in most jurisdictions contracts are fundamentally about the understanding between the two parties. There has to be a meeting of minds and everyone has to know what the deal is up-front. You can't just sneak in an unreasonable term by including some tricky language written by a $500/hour commercial lawyer at the bottom of page 17, and then expect that the term will stand up in court if the person reading the contract was a legally untrained consumer and it would have taken them several days and hundreds of dollars of legal advice just to understand the agreement for your $10/month service.
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.
Has this been challenged yet in a court, when someone reading only the right-hand column decides they feel all lawsuity? Is this sort of 'user-friendly interface' covered by existing case law?
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?
I'm not a lawyer, but I have been through the process of litigating a contract in court.
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.
I'm far from being a lawyer, but I think their back is covered since the full license is next to it. CreativeCommons does the same[1]:
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
itself.
We just launched a redesign today that features a new presentation of our TOS (http://hover.com/tos). We take a lot of pride in making all aspects of our service as useful as we can and didn't want our legalese to be the exception to that. We abandoned the "Explain This" approach that 500px took on the basis that we wanted the agreement itself to be friendly, not the explanation of it. (Well, we want the explanation friendly too, but we thought it would be much easier to explain if the agreement itself was approachable.)
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.
Or something that would have to fit in 500px in 12px Helvetica, Arial.
That would be quite nice actually. Our TOS or EULA is about 3 paragraphs, and that's it.
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.
That's probably fine. I'm just regurgitating the feedback I got from the lawyers - you should have exactly one representation of the terms so that people/courts/whatever don't get to pick and choose.
Legal documents are similar to computer programs in that they must be very precise and follow strict rules of construction. The comments in a program's source code would not suffice as instructions to a computer, and neither would an annotation to a legal document suffice for the document itself.
Except, of course, that legal documents are not nearly as precise as programming languages. And most legal documents have a lot of dead code--nobody really knows or cares if that code path is followed anymore. You don't want to be the guy removing sections from a legal document.
>(iii) for any direct damages in Excess of (in the aggregate) $100. //
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.
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.
>Some courts can throw this point out during the case, some may adhere to that. //
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.
I really liked YC's Privacy Policy from their original legal page
Privacy Policy: We're too lazy to look at log files, and haven't yet written any software to do it.
Terms of Use: When you click on a link, our server will send you the corresponding page.
Good legalese IS human readable. The point of legalese is to define everything in absolutely certain terms. Where words are given unusual or overly specific meanings, these meanings should be defined in the document. Legalese can be heavy going, but should never require any knowledge that 90% of the population doesn't already posses.
Of course, having a simplified version is still nice.
The point of legalese is to define everything in absolutely certain terms.
Legalese is what you get when you try to get a precise meaning from an imprecise language. It is like trying to get the type safety of Haskell in PHP, resulting in a lot of verbosity.
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.
Well, for me it's not so much about readability but about verbosity. There's always so much boilerplate that I don't know where to look.
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).
What we need is a Creative Commons for TOS boilerplate, to just copy and paste.
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.
Yeah, I have always wondered why community bulletin boards don't come with a TOS, but internet bulletin boards do.
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?
Well done to whoever spotted this.
I signed up to this site, and now I will delete my account. The simplifications are not accurately simplifying what they should be. Which I think is silly, since the majority of us can read and think, and see that in some cases the simplifications barely match whats actually being said.
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.
True. But we want you to have the truthful information in case someone steals _your_ photos. We'll be able to investigate and find out the truth. Having real name, web-site, twitter or facebook helps us a lot in that.
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.
I assume most of us here at HN do some sort of computer development work. In computers, languages aren't simple, human readable, though modern languages try to be as readable as possible. Why is that? It's because you can't have ambiguity. An ambiguous command could set off a nuke...or break a pacemaker and kill a patient, or something worse.
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....
My take away from this conversation is that everyone could benefit from A simple shared set of TOS and privacy policies, something like open ID for login or creative commons for copyright sharing. It could be branded so people can read it once and know how it works. Having a small set of versions would make case law for one site easily.
applicable to other sites, and you could monetize with a small regular fee to use the branding/trademark , and add a certain number of hours per year for legal advice/representation in cases/suits directly related to the TOS and privacy policy as a premium option. Write once, reuse anywhere.
The "basically" parts don't cover even 10% of the actual terms. As others have said, there are tons of restrictive language in there that are not even hinted at under basically.
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...
Same here. I usually don't come back to sites that do this. Plus, I find it ironic that a site called "500px" requires me to scroll horizontally on a 1024px browser window. =)
This is a nice approach and I think a lot of companies will follow suit. I wonder, are there any good links or resources on generating the Terms Of Service or Privacy Policies in the first place? Or is a lawyer always required?
Reading this just reminds me how awful the state of copyright is. We need a new way for producers of images (and any other digital art for that matter) to make money.
For example, in the real ToS, there's this clause:
This is, in my opinion, an important clause that does not appear in the simplified version of the text.