Thursday, August 03, 2017

Reading list: worthwhile terms of service?


Not all digital fine print exculpates liability: some exhorts users to perform before the
consumer relationship has soured. We promise to choose strong passwords (and hold
them private); to behave civilly on social networks; to refrain from streaming shows
and sports; and to avoid reverse-engineering code (or, worse, deploying deadly bots).
In short: consumers are apparently regulated by digital fine print, though it’s
universally assumed we don’t read it , and even if we did, we’ll never be sued for failing
to perform.
On reflection, this ordinary phenomenon is perplexing. Why would firms persist in
deploying uncommunicative behavioral spurs? The conventional answer is that fine
print acts as an option, drafted by uncreative, guild-captured lawyers. Through
investigation of several sharing economy firms, and discussions with a variety of
lawyers in this space, I show that this account is incomplete. Indeed, I identify and
explore examples of innovative fine print that appears to really communicate with and
manage users.
These firms have cajoled using contracts by trading on their brands and identities, and
by giving up on certain exculpatory defenses common to digital agreements. I argue
that the result is a new form of relational contracting, taking on attributes of both mass
market adhesion contracts and more long-term deals.

A fascinating piece, especially for me (because I participated heavily in drafting the Terms of Service for the Archive of Our Own, where we had similar human-readability/user-friendly goals though a nonprofit, noncommercial commitment).  Hoffman concludes that ToS can communicate with users when they are brand-congruent, but I would have put it differently: people are more likely to learn the actual contents of the ToS when the site promotes knowledge of the terms as part of its interactions with users (maybe even part of its branding).  The examples he uses also often involved soliciting feedback from users, which itself is a form of disclosure/communication that goes beyond normal promulgation of the ToS/use of checkboxes.

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