Terms of service

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Terms of service (also known as terms of use and terms and conditions, commonly abbreviated as TOS or ToS, ToU or T&C) are the legal agreements between a service provider and a person who wants to use that service. The person must agree to abide by the terms of service in order to use the offered service. [1] Terms of service can also be merely a disclaimer, especially regarding the use of websites. Vague language and lengthy sentences used in these terms of service have caused concerns about customer privacy and raised public awareness in many ways.

Contents

Usage

A terms of service agreement is mainly used for legal purposes by companies which provide software or services, such as web browsers, e-commerce, web search engines, social media, and transport services.

A legitimate terms of service agreement is legally binding and may be subject to change. [2] Companies can enforce the terms by refusing service. Customers can enforce by filing a lawsuit or arbitration case if they can show they were actually harmed by a breach of the terms. There is a heightened risk of data going astray during corporate changes, including mergers, divestitures, buyouts, downsizing, etc., when data can be transferred improperly. [3]

Content

A terms of service agreement typically contains sections pertaining to one or more of the following topics:

Among 102 companies marketing genetic testing to consumers in 2014 for health purposes, 71 had publicly available terms and conditions: [4]

Among 260 mass market consumer software license agreements in 2010: [5]

Among the terms and conditions of 31 cloud-computing services in January-July 2010, operating in England: [6]

The researchers note that rules on location and time limits may be unenforceable for consumers in many jurisdictions with consumer protections, that acceptable use policies are rarely enforced, that quick deletion is dangerous if a court later rules the termination wrongful, that local laws often require warranties (and UK forced Apple to say so).

Readability

Among the 500 most-visited websites which use sign-in-wrap agreements in September 2018: [7]

Among 260 mass market consumer software license agreements which existed in both 2003 and 2010: [5]

Public awareness

A 2013 documentary called Terms and Conditions May Apply publicized issues in terms of services. It was reviewed by 54 professional critics [8] and won for Best Feature Documentary at the Newport Beach Film Festival 2013 and for Best Documentary at the Sonoma Valley Film Festival 2013. [9]

Clickwrapped.com rates 15 companies on their policies and practices with respect to using users' data, disclosing users' data, amending the terms, closing users' accounts, requiring arbitration, fining users, and clarity.

Terms of Service; Didn't Read is a group effort that rates 67 companies' terms of service and privacy policies, though its site says the ratings are "outdated." [10] It also has browser add-ons that deliver the ratings while at the website of a rated company. Members of the group score each clause in each terms of service document, but "the same clause can have different scores depending on the context of the services it applies to." [11] The Services tab lists companies in no apparent order, with brief notes about significant clauses from each company. In particular, competitors are not listed together so that users can compare them. A link gives longer notes. It does not typically link to the exact wording from the company. The Topics tab lists topics (like "Personal Data" or "Guarantee"), with brief notes from some companies about aspects of the topic.

TOSBack.org, supported by the Electronic Frontier Foundation, lists changes in terms and policies sequentially, 10 per page, for 160 pages, or nearly 1,600 changes, for "many online services." [12] There does not seem to be a way to find all changes for a particular company, or even which companies were tracked in any time period. It links to Terms of Service; Didn't Read, though that typically does not have any evaluation of the most recent changes listed at TOSBack.org.

Terms of services are subject to change and vary from service to service, so several initiatives exist to increase public awareness by clarifying such differences in terms, including:

Criticism and lawsuits

AOL

In 1994, the Washington Times reported that America Online (AOL) was selling detailed personal information about its subscribers to direct marketers, without notifying or asking its subscribers. That article led to the revision of AOL's terms of service three years later.

On July 1, 1997, AOL posted their revised terms of service to take effect July 31, 1997, without formally notifying its users of the changes made, most notably a new policy which would grant third-party business partners, including a marketing firm, access to its members' telephone numbers. Several days before the changes were to take effect, an AOL member informed the media of the changes and the following news coverage incited a large influx of internet traffic on the AOL page which enabled users to opt out of having their names and numbers on marketing lists. [1]

Sony

In 2011, George Hotz and other members of failOverflow were sued by Sony Corporation. Sony claimed that Hotz and others had committed breach of contract by violating the terms of service of the PlayStation Network and the Digital Millennium Copyright Act. [13]

Instagram

On December 17, 2012, Instagram and Facebook announced a change to their terms of use that caused a widespread outcry from its user base. The controversial clause stated: "you agree that a business or other entity may pay us to display your username, likeness, photos (along with any associated metadata), and/or actions you take, in connection with paid or sponsored content or promotions, without any compensation to you".

There was no apparent option to opt out of the changed terms of use. [14] The move garnered severe criticism from privacy advocates as well as consumers. After one day, Instagram apologized, saying that it would remove the controversial language from its terms of use. [15] Kevin Systrom, a co-founder of Instagram, responded to the controversy, stating:

Our intention in updating the terms was to communicate that we’d like to experiment with innovative advertising that feels appropriate on Instagram. Instead, it was interpreted by many that we were going to sell your photos to others without any compensation. This is not true and it is our mistake that this language is confusing. To be clear: it is not our intention to sell your photos. We are working on updated language in the terms to make sure this is clear. [16]

Zappos

Some terms of services are worded to allow unilateral amendment, where one party can change the agreement at any time without the other party's consent. A 2012 court case In re Zappos.com, Inc., Customer Data Security Breach Litigation held that Zappos.com's terms of use, with one such clause, was unenforceable. [17]

See also

Related Research Articles

<span class="mw-page-title-main">Indemnity</span> Contractual obligation to compensate for losses incurred by the other party

In contract law, an indemnity is a contractual obligation of one party to compensate the loss incurred by another party due to the relevant acts of the indemnitor or any other party. The duty to indemnify is usually, but not always, coextensive with the contractual duty to "hold harmless" or "save harmless". In contrast, a "guarantee" is an obligation of one party to another party to perform the promise of a relevant other party if that other party defaults.

An end-user license agreement or EULA is a legal contract between a software supplier and a customer or end-user, generally made available to the customer via a retailer acting as an intermediary. A EULA specifies in detail the rights and restrictions which apply to the use of the software.

<span class="mw-page-title-main">Apache License</span> Free software license

The Apache License is a permissive free software license written by the Apache Software Foundation (ASF). It allows users to use the software for any purpose, to distribute it, to modify it, and to distribute modified versions of the software under the terms of the license, without concern for royalties. The ASF and its projects release their software products under the Apache License. The license is also used by many non-ASF projects.

<span class="mw-page-title-main">Disclaimer</span> Any statement intended to specify or delimit the scope of rights and obligations

A disclaimer is generally any statement intended to specify or delimit the scope of rights and obligations that may be exercised and enforced by parties in a legally recognized relationship. In contrast to other terms for legally operative language, the term disclaimer usually implies situations that involve some level of uncertainty, waiver, or risk.

A software license is a legal instrument governing the use or redistribution of software. Under United States copyright law, all software is copyright protected, in both source code and object code forms, unless that software was developed by the United States Government, in which case it cannot be copyrighted. Authors of copyrighted software can donate their software to the public domain, in which case it is also not covered by copyright and, as a result, cannot be licensed.

Internet privacy involves the right or mandate of personal privacy concerning the storage, re-purposing, provision to third parties, and display of information pertaining to oneself via the Internet. Internet privacy is a subset of data privacy. Privacy concerns have been articulated from the beginnings of large-scale computer sharing and especially relate to mass surveillance.

A clickwrap or clickthrough agreement is a prompt that offers individuals the opportunity to accept or decline a digitally-mediated policy. Privacy policies, terms of service and other user policies, as well as copyright policies commonly employ the clickwrap prompt. Clickwraps are common in signup processes for social media services like Facebook, Twitter or Tumblr, connections to wireless networks operated in corporate spaces, as part of the installation processes of many software packages, and in other circumstances where agreement is sought using digital media. The name "clickwrap" is derived from the use of "shrink wrap contracts" commonly used in boxed software purchases, which "contain a notice that by tearing open the shrinkwrap, the user assents to the software terms enclosed within".

The Platform for Privacy Preferences Project (P3P) is an obsolete protocol allowing websites to declare their intended use of information they collect about web browser users. Designed to give users more control of their personal information when browsing, P3P was developed by the World Wide Web Consortium (W3C) and officially recommended on April 16, 2002. Development ceased shortly thereafter and there have been very few implementations of P3P. Internet Explorer and Microsoft Edge were the only major browsers to support P3P. Microsoft has ended support from Windows 10 onwards. Internet Explorer and Edge on Windows 10 no longer support P3P. The president of TRUSTe has stated that P3P has not been implemented widely due to the difficulty and lack of value.

<i>Specht v. Netscape Communications Corp.</i> American legal case

Specht v. Netscape, 306 F.3d 17, is a ruling at the United States Court of Appeals for the Second Circuit regarding the enforceability of clickwrap licenses under contract law. The court held that merely clicking on a download button does not show consent with license terms, if those terms were not conspicuous and if it was not explicit to the consumer that clicking meant agreeing to the license.

Privacy-enhancing technologies (PET) are technologies that embody fundamental data protection principles by minimizing personal data use, maximizing data security, and empowering individuals. PETs allow online users to protect the privacy of their personally identifiable information (PII), which is often provided to and handled by services or applications. PETs use techniques to minimize an information system's possession of personal data without losing functionality. Generally speaking, PETs can be categorized as either hard or soft privacy technologies.

BSD licenses are a family of permissive free software licenses, imposing minimal restrictions on the use and distribution of covered software. This is in contrast to copyleft licenses, which have share-alike requirements. The original BSD license was used for its namesake, the Berkeley Software Distribution (BSD), a Unix-like operating system. The original version has since been revised, and its descendants are referred to as modified BSD licenses.

Proprietary software is software that grants its creator, publisher, or other rightsholder or rightsholder partner a legal monopoly by modern copyright and intellectual property law to exclude the recipient from freely sharing the software or modifying it, and—in some cases, as is the case with some patent-encumbered and EULA-bound software—from making use of the software on their own, thereby restricting their freedoms.

Browsewrap is a term used in Internet law to refer to a contract or license agreement covering access to or use of materials on a web site or downloadable product. In a browse-wrap agreement, the terms and conditions of use for a website or other downloadable product are posted on the website, typically as a hyperlink at the bottom of the screen. Unlike a clickwrap agreement, where the user must manifest assent to the terms and conditions by clicking on an "I agree" box, a browse-wrap agreement does not require this type of express manifestation of assent. Rather, a web-site user purportedly gives their consent simply by using the product — such as by entering the website or downloading software.

<i>Register.com v. Verio</i> American legal case

Register.com v. Verio, 356 F.3d 393, was a decision of the United States Court of Appeals for the Second Circuit that addressed several issues relevant to Internet law, such as browse wrap licensing, trespass to servers, and enforcement of the policies of the Internet Corporation for Assigned Names and Numbers (ICANN). The decision upheld the ruling of a lower court which prevented a provider of web development services from automatically harvesting publicly available registration data from a domain name registrar's servers for advertising purposes.

In the middle of 2009 the Federal Trade Commission filed a complaint against Sears Holdings Management Corporation (SHMC) for unfair or deceptive acts or practices affecting commerce. SHMC operates the sears.com and kmart.com retail websites for Sears Holdings Corporation. As part of a marketing effort, some users of sears.com and kmart.com were invited to download an application developed for SHMC that ran in the background on users' computers collecting information on nearly all internet activity. The tracking aspects of the program were only disclosed in legalese in the middle of the End User License Agreement. The FTC found this was insufficient disclosure given consumers expectations and the detailed information being collected. On September 9, 2009 the FTC approved a consent decree with SHMC requiring full disclosure of its activities and destruction of previously obtained information.

Data as a service (DaaS) is a cloud-based software tool used for working with data, such as managing data in a data warehouse or analyzing data with business intelligence. It is enabled by software as a service (SaaS). Like all "as a service" (aaS) technology, DaaS builds on the concept that its data product can be provided to the user on demand, regardless of geographic or organizational separation between provider and consumer. Service-oriented architecture (SOA) and the widespread use of APIs have rendered the platform on which the data resides as irrelevant.

<i>Harris v. Blockbuster, Inc.</i>

Harris v. Blockbuster, Inc., 622 F. Supp. 2d 396, established precedent in the district that when a contract has a clause that authorizes one party to make changes to the "contract" without notification, that it is illusory and hence the entire "contract" is void.

<i>In re Zappos.com, Inc., Customer Data Security Breach Litigation</i>

In re Zappos.com, Inc., Customer Data Security Breach Litigation, 893 F. Supp. 2d 1058, was a United States District Court for the District of Nevada case in which the Court held that Zappos.com's customers were not held to the browsewrap terms of use because of their obscure nature. The courts also held that the agreement was unenforceable because Zappos had reserved the right to change it at any time without informing the customers. This court decision set a precedent for businesses that use browsewrap agreements and/or include a clause in their agreements that allow them to change the agreements at any time. The decision encouraged conversation on how a business should most fairly display its terms of use and how to avoid unfairness and ambiguity when writing them.

<i>Nguyen v. Barnes & Noble, Inc.</i>

Nguyen v Barnes & Noble, Inc., 763 F.3d 1171, was a United States Court of Appeals for the Ninth Circuit decision in which the Court ruled that Barnes & Noble's 2011 Terms of Use agreement, presented in a browsewrap manner via hyperlinks alone, was not enforceable since it failed to offer users reasonable notice of the terms. The decision set an important precedent on the future design and presentation of online contracts for consumer-facing e-commerce sites.

Search engine privacy is a subset of internet privacy that deals with user data being collected by search engines. Both types of privacy fall under the umbrella of information privacy. Privacy concerns regarding search engines can take many forms, such as the ability for search engines to log individual search queries, browsing history, IP addresses, and cookies of users, and conducting user profiling in general. The collection of personally identifiable information (PII) of users by search engines is referred to as tracking.

References

  1. 1 2 Kornblum, Janet (1997-07-29). "AOL dumps new member policy". Archived from the original on 2013-01-19. Retrieved 2006-12-24.
  2. ↑ "Terms of service Definition from PC Magazine Encyclopedia". pcmag.com. 2013. Retrieved 2013-01-07.
  3. ↑ Del Piero, John; Jennifer Swanton; Tony Cardine (2017-08-28). "5 Ways to Secure Your Intellectual Property During Corporate Transitions". Legaltech News. Archived from the original on 2017-10-18. Retrieved 2017-09-05.{{cite journal}}: CS1 maint: multiple names: authors list (link)
  4. ↑ Phillips, Andelka M. (2015). "Genomic Privacy and Direct-to-Consumer Genetics: Big Consumer Genetic Data -- What's in that Contract?". 2015 IEEE Security and Privacy Workshops. San Jose, CA: IEEE. pp. 60–64. doi:10.1109/SPW.2015.19. hdl: 2262/77428 . ISBN   9781479999330. S2CID   14504403.p
  5. 1 2 Marotta-Wurgler, Florencia, and Robert Taylor (2013). "Set in Stone? Change and Innovation in Consumer Standard-Form Contracts" (PDF). New York University Law and Economics Working Papers. 88: 240–285.{{cite journal}}: CS1 maint: multiple names: authors list (link)
  6. ↑ Bradshaw, Simon; Millard, Christopher; Walden, Ian (2010-09-02). "Contracts for Clouds: Comparison and Analysis of the Terms and Conditions of Cloud Computing Services" (PDF). Rochester, NY: Queen Mary University of London - Cloud Legal Project.
  7. ↑ Becher, Shmuel I.; Benoliel, Uri (2019-01-11). "The Duty to Read the Unreadable". Rochester, NY. SSRN   3313837.{{cite journal}}: Cite journal requires |journal= (help)
  8. ↑ "Terms and Conditions May Apply (2013) External Reviews". IMDB. Retrieved 2017-03-15.
  9. ↑ "Terms and Conditions May Apply (2013) Awards". IMDB. Retrieved 2017-03-15.
  10. ↑ "Terms of Service; Didn't Read, home page" . Retrieved 2017-03-15.
  11. ↑ "Terms of Service; Didn't Read, Topics". Archived from the original on 2018-06-16. Retrieved 2017-03-15.
  12. ↑ "TOSBack, The terms of service tracker" . Retrieved 2017-03-15.
  13. ↑ "Sony follows up, officially sues Geohot and fail0verflow over PS3 jailbreak". Engadget. Retrieved 2021-03-06.
  14. ↑ Pepitone, Julianne (December 18, 2012). "Instagram can now sell your photos for ads". CNNMoney . CNN. Retrieved December 18, 2012.
  15. ↑ McCullagh, Declan; Donna Tam (18 December 2012). "Instagram apologizes to users: We won't sell your photos". Cnet. Retrieved 19 December 2012.
  16. ↑ Systrom, Kevin (December 18, 2012). "Thank you, and we're listening". Instagram . Instagram. Archived from the original on May 2, 2017. Retrieved December 19, 2012.
  17. ↑ Goldman, Eric. "How Zappos' User Agreement Failed In Court and Left Zappos Legally Naked". Forbes . Retrieved 1 October 2013.
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