@OrionKidder afaik what seems to be enforceable depends strongly on the order of things:
- point browser to a domain
- get served bullshit paragraph
- read "click means you agree"
- click anyway
- bullshit is now enforceable
You had the opportunity to sit down, think, ponder, and decide not to click. But you clicked anyway, so now you're fvcked.
@pluralistic
@otte_homan @pluralistic I cannot speak to what a judge would find, but on its face, this seems like the kind of thing that ought to be ruled against.
@otte_homan @pluralistic The "terms of service" are linked by not present. We live in a world where you have to click terms of service to use literally any software. There are rights you shouldn't able to sign away: eg, "By clicking this link, you agree I can murder you." That's not a reasonable way to live our lives.
@otte_homan @pluralistic All that being said, it's been explained to me by actual lawyers that judges are specifically trained to avoid "making law." They rule narrowly on statute and precedent essentially until you get to Supreme and/or Appeals courts (depending on how they're named where you are). Those courts' job is to "make law."
@otte_homan @pluralistic It would be a great thing for society if one of these "click to give up half your rights" cases went to the Supreme Court and they found that such "contracts" are not enforceable. With today's US Supreme Court, that would not happen, of course.
@OrionKidder I could imagine a French Supreme Court or a European High Court to decide this way though, if annoyed enough by US companies. And then declare it once and for all settled that a European resident on a computer in Europe connected to a network in Europe would not simply waive all rights when clicking a button, irrespective of where the supplier's HQ is domiciled. Many of those are in Ireland for tax avoiding/optimizing reasons anyway, so we could tickle the Irish High Court into such a decision, LOL. @pluralistic
@otte_homan @pluralistic Sure. I can also imagine the Canadian Supreme Court finding that these contracts are corporate wishful thinking. It's pretty reasonable to go, "No, these flash by in seconds, you know nobody has time to read them, there's essentially no choice in the matter. These are not 'contracts' in any real sense. Bugger off."
@OrionKidder @otte_homan @pluralistic FOSS software such as GPL is an exception to this BTW. The copyleft licenses state that no license is needed to USE the software only to REDISTRIBUTE it. Even then the terms are basically that you must pass to others the rights that you got notably source code access and the right to further redistribution.
BPL v3 contains an "anti-Tivoization" clause to prohibit use of the code in devices that can only run the provided binaries and not local builds of the same binaries. This was introduced in response to Tivo using the Linux kernel but locking their devices against any builds of the Linux kernel but their own. Unfortunately there are so many authors of the kernel that it proved impossible to relicense it as GPL-3 only as too many cannot be reached. Thus scumbags like Tivo get to keep exploiting Linux.