Month: February 2009

If you didn’t write the contract, you’re the one getting screwed.*

Put another way, contracts and legalese obfuscate the truth.  But plain English contracts wouldn’t do much to help, if that ever happened.

If it isn’t obvious, this Facebook Terms of Service debacle has been weighing on my mind.  How many times have you ever read the TOS before signing up for a site?

Did you read the Facebook TOS when you signed up? I’m guessing, "no."

And even for those who did read the legalese, how many of them understand what it means?** A 13-year-old can’t possibly understand those legal terms.  Hell, I barely do.

Let’s say for a second that it’s a worthy endeavor to make these terms of service readable by anyone 13 and older.

One way would be to include a plain English interpretation of the contract with the legalese. For example, this copyright agreement is much easier to understand than Facebook’s garbled mess:

By signing up, you give Facebook permission to redistribute any content you add to Facebook forever without compensation.

It’s not so simple

But making contracts easy to understand will never happen for a few reasons.

One, it would put lawyers out of work, and they need the business because they write the contracts (so only other lawyers can understand them) and interpret them (because only lawyers can understand them).  It’s called "job security." Well played, legal profession. Well played.

Two, legal holes.  No organization would willingly paint themselves in a corner by issuing a legal opinion before it’s needed. They want the maximum flexibility in interpretation when the time comes.

Three, people wouldn’t use the internet if they understood what the TOS meant. "In perpetuity" is to "forever" as "malignant" is to "you have cancer;" it sounds less scary when you hide it behind jargon or confusing terms.

The marketing team would put the kibosh on it if the legal team didn’t.

And it’s even less simple than that

Let’s say I got inspired one night and built a website called "Contracts in Plain English." On the site, people take contracts and turn them into text you can trivially understand, Wikipedia style. Not only would it inform you about what you’re agreeing to, it might even make you mad enough to do something about it.

But someone would follow the advice and sue me because of a legal mess they got into when interpretation was off or because they interpreted the interpretation incorrectly. The original contract authors would sue me for copyright infringement. Web activity would crawl to a halt as people realize how awful the terms of services are.

Fine, so web activity wouldn’t crawl to a halt.  But how many 13-year-olds would stop and read the English-ized TOS over the legalese?  None. And even if they did understand it, they’re not old enough to understand that "in perpetuity" is a long time, especially for a 13-year-old.

And more important, would you sign up for a site that all your friends use even if the terms of service were less-than-agreeable? Yes you would, and you still wouldn’t read the TOS in the first place.

That’s why plain English terms of service might make you feel better, but they wouldn’t do much to improve anything.

But as long as contracts are written to prevent people from understanding them, this Facebook debacle will not be the last incident caused by legal obfuscation.

Is there a better way that Facebook and others can communicate their legal terms without hiring lawyers or causing more confusion?

*By reading this, you agree to buy me a drink the next time you see me, in perpetuity, without compensation.

**And really, how much should anyone have to know about the law? If the RIAA had it their way, copyright would be a part of everyone’s education.  I say that’s fine as long as it’s taught side-by-side with details of the music industry’s business model.

Dear Facebook,

We own you.

You’d be nothing without us. But my friends and I have come down on the side that we’d rather have you despite our disagreement about how you handled the change to your terms of service.

In your defense, I understand that you needed to cover your ass. I must give you permission to publish and distribute content I added to Facebook; copyright laws are a fickle bitch.

But how hard is it for you to delete everything related to me from your app if I ask? I bet you left no traces of the Fake Prince of Morocco who landed on Facebook.

I deserve as much as the Prince if I ask to delete my own profile from Facebook; I am me, after all. And I own you, not the other way ’round.

And so I ask you to do two things.

First, notify me when you change your terms of service. Make me agree to the changes when I log in. Or email, IM, or message me. Poke me fer fuck’s sake. I’ll even accept carrier pigeon messages.

Second, give me the ability to backup and delete my Facebook profile. If I don’t like your changes, I want my info off your fuckin’ site forever, ASAP, at the push of a button. Ok, two buttons — don’t want to do that accidentally.

Do those two things, and I’ll give you permission to keep my information, likeness, and digital detritus "in perpetuity" yadda yadda yadda.

Don’t do those things, and you’ll set yourself up for the class action lawsuit of a lifetime. There’s even case law backing me up in your home jurisdiction of the Ninth Federal Court Circuit.

Oh, and if you’re thinking of one more change to make to your terms, bump up the maximum liability for damages from $100. I’ll take equity if you don’t have the cash.

After the privacy debacle (times two), the redesign debacle, and now this, you’ve revealed your fatal flaw — horrible communication. Only if you secretly replaced your PR and legal teams with a pet rock could you be capable of such mind-numbing communication incompetence.

Learn your fucking lesson.

Sincerely,

me, part owner of Facebook