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Comment by leggomylibro | Hacker News Reader

I actually don't really support these movements. I would prefer that we entirely deligitimize the notion of 'terms of service' having any measure of enforceability or weight.

No, I have not read your terms and I do not agree with them. I do, however, reject the legitimacy of their use and will happily check a box that lets me proceed unmolested.

And by continuing to provide your service to me, you agree that that my implicit rejection of your TOS' legitimacy is correct. That attitude from a customer towards every business is just as reasonable as a business expecting every customer to read and implicitly accept their specific and lengthy legal stipulations.

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I'm with you on that boat... let's hope we never get sued :)

I'm not lawyer, but generally providers can't hold us to a contract if the provider didn't think we would read (bad faith contract). However, we can't void a contract by choosing not to read it. hehe...

You can't outsmart the law -- so unknowingly being stupid might be the best defense :)

Very much on your side I think would be the fact that virtually no one reads them and millions of them are clicked/signed per day. This isn't just a just a case of you not reading a contract you knew you wanted to violate, but you engaging in a very standard practice, known to the companies themselves and everyone else.

The fiction of terms of services only exists so long as they go unchallenged in any major sense.

>I actually don't really support these movements. I would prefer that we entirely deligitimize the notion of 'terms of service' having any measure of enforceability or weight.

> No, I have not read your terms and I do not agree with them. I do, however, reject the legitimacy of their use and will happily check a box that lets me proceed unmolested.

Do you feel the GPL should be enforceable based on the header comments in GPLed source code?

The GPL isn't a contract (in the FSF's opinion anyways), it doesn't restrict any of your rights, it simply grants you a few more. (E.g. to make copies as long as you follow certain rules)

If the GPL was a contract that tried to restrict your rights, then putting in header comments should not make it enforceable.

> If the GPL was a contract that tried to restrict your rights, then putting in header comments should not make it enforceable.

Suppose I modified and distributed GPL code in a compiled binary, without making my modifications available in source form. Suppose also I claim that I didn't notice any header comments or LICENSE.TXT files. On what grounds would the licensor claim that I had agreed to the terms of the GPL?

I'm just pointing out that people who don't think click-through TOS should be enforceable would be inconsistent to simultaneously opine that the GPL should be enforceable simply because it's packaged in text form along with the code.

If you didn't agree to the terms of the GPL then you simply have no right to use the code in the first place, no?

Technically if you don't agree with the terms then you are still able to use the code. An end user can't really violate the GPL.

If they don't make derivative code based on GPL'd code available that would be a violation provided it's software you've downloaded and installed, you have the right to it's source.

The person who's violating the GPL is the person who copied and distributed someone else's code (an action that's normally illegal), not the end user.

The GPL doesn't make you give the source out to everyone, look into Redhat Linux, used to be only customers got the source (and rightfully so!) eventually they made it available to everyone would such a company have been violating the GPL all that time? Doubtful... The GPL states that if they have access to the binaries, if the end-user asks for the source it must be made available in some form, even if not directly available. Hence the BMW source request from a year or so ago, and BMW wound up opening up their code to everyone afterwards, but IIRC they sent the first person to request the code a CD of some sort in compliance.

The fun twist is, say I buy GPL'd software whose code is only released to customers cause they're the only ones running the GPL'd software, I have the full rights to re-release the software to anyone and make changes as well. This allows the software to live on.

The licensor can't claim that you agreed to the terms of the GPL, he can merely claim you committed copyright infringement by creating a derivative work of, and creating copies of, a copyrighted work, without permission.

The difference between the two is that of community standards, in the community of people who click-through TOS and the corporations who publish them it is widely known that nobody reads and does not consider any requirements might apply - the behavior of everyone involved seems to indicate they don't care; among the community of people who use open source it is widely understood that the code will have some sort of license and you should check what it is - companies have open source policies about how you use licenses etc, there seems to be lots of community agreement that these things are important.

The two things are different and it is not hypocritical to note that.

ToS don't restrict your rights, either; they simply grant you the limited right to access the service/site/whatever.

I don't really agree with this line of argument, but if it's valid for the GPL, why not ToS?

My interpretation would be that software licenses like the GPL can really only be violated by people and companies that have the capacity to understand them. Asking a layperson to sift though some sites ToS is a burdensome expectation.

I have access to whatever site by virtue of the site responding to my requests. In the absence of the ToS I can do whatever I want and the ToS serve to restrict that. In the absence of the GPL I can do a strict subset of what I can do when the GPL is applied.

I don't need to agree to any terms to be able to make web requests and receive responses. That's just a normal, legal thing to do on the internet.

The GPL is valid because it grants you license to do something that would otherwise be illegal i.e. make copies of a copyrighted work.

>The GPL isn't a contract (in the FSF's opinion anyways), it doesn't restrict any of your rights, it simply grants you a few more. (E.g. to make copies as long as you follow certain rules)

Didn't a court rule a few months ago that it was a contract?

Looks like one did, specifically they ruled that it was both a license and a contract, here's an article on it [0].

I think that just like the ToS example it shouldn't be counted as a contract, and I feel reasonably confident saying leggomylibro feels the same. This isn't a legal judgment on the current state of the law (which I'm not qualified to make), but a moral judgment that contracts shouldn't be able to be created like that.

https://perens.com/blog/2017/05/28/understanding-the-gpl-is-...

This question is actually covered by GPL itself, in section 9, "Acceptance Not Required for Having Copies.":

> You are not required to accept this License in order to receive or run a copy of the Program. Ancillary propagation of a covered work occurring solely as a consequence of using peer-to-peer transmission to receive a copy likewise does not require acceptance. However, nothing other than this License grants you permission to propagate or modify any covered work. These actions infringe copyright if you do not accept this License. Therefore, by modifying or propagating a covered work, you indicate your acceptance of this License to do so.

Well yes, but mostly because things that are licensed under the GPL are generally done so to allow someone to read and learn from them while still acknowledging their commercial value. Also, software licenses are often standardized and available in common language.

If I use a GPL-licensed library, I'm going to be reading it pretty thoroughly. I need to deeply understand how to work with it. It's fair to expect that a developer look at 'LICENSE.md' as well as 'README.md,' when the license generally falls into one of about a half-dozen easy-to-understand categories.

But hey, that's me. 'People' as big as fucking Qualcomm ignore the GPL in the same way that I ignore a TOS, and nobody's cut off their service yet. I'd appreciate if they did, because following the metaphor they are abusing the service in a way that impacts other users, but c'est la vie.

"I would prefer that we entirely deligitimize the notion of 'terms of service' having any measure of enforceability or weight."

You're going to have to change copyright law, then, because one of the biggest things in any competent site's ToS is "You grant us unlimited, perpetual permission to modify/redistribute/host/etc. your content." Without that contractual agreement, most websites and forums and image hosting services could not exist as we know them today.

> You're going to have to change copyright law

It would be about damn time!

Unfortunately, I believe a count of law would side with the company with the TOS.

Yes, OP is aware of the current state of the universe, and proposing a new state.

I wholeheartedly agree. With TOS and overly restrictive employee non-competes.

Maybe, maybe not - it depends on how enforceable the courts consider the TOS, and I'm pretty sure they can't override actual laws or legislation.

Anyways, I mostly don't think about it. Time is a scarce resource, and it's fastest (as well as perfectly reasonable) just to pretend they don't exist. Issues are unlikely to arise, and I consider anything that isn't data under my control to be at the mercy of these providers anyways. If they have a problem with how I use their service or something, they can let me know and stop serving me.

It depends on the jurisdiction. You'd be right for USA, but in many other places click-through agreements (and shrinkwrap agreements for e.g. physically sold software) aren't worth the paper they're (not) written on, they're not considered binding.

I'm curious: which jurisdictions won't enforce a click-through agreement?

It's debatable in the US too.

In the US, browsewrap enforcement is debatable, but my conclusion after looking into this question is that properly-formed clickwrap is enforceable in most US jurisdictions that matter.

Germany for example. The legal argument for it is quite simple. Once a software is sold (in the "buy a license" sense), the manufacturer has no further right to limit your use of the software if they didn't include these terms into the sale contract. Therefore a manufacturer cannot force you to agree to a contract after you've already bought something. That includes click-through agreements if you need to "agree" to them in order to use the software.

The only way to get a EULA to work in Germany would be to include it into the sale contract between the consumer and the vendor at the point of sale.

I think you're confusing software shrinkwrap license terms with click-through agreements. The latter would apply to software as a service and require affirmative consent from the end user/licensee. As far I know online contracts are still enforced under the German Civil Code as long as they're properly formed, just as is the case everywhere else that I know about.

It depends. See MEYER V. KALANICK where the court held some provisions of uber's adhesive terms of service unenforceable since a small hyperlink to a TOS was not considered sufficient notice to the user that they were waiving their right to a trial by jury.

https://casetext.com/case/meyer-v-travis-kalanick-uber-techs...

I mean neither is a giant wall of legal text that everyone is just going to skip over either.

> No, I have not read your terms and I do not agree with them.

Then don't use the service. No one is holding a gun to your head.

How many terms of service have you read? If you haven't read it and understood it for every service you use how do you even know if you are within their terms?

> How many terms of service have you read?

I haven't kept count. I've read a few. I've not read them all.

> If you haven't read it and understood it for every service you use how do you even know if you are within their terms?

I don't. And your point would be...?

http://mimiandeunice.com/2011/03/31/the-social-kool-aid/

I can't believe I can't downvote this more. Who provides services without terms to them? Moms, basically. Beyond moms, service providers have better things to do than provide those services unabated. While I can imagine that partaking of services without honoring those terms is the most awesome thing ever, who in their right mind will continue to offer services if this sympathy becomes the default?

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