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Comment by Clubber | Hacker News Reader

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

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.

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.

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.

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.

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