Will Tumblr's New Terms Of Service Finally Lead To The De-Stupidifying Of Terms Of Service?

from the that-would-be-nice dept

Late last week there was some buzzing over Tumblr's new Terms of Service, which some noted had some amusingly plain language explanations in them, resulting in a bit of news coverage. Having gone through the process of creating terms of service with lawyers before, I'm somewhat jaded on the subject -- even though I thought we had pretty good lawyers who worked with us. The problem, however, is that terms of service, like contracts, are often defined by very specific things that have gone wrong in the past, and the lawyers make their money in trying to keep such things from going wrong in the future. Their job isn't to make your terms fun and friendly, but rather to protect you from getting into legal trouble. We had even suggested doing a "human readable" terms of service to go with the legalese and were warned not to do so -- as it could create problems later on if the human readable section and the legal section were somehow determined to disagree.

Tumblr has apparently decided to take that chance, and some of the quotes that are getting attention are actually from those "human readable" explanations. Such as this little tidbit:
You have to be at least 13 years old to use Tumblr. We're serious: it's a hard rule, based on U.S. federal and state legislation, even if you're 12.9 years old. If you're younger than 13, don't use Tumblr. Ask your parents for an Xbox or try books.
Thing is, that's not really in the "terms" itself, but in a call out explaining the actual terms, which are a bit more legal (though really not too bad). There are also other fun tidbits in the human readable explanations, like:
Don't do bad things to Tumblr or other users. Some particularly egregious examples of automated "bad things" are listed in this section.
One other nice thing in the human readable section deals with the part of most services terms that confuses the hell out of people and often leads to unnecessary freakouts is the license to the site, which is basically just saying you can't upload stuff to a site and then sue them for displaying it. People often misinterpret this clause such that they think it means you're giving the site your intellectual property rights and/or that they're going to go off and sell you stuff. Tumblr directly addresses this by first making it clear you retain rights to whatever, but then also saying:
When you upload your creations to Tumblr, you grant us a license to make that content available in the ways you'd expect from using our services (for example, via your blog, RSS, the Tumblr Dashboard, etc.). We never want to do anything with your content that surprises you.

Something else worth noting: Countless Tumblr blogs have gone on to spawn books, films, albums, brands, and more. We're thrilled to offer our support as a platform for our creators, and we'd never claim to be entitled to royalties or reimbursement for the success of what you've created. It's your work, and we're proud to be a part (however small) of what you accomplish.
It's definitely nice to explain this so clearly, since it's clearly a point where some people go completely crazy in misunderstanding what's being said.

Also, I note, with interest, that it appears that Tumblr has also removed the indemnification clause that is so standard in pretty much any terms of service. I think this is a good move. These things have become totally standard, but I'm curious if anyone can name a single time that an internet service provider invoked the indemnity clause when getting sued? What service provider would actually do that? It would almost certainly turn against them and freak out other users.

The press coverage is also highlighting a few other funny clauses... but those aren't actually in the terms of service, but rather the "community guidelines" which don't need to be nearly as legally relevant. I'll point out a few, but note that funny/human readable community guidelines really aren't that crazy an idea, but Tumblr's guidelines definitely are pretty good. A few amusing tidbits:
  • Uploading Sexually Explicit Video. You can embed anything as long as it follows the other guidelines on this page. But please don't use Tumblr's Upload Video feature to host any sexually explicit videos. We're not in the business of profiting from adult-oriented videos and hosting this stuff is fucking expensive. You can use services like xHamster to host those instead.
  • Impersonation, Stalking, or Harassment. Treat the community the way you'd like to be treated. Don't attempt to circumvent the Block feature. If you want to parody or ridicule a public figure (and who doesn't?), don't try to trick readers into thinking you are actually that public figure.
  • Don't post content that violates anyone's privacy, including personally identifying or confidential information like credit card numbers, social security numbers, unlisted contact information, or private photos of your ex's junk (no matter how attractive).
Honestly, the coolest thing about Tumblr's terms of service is the fact that they've put it on github so you can really see the changes they made very easily, as the system highlights the difference, even for very minor changes. This is a really good idea, and one that it would be nice if other sites followed suit on.

That said, after seeing a couple stories about the new terms before reading them, I expected the terms to be a lot more human readable than they really were. This, once again, likely highlights my experience with lawyers five or so years ago when I went through this process. There really is only so much you can do. Still, this leads to two thoughts. First, just the fact that Tumblr is getting some attention for this makes me wonder if others will now strive for similar (or, better yet, great) simplicity in their terms and policies. That would be a nice and beneficial trend.

The second though is one I've brought up in the past as well: all this really does is highlight just how useless terms of service are in general. Even in a case like this where they're "more readable" most people aren't actually reading them or caring about them. And yet, for legal reasons, every site feels the need to have one (same with privacy policies). All these things really are designed to do is to provide legal coverage, but they do absolutely nothing to actually benefit users. When you have to do things to satisfy legal requirements which don't actually benefit users, it's a total waste of resources.


Reader Comments (rss)

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    Anonymous Coward, Mar 26th, 2012 @ 7:26am

    No.
    Or, as an attorney:
    Heretofore and forthwith, the party of the first part (Tumblr) will not have influenced any other party (of the third party type) to copy, distribute, emulate, or reverse engineer, in any media, known or unknown, for eternity minus one year, the idea (patent pending) of readable and/or (whether mutually exclusive or not)understandable End User License Agreements (hereinafter known as "EULA") or by any other name of agreements agreed to by users, whether human or machine or entity of a type currently known and/or unknown, on this planet, or any other planet or body, discovered or undiscovered, habitated or unhabitated, and any violation shall be adjudicated in a court in East Texas, or wherever the party of the first part chooses, under the laws to be decided by the second party after trial.

     

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    That Anonymous Coward (profile), Mar 26th, 2012 @ 7:30am

    The problem is there are lawyers.
    We pay them to keep us out of trouble real or imagined. There are tons of imaginative ways to assign blame for our actions to others, so we keep pushing to make sure butts are covered.

    We keep making calls for sanity in the law, but there is no such demand that people accept the blame for their own actions.

    People sue fast food places for making their children fat, claiming its the toys. The reality of that situation is you were to lazy to cook, gave in when they whined, or took the easy path... but it can never be the parents fault.

    I expect more people will read Tumblrs terms of service because of the buzz and the plain language. And the plain language will be a hit, people will have some concept of what they mean when its 3 simple lines instead of 3 paragraphs designed to cover 3000 imagined issues.

     

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    Anonymous Coward, Mar 26th, 2012 @ 8:09am

    Quote:
    You can do more if you work together.
    Collaboration works.

    Youtube: The Red Hat Way by RedHatVideos on Jun 26, 2009.

    Answering the question now.

    I doubt that Tumblr's creative explanations will change anything, the problem is not there, is with the law and the people who work with it. Is like the law people have been isolated in some island and evolved into something else entirely and speak another language and the fact that Tumblr had to translate that language to plain language is just a red flag indicating that the time to bring the law into the fold of society is nearing again.

    Also the need to eliminate laws that empower bad behavior should go and that means IP law must die.

     

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    LazyDave, Mar 26th, 2012 @ 8:22am

    The real test, of course, is how Tumblr's TOS stands towards the court in a legal dispute. Time will tell.

     

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    GMacGuffin (profile), Mar 26th, 2012 @ 8:24am

    ... okay, try this angle:

    All these things really are designed to do is to provide legal coverage, but they do absolutely nothing to actually benefit users. When you have to do things to satisfy legal requirements which don't actually benefit users, it's a total waste of resources.

    One very important, though seemingly small part of most TOS is the venue clause saying you have to sue the website in its judicial district. Gosh-knows-how-many people regularly call a lawyer in their town wanting to sue MegaWhateverSite.com for something nasty some user posted about them. General practice plaintiffs lawyers see a textbook defamation case, but many don't know about the site's immunity for 3rd-party posts under 230, or other safe harbors for sites hosting 3rd-party content.

    Plaintiff's lawyer reads TOS, sees venue clause (and potentially-enforceable limitation of liability clauses), can't see viable way out of it, advises local client they can't help -- get a lawyer in Palo Alto. Client decides instead not to sue MegaWhateverSite.com.

    Without the venue clause, even more cases than already are being filed, get filed in every town across the country by well-meaning plaintiffs' lawyers. MegaWhateverSite.com has to defend all by filing a motion to transfer venue and/or dismiss, in the plaintiff's home court.

    MegaWhateverSite.com wins in the end anyway because it's immune and should not have been sued at all. But it spends substantially more resources obtaining local counsel, or getting court permission to practice in that jurisdiction under that jurisdiction's laws.

    So venue clauses in most TOS may well have stopped thousands of pointless and wasteful lawsuits. It benefits the gonna-lose-anyway-user, the well-meaning but underinformed plaintiffs' attorney, and MegaWhateverSite.com's bottom line, which ultimately may flow back to the consumer as well (or not).

     

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    Rocko, Mar 26th, 2012 @ 8:36am

    Interesting, but the closing remarks are odd. This, especially:

    "When you have to do things to satisfy legal requirements which don't actually benefit users, it's a total waste of resources."

    That seems to imply that the TOS are just there for users benefits. They aren't, they're there to set out the relationship between two parties. They're a two way thing, designed to protect Tumblr as well. It seems odd to write off Tumblr limiting its legal exposure as "a total waste of resources" - it seems anything but to me, it's a prudent move.

    I'm all for more readability in legal documents, only - as you touch on - it's actually very hard to do. It's not easy to cover for all eventualities in short, snappy sentences. The laywer's tendency to reach for the precedent doesn't help either.

     

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      Peter, Mar 27th, 2012 @ 2:08am

      Re:

      "they're there to set out the relationship between two parties"

      And when the TOS is couched in such legalese that neither party actually understands anything about the relationship they are getting into, the point of a TOS is.....?

      to protect the lawyer's income?

       

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    sevenof9fl (profile), Mar 26th, 2012 @ 8:36am

    Will Tumblr's New Terms Of Service Finally Lead To The De-Stupidifying Of Terms Of Service?

    We would. never get that lucky

     

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    Vidiot (profile), Mar 26th, 2012 @ 8:37am

    My favorite plain-language EULA

    I'd always heard that plain-language notifications and agreements couldn't possibly be binding, and that they'd fail every test. But when the meaning is so incredibly transparent, what is there to contest?

    This EULA only pops up during OmniGraffle's installation process, but I grabbed a screen cap:

    http://twitpic.com/91n1pz

     

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      John Fenderson (profile), Mar 26th, 2012 @ 8:56am

      Re: My favorite plain-language EULA

      I'd always heard that plain-language notifications and agreements couldn't possibly be binding, and that they'd fail every test. But when the meaning is so incredibly transparent, what is there to contest?


      Of course they're legally binding, and what tests do they fail?

      The problem is that they're imprecise by nature. Legal documents are full of legalese because they strive for precision. It's no different than technical documents in any other field. All technical documents tend to be dry and difficult for outsiders to understand because of this need for precision.

      Plain-language contracts are no less legally binding than traditional ones, but when it comes to defending or contesting them in court the lack of details and precision in them can seriously bite you when the case hinges of some point which is not clearly spelled out in the contract.

       

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    timmaguire42 (profile), Mar 26th, 2012 @ 1:24pm

    As always, the problem is the incentives

    This is common throughout the law. If you own your house, you remember closing day as 2 hours of 8 people sitting around a table (buyers, sellers, buyers' attorney, sellers' attorney, bank attorney, closer), with huge stacks of papers that have to be signed buy one or both parties. The mortgage alone is 2 inches thick, promissory notes, adjustments, tax forms, forms verfiying that other forms have been explained to you...it's similar in any endeavor that involves significant risk.

    Every clause in a TOS is there because, at some point in the past, the lack of it led to a problem. As time goes on, the clauses pile up because the incentive is on the side of making sure that problem doesn't happen again.

    From a legal standpoint, here is no incentive to make things simpler because that will almost inevitably lead to increased risk. Over time, it gets relentlessly more complicated, more expensive, more confusing to the non-lawyer (and sometimes even to lawyers).

    And, of course, no matter how many "I agree" buttons they make you hit, they don't really want you to read it; that's why they present it in an unreadable format. Beyond the most obvious common sense terms, they should be completely unenforceable.

     

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    Anonymous Coward, Mar 26th, 2012 @ 11:55pm

    How do we De-Stupidify Masnick ?

    do you even understand Masnick that if you do not agree with the terms of an agreement, you do not have to enter that agreement.

    If you dont like (or agree with) the terms of a service, you just do not take advantage of that service.

    Just like you dont enter into a contract unless you agree with the terms of said contract. No one is forcing you to use that service, you want too, and if you want too, you have to agree with the terms that services determines.

    What DO you understand Masnick ??

     

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      Peter, Mar 27th, 2012 @ 2:32am

      Re:

      "do you even understand Masnick that if you do not agree with the terms of an agreement, you do not have to enter that agreement"

      and YOU understood the point of the article was not about having to agree with these TOS/contract terms, but the incomprehensible legaleze they are couched in? No?

       

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      Anonymous Coward, Mar 30th, 2012 @ 1:17pm

      More that you, apparently...

       

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    Peter, Mar 27th, 2012 @ 2:05am

    Um

    Their job isn't to make your terms fun and friendly, but rather to protect you from getting into legal trouble. We had even suggested doing a "human readable" terms of service to go with the legalese and were warned not to do so.

    So their job is not to actually make it readable. And the point of a TOS that ordinary people cannot understand (and therefore do not know if they are violating) is......?

     

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