TOS;DR: A Nice Idea But Misses The Point

This month the story broke about a new project called TOS;DR.  The abbreviation stands for Terms Of Service; Didn’t Read and it has a noble goal that misses the point.  Their mission statement is

“I have read and agree to the Terms is the biggest lie” on the web.  We aim to fix that.

I’ve blogged before about the difficulty in writing social media terms and conditions and it isn’t hard to see just how complicated these agreements have become.  It’s entirely true that most people don’t read the majority (vast majority) of terms and conditions they accept.  But this project isn’t going to fix that.

The project would ultimately like to present visual summaries of key provisions in the terms for major platforms.  Here, for example, is their visual summary for Twitter’s terms:

Right off the bat I think anyone looking at this summary would be confused.  The first item is a thumbs down on “Right to leave the service.”  Wait, so I can’t leave Twitter? That doesn’t make a lot of sense.  Fortunately, I can click the Expand button below to get a bit more detail on the point.

So there’s a bit more information in the Expanded view.  And it turns out common sense prevails–I do, in fact, have the right to leave Twitter but Twitter maintains some rights to my content until it’s eventually deleted.  So it turns out that one line summary is wrong.

I can also click on the Discussion link to see how the project arrived at this conclusion.  This is where the project continues its problems.  The analysis is pretty thin on the Discussion and even though it’s pointed out that content’s lifespan is an issue with social media (using platforms that propagate content for quick communications) it isn’t addressed within this term summary.  It turns out the summary item has nothing to do with leaving the service, it has to do with how long your content remains after you leave the service.  And considering Twitter is a public network that is being archived by several third parties, I’m not sure why it’s a thumbs down to have your content deleted 30 days later.

Oh, and the right word is “deactivate,” not “deactive.”  Yes, I’m being picky–but it’s the first term of the first platform being analyzed.  Let’s at least proof read that far.

Part of the problem may be the people providing the analysis, which is no fault of the project itself but does show some of the fundamental problems in trying to summarize a lengthy legal document.  It’s common legal knowledge that if you put five lawyers in a room and ask them a question you’ll get seven different answers (at least).  With very few exceptions we have no idea who the project’s analysts may be or how they are qualified let alone how the project decides between conflicting views.

The project itself seems to have questionable content as well.  Take, for example, Twitter’s summary on copyright (here’s the expanded view):

This summary has a lot of problems.  First, as any lawyer can tell you, it is very different to say that there is an unlimited copyright license and a license that is very broad.  In fact, Twitter’s license is not unlimited.  It is not, for example, perpetual (so it can be revoked).  Twitter also does not obtain the right to make derivative works based on your content, so they cannot take your tweets and adapt them into a novel or screenplay.  Those are limits.

So if someone was just reading the initial summary and saw “Unlimited copyright license” they would be getting false information.  If they read the expanded view it gets a bit more accurate, but also has the conclusion that the license “goes beyond the requirements to run the service.”  Really?  I’d like to ask that question of five lawyers in a room.

But these initial problems could, in theory, be addressed as the project matures and gets more (and more qualified) people involved.  But I think there’s another, even more significant problem in the theory behind the project.

Here’s the thing–most lawyers don’t want to say something in 100 words if 10 will suffice.  The problem is that it can be incredibly difficult to summarize in 10 words what you need 100 to say.  This is not a problem unique to contracts–open your glove box and take out your car operators guide if you doubt that.

Terms and conditions, like most contracts, can certainly be designed and written to be user-friendly.  That often takes more time and effort than a standard contract so it may be an exercise in balancing your resources.  Some do it well (Twitter’s terms are very user friendly and peppered with a few tips and translations as well, Tumblr’s terms are easy to read as well); others, not so much.  But that’s where the effort needs to be made–the terms themselves need to be better, more readable, easily understood.  We’re starting to see that trend develop–the new EULA for Windows 8 are said to be very easy to read and we continue to see platforms develop more conversational terms and conditions.  That’s the way we solve the problem with understanding terms and conditions.

Once you start relying on other people to provide one-line summaries based on shorter explanations based on email discussions amongst potentially unqualified people you’re not simplifying social platform terms, you’re playing Legal Telephone.

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12 Comments

Filed under CopyFUD, Copyright, Privacy, Social Content, Social Platforms, Terms and Conditions, Twitter

12 responses to “TOS;DR: A Nice Idea But Misses The Point

  1. Sam

    So in a world where most terms of service are not formatted in a way that a normal person would ever read them how would you suggest users get that information?

    Maybe ToS;DR isn’t an optimal solution, and yes, it looks like their reviews need some work. With that said, would you say that as a compromise ToS;DR is (or could be) better than the nothing that we currently have?

    I think the point isn’t so much to be the best solution, rather it is an attempt at a solution that is attainable now instead of waiting for accountability to come (or not come) from somewhere else.

    • I’m not so sure that current terms can’t be understood or if people are simply unwilling to try and read them in the first place. I’ve mentioned this to a few people and when they actually sit down to review some terms they can understand them without legal training. But it’s a big step to get people to read them in the first place. How do you make people read the terms while still trying to make a seamless and easy way for people to sign up for the latest platform? I don’t know.

      I’m also not sure if ToS;DR is better than the status quo. It could be, if it got things right. But with some of those summaries misstating the terms or not addressing the terms, I think it could be a mistake for people who believe the summaries are true. Kind of like reading the Cliff’s Notes for Romeo and Juliet and it has a typo saying both of them lived at the end (sorry for the spoilers if you haven’t read it, but still worth it).

      The biggest problem right now is less the format or language than the fact that users don’t care. Terms and conditions rarely impact most users and the only time they think about it are when a blog post comes out setting up some hypothetical risk or argument (like the photographer who tearfully deleted her Pinterest board). How do we get people to care about things that don’t impact them? I don’t know the answer to that. It’s a problem that has plagued people who write electronics manuals, mattress tags, and the back of all those credit card applications.

  2. parlannero

    How about the CommonTerms approach? It’s similar to TOS;DR but instead of crowdsourcing TOS evaluations it provides lawyers/site owners with a common summary format and a set of standard formulations.

  3. hugo

    I think you missed the point that this is an alpha project and that we invite people to give this kind of feedback so that we can improve the situation. It would have been silly if I didn’t find it by chance!

    • That’s fair. I did point out that some of the issues could be addressed with perhaps better or more qualified people, but at the end of the day I’m not sure the design of the project is sound. Without a way to address disagreements or proof that a short summary is better than the actual terms, I’m not sure if this solves the problem. If someone is interested in the terms, are they really finding the terms too difficult to understand? Because if they’re just looking at a visual report card of the Twitter terms, for example, they would have no idea what a thumbs down on “Third party” means.

      • hugo

        I agree with all of that. But expecting people to read and understand all terms they sign up for each year is just insane as studies prove. http://www.theatlantic.com/technology/archive/2012/03/reading-the-privacy-policies-you-encounter-in-a-year-would-take-76-work-days/253851/ There are other issues with this approach. People don’t undersetand what “sublicensable” in copyright means for instance; and sometimes services will say: “don’t worry, this is just so that we can host your content and distribute it on the web” which is misleading.

        The project is also much more than just the front page, it is also about the group where anyone can go and ask question, or read discussions about a service’s terms, and in the future other features as we integrate with other nice ideas like CommonTerms’ etc. We can 1) raise awareness about some of the general issues found in ToS and 2) organise debates about some of them to pressure positive changes or 3) at least give people pointers for things they might want to look at because other knowledgeable people found them problematic

        That’s fine if you think this approach isn’t the best 🙂 and thank you for your feedback. Don’t hesitate to subscribe to the group, there are tons of issues to be addressed!

    • I think I do agree with Hugo below. I don’t know how many applications I have installed in 2012. The only time I read the ToS was when I was publishing my first website a couple of weeks back. Reading those ToS, and the other linked agreements took me an hour and a half, and then I did not read the Universal Agreement of the service, because it just became too much. All I wanted was to put up a very simple website that day and I had already spent half of my day in just signing up for the service, installing it and reading the ToS.
      Yes, I do think the agreements are not that difficult for a college-educated individual to comprehend, but they take too long. In an era where we are forced to install or update an application at least once a day, sometimes several times a day, how do we read all those ToS? And what about all those people who did not go to college?
      I think this new service is a start. At least it will show us the important red signs in the agreement we are claiming to have read and understood.

      • Sure, but was there any consequence to you not reading your terms?

      • Till now there have been no major consequences. Usually, it has been inconveniences like installing spyware along with the software, or secondary software that gets included without my knowing. There has also been other inconveniences like third-parties getting access to my email address and then sending me lots of advertising spam.
        Although, I think it is important to identify issues like this, I think it is even more important to know if one’s information would be handed over to law agencies without informing the user, or if one’s data or account is not deletable. Better yet, what does deleting really mean for a company.

      • There are two potential issues here though–first, whether the terms disclosed those activities and you didn’t read them; and second, whether the terms failed to disclose those activities but they had an obligation to do so.

        In the first case, the TOS;DR project would only help insofar as you cared about the terms but viewed the summary. In that case I’m not sure if the short summaries being provided by TOS;DR would help you. They currently aren’t very accurate (that can get better over time, or not) and aren’t very helpful. The thumbs down for Twitter on “Third parties” could mean third party access to your email or third party installation of software or many other things. You aren’t going to know where the terms stand unless you read the terms yourself. If you did read them and didn’t understand, then the question would be if TOS;DR helped you understand those terms (assuming, of course, they understood it and got it right).

        In the second case, TOS;DR isn’t going to help you.

  4. Pingback: How I Cut An Apple Terms of Service 62% While Keeping All The Legal Stuff | SoMeLaw Thoughts

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