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Further Thoughts on Terms of Service: Or, the Map is Not the Landscape.

· January 8, 2013

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Rob and Ross posted recently on Terms of Service (ToS), and “plain-English” distillations of those.  As Rob points out, plain English helps customers understand what they’re getting, but Ross notes that the fine points of the contract are what give “teeth” to the plain English.  To restate that more explicitly: it is the “legalese” that protects consumers, not the “plain English.”  That “plain English” is in many cases not strictly enforceable, precisely because it has been made vague enough to be easily accessible.  “You own your stuff” can mean different things, and the specific will govern the general.

So there’s a tension here:  the more generalized the “plain English” summary of the agreement, the less costly it is to understand the contours of the agreement, but the higher the risk that some important detail is lost in the generalization.  Conversely, the more explicit the summary of the agreement, the clearer everyone’s understanding can be, but the more burdensome it is to parse the summary to arrive at that understanding.

Perhaps you have heard this tension explained as “the map isn’t the landscape.”  A summary has to leave things out, or it wouldn’t be a summary.  I am reminded of how Neil Gaiman put it in American Gods: “The most accurate map possible would be the territory [itself], and thus would be perfectly accurate and perfectly useless.”  So, by necessity, a useful map — or a useful “plain English” version of the ToS — is just an approximation.  But if you really want to understand the landscape that is the ToS, you have to go there yourself.  And that’s expensive.

This brings me to my next point, which is that the problem is not just with the map, but with the landscape itself.  I will explain.

Rob and Ross’s conversation didn’t focus on another purpose that all contracts serve, which is to attempt to predict the future.   So, in addition to giving teeth to generalized commitments such as “you own your stuff”, contracts are also designed to answer the question: “what happens if…?”

Any time you’re receiving a complex service for an indefinite time, there are many reasonable “ifs” to consider.  If we have a dispute in the future, where will we argue?  What state?  What kind of forum?

But this can get messy, as lawyers are, in a sense, professional worriers.  That’s part of our job.  As a result, and given that the costs of lengthy agreements are largely externalized, Terms of Service may have a tendency to grow.  The landscape becomes more complex.

Because, honestly, given the small additional burden of one more paragraph limiting liabilities in the event of an alien invasion, do we really want to live dangerously and let those uncertainties hang out there?

The great thing about the highly competitive nature of the Internet marketplace is that consumers can more easily compare contracts attached to competing services they receive.  As consumers become better acquainted with the comparison sites such as those Rob notes, trips to the landscape that is the ToS will become less burdensome.  Because when a competitor’s ToS is a few mouseclicks away, you’re going to rethink whether alien invasion liability limitation is really necessary.  

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