Monday, February 11, 2008

I tried to negotiate the terms of a website EULA and lost. Or did I win?

I'm going to warn you about an awful “Terms of Service” (ToS) term that you might not want to agree to. And I'm going to tell you how I tried to negotiate that term with a big website. I'll tell you the whole story, but first I want to mention that the day I received a form letter from www.ning.com, refusing to negotiate their ToS, I felt really bummed out. Hours passed before I realized I had won, not lost. Here's what happened:

NING provides software and facilities to operate social communities and forums. They wrote me that over 150,000 have accepted their terms of service. The ToS contains this amazing paragraph:

You must be a registered User to create Networks on the Ning Platform. Networks and their Network Creators, in turn, determine whether Users need to be registered with Ning to contribute Content in that Network. That is up to the discretion of the Network Creator. As a User, you are responsible for keeping your password secure. Names of Social Networks and Ning IDs are non-transferable. You will be solely responsible and liable for any activity that occurs under your Ning ID.

I am not a lawyer (my father was!). But I believe that if you agree to this ToS, you have unlimited liability, possibly in the millions, if some hacker figures out how to log in as you and damages Ning. That's true even if you have selected an abstruse password and kept it very secret. Can you imagine 150,000 agreeing to this term? I admit that the risk could be very small, but if they get you, you may lose every dollar you have. And you've agreed in advance not to fight them when they blame you. What is worth that risk? I wouldn't agree to that ToS, and neither would security expert Bruce Schneier. (Here's Schneier's blog.) I asked him about this term, and he wrote to me:
I wouldn't accept it. And my guess is that over 150,000 people didn't bother to read their ToS.

Ning is not the only website to use this term. Here's a search for the offending words.

Now let me ask you: are you one of those people who have blithely agreed to this ToS term? Is the risk that important to you? Please think about it. Lawyers who write ToS's can put in anything they want, as long as we're willing to sign anything they want.

I faced this term a few years ago at a different web site. I'm a software consultant, and I was looking for work. A friend told me to join a website that listed work openings at his company. He said that several were just right for me. “Pick one,” he said, “And I'll help you get the work.” But I could not agree to that ToS clause, so I never saw the job openings and never got the work.

This time I really wanted to join a NING community at PodioBooks.com. I was having trouble producing some audio, and I knew their forums would have the solution to my problems. So I tried a crazy scheme. I edited my own version of the NING ToS. I joined NING, “agreeing” to their ToS, but I immediately wrote them and told them that I had agreed to my own version of the ToS. My change was to add one sentence to the poisonous paragraph. Again, let me emphasize, I am not a lawyer:

You must be a registered User to create Networks on the Ning Platform. Networks and their Network Creators, in turn, determine whether Users need to be registered with Ning to contribute Content in that Network. That is up to the discretion of the Network Creator. As a User, you are responsible for keeping your password secure. Names of Social Networks and Ning IDs are non-transferable. You will be solely responsible and liable for any activity that occurs under your Ning ID. Except that you will not be responsible and liable for any activity that happens under your Ning ID, having kept your password secure, if another person or computer or computer program logs in as you, without your assistance or authorization, and performs any activity.

I must stress that I did this in good faith. I wondered if they would respond to me. I considered that they might accept my change, since their own ToS is so unfair. During the three days it took for NING to respond to me, I consulted the podiobooks forum, asked questions and got answers. I solved my immediate problem. Then I got this message from NING, which I believe is a form letter:

Thanks for your note. Unfortunately, we do not negotiate our Terms of
Service. These are the "rule of the road" that all of our Members and
Network Creators have agreed to without exception on over 150,000 Social
Networks. If we had to negotiate our terms with each and every one, we
would never be able to keep up or get any sleep, for that matter. If you
don't agree to the Terms of Service as they are posted on our website,
you can discontinue your use of the Platform. We would be really sad to
see you go, but unfortunately that's the only choice here. Thanks.

You can't negotiate with a form letter, so I had to leave. I'm no longer a member of NING.But the bottom line is. I did get to use their system, to solve my immediate problem at Podiobooks! I wasn't locked out of their website, and I did NOT bind myself to NING's terms! I will do the same thing in the future, the next time another company tries to force terms on me that I cannot accept. I won't be locked out by some totally unfair ToS. At least, not for a while, so that I can get my work done.

(This has been the full story of my adventure with NING. See my Jan 22 and Jan 30 entries of this year for the beginning of the story.)
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