IF YOU DISAGREE WITH THE TERMS OF THIS AGREEMENT, STOP READING NOW.
By Erik J. Heels
First published 4/1/1998; Student Lawyer magazine, “Online” column; publisher: American Bar Association.
This article and/or column (“Column”) is provided to you, the reader (“Reader” or “you”), from time to time by us, the writers and/or columnists (“columnists,” “we,” or “us”), subject to the terms of this agreement (“agreement”) as modified by us with or without notice to you. By reading this column, or any portion thereof, you agree to be bound by its terms.
THIS PART OF THE COLUMN (WHICH, AS DISCUSSED ABOVE, IS ALSO THE AGREEMENT, AS THAT TERM IS DEFINED ABOVE) IS WRITTEN IN ALL CAPS SO THAT WE CAN MAKE SURE THAT YOU REALLY UNDERSTAND THE IMPORTANCE OF THIS LEGALESE. IF YOU DISAGREE WITH THE TERMS OF THIS AGREEMENT, STOP READING NOW.
This subsection and/or paragraph (“paragraph”) has its own rules and conditions of use. By beginning to read this phrase and/or sentence (“sentence”), you agree to read to the end of this sentence, INCLUDING ANY PARTS THAT MAY APPEAR IN ALL CAPS, until such time as you encounter a terminal mark of punctuation; and for the purposes of this sentence, a terminal mark or punctuation shall include, but shall not be limited to, a period, question mark, and/or exclamation point, noting that said “and/or” was chosen for this definition so that the sentence ending in a combination of one or more exclamation points and/or question marks shall be deemed to be covered by the terms of this sentence; although who in their right mind would choose to terminate a sentence in that manner?!
If you think this is verbose, you’re right. But if you really want to see cyberlawyers in action, take a look at Yahoo’s chat agreement that governs the use of Yahoo Chat (http://chat.yahoo.com/). If you can stomach reading the entire 1,400-plus word agreement, you will discover several things. First, Yahoo’s attorneys have way too much spare time on their hands. Second, Yahoo’s chat agreement is very restrictive. Third, Yahoo must be really worried about getting sued.
Like a shrink-wrap software license, which supposedly binds the user who opens the package, users of Yahoo Chat are deemed to have agreed to the terms of the chat agreement when “entering a chatroom.” Interestingly enough, Yahoo’s attorneys, who were careful enough to define the term “you,” chose not to define what “entering a chatroom” means. Imagine the courtroom debate now:
Plaintiff’s attorney: Your honor, plaintiff moves for summary judgment because “entering a chatroom” is not defined.
Yahoo’s attorney: Your honor, the term “entering a chatroom” is defined by industry usage of that term, and hence no special definition of the term is required.
Judge: And yet you choose to define “you.” Plaintiff’s motion is granted.
Or something like that.
Some of the actions that may result in a Yahoo Chat user’s account being terminated include:
1) Causing distress or discomfort upon another Yahoo Chat participant, user, or other individual or entity;
2) Disrupting the normal flow of dialogue in a Yahoo Chat room or otherwise acting in a manner that negatively affects other participants; or
3) Intentionally or unintentionally violating any applicable local, state, national or international law, including but not limited to any regulations having the force of law while using or accessing Yahoo Chat or in connection with your use of Yahoo Chat in any manner.
If I posted this column to Yahoo Chat, would it cause distress to any individual or entity? If the normal flow of dialogue in a particular chat room is chaotic, does contributing to the chaos disrupt that room’s normal flow? And what if I’m using Yahoo Chat on the evening of April 15, past midnight, until the dawn of the 16th, and I’ve chosen not to file my taxes? Have I violated the law while using Yahoo Chat that could result in my loosing my account? What about surfing the Web from the back seat of a speeding taxi with my cellular modem? OK, I’m reaching now. But I have retrieved e-mail from a plane!
There are certainly more of these hypotheticals, because the language of the agreement is so sweepingly broad, the disclaimers so lengthy. Yahoo is not a government entity, so the First Amendment’s free speech protections do not apply–yet. The First Amendment prohibits the government from making laws that restrict freedom of speech. The Supreme Court has, however, found that certain types of speech–such as hate speech and words that incite a riot–are not always protected by the First Amendment. At the same time, the amendment has been expanded in scope, applying to state government as well. Similarly, the amendment has been applied to public and semipublic arenas, such as shopping malls and airports. If the Court were to find certain parts of the Internet to be semipublic, speech in those arenas could not be limited as strictly as in Yahoo’s agreement. Rather than deal with potential liability issues, the Yahoos of the world would most likely choose to simply close up their “public” chat areas.
But we’re not there yet. Today, chat areas are still private. So why all the fuss and why a 1400-word agreement (nearly as long as this column)? Why not just a short, sweet, contract? One reason may be that the online communities like Yahoo and online services turned Internet providers like America Online have so much to loose if bad laws are created anywhere. Unless and until there is a federal law governing cyberspace, we are left with a system governed by state law. There are advantages and disadvantages of this system. A uniform federal law would take all of the guesswork out of various controversies related to Internet activity is. Absent such a law, state courts borrow cases decided outside of their jurisdictions to try to glue together a body of law called “Internet law.” Some do a better job of gluing than others. A case considered “bad” by privacy advocates may get cites as precedent by other states. At least with a single federal law, advocacy groups would have one battle to fight rather than fifty.
If push comes to shove, any law suits filed related to online activities (including Yahoo’s chat rooms) would most likely be decided on narrow contractual grounds or settled out of court. For example, consider the recent case involving a homosexual Navy sailor and America Online (AOL). The sailor had an America Online account and posted a page describing his interests which included the word “gay.” In apparent violation of his contractual rights (see the sailor’s site, http://www.geocities.com/Pentagon/9241/INFO.HTML, for details), an AOL employee turned over the information to the Navy, which, in turn, used the information to try to dishonorably discharge the sailor. As of this writing, the Navy had delayed its plans to discharge the sailor, but the story is front-page (at least as the term “page” is defined on the Net!) news because it’s the first case of its kind. More “precedent” for state court judges. More headaches for corporate law department at AOL, Yahoo, and the like.
Infoseek, Lycos, and Excite also offer Web-based chat services similar to Yahoo’s.
Infoseek’s service is powered by TalkCity and includes a “code of conduct.” The code reads more like a mission statement that a contract, however. And unlike Yahoo’s services, I didn’t have to view it prior to creating my account, which makes it legality as a contract even more questionably than shrink-wrap licenses, which have been upheld in court. In fact, the only clause that appears contractual at all is the tremendously broad statement that “We reserve the right to immediately terminate or suspend access to our chats for conduct that we believe interferes with other peoples’ enjoyment.” Apparently, the chatters don’t have to agree to anything!
Excite’s chat law is called “community standards” and includes the clause “Postings may be removed by Excite and WebCrawler at any time at their sole discretion.” Much of the “community standards” focuses on Excite’s intellectual property rights in the postings and the standard limitations of liability legalese. And yes, the latter was in ALL CAPS.
Lycos’s “terms and conditions” are in the traditional Yahoo-like legalese. But they were buried at the bottom of the chat page – way at the bottom – and I had to really look to find them. At the end of the 1600-word agreement (I’m pretty sure that’s a record), Lycos reminds us, “But most of all, enjoy!” Trust me, I’m enjoying it.
Truth be told, I never did enter any of the Yahoo chat rooms. Nor Lycos, nor Excite, nor Infoseek. Nor have I used Internet Relay Chat (IRC), an older chat protocol. I just don’t see the point. I did notice that the vast majority of Yahoo Chat users were hanging out in sex-related chat rooms, which confirms my suspicion that chat is just a waste of time.
Or is it? Why is Yahoo really making chat available to its users? The answer is simple: to make money–from the software vendors or from advertisers who can display their ads to Yahoo’s users. And even if nobody ever uses Yahoo Chat, there are enough people writing about hypothetical chat law issues that Yahoo stands to benefit from the free press.
So, Yahoo, I got a big kick out or reading your Chat Agreement, even if I never did enter a chatroom (whatever that means). Good luck defending yourself against the inevitable lawsuits that will arise. You might want to chat (no pun intended) with software vendors to see how their shrink-wrap licenses have held up in court.
