Terms of service. Let's keep it simple. I'm providing this software for your evalution only. Decide if it's useful and if you do (I don't claim it is), you assume all risk, and I assume none, same with the company that's providing the service, Scripting News, Inc. Further, the hosting I provide is also only for your evaluation. I could at any time stop doing it, or my backups could fail. Please keep copies of all the data stored on the server. If you use the service for illegal purposes we will turn off your account as soon as we find out. These terms will be rewritten by a lawyer shortly.How short and sweet. We all know what we're entering into and we all know the risks. I'll place a sizeable wager that by the times the terms are rewritten, they're incomprehensible.
I can understand why this is - if you've ever written code, you'll know how much it takes to make sure your backside's covered - but nonetheless I can't help but question the logic.
Legal agreements always remind me of the irony of the British driving test. In this country, you are not deemed safe to drive on a motorway until you've completed your test. By the time you've done your test though, you're almost certainly without your trusty driving instructor and are of course, arguably no wiser than the lesson you had right before the test.
When I initiate any legal agreement, I always write a single-sided draft that summarises the essential parts of the deal. This is of course, not legally reliable until it's been re-drafted by a lawyer.
After aforementioned obfuscation, sorry, drafting, it will seldom be less than five times as long and even I find it difficult to pick out the essence of the deal. My father has been in similar situations and found that hundreds of thousands of pounds later and hundreds of pages of contract later, the essence has in fact been left out. I have no idea how much sense it makes to the people I'm dealing with.
All too often, two parties deemed to be legally insecure until a point where neither truly understands what the agreement is. The only thing they both do know is that they're poorer.
I can't help but ponder the age old question: do lawyers exist because people need their skills or do people need their skills simply because they exist? Is law the original protection racket or is it just an unavoidable arms race.
I suspect it's the latter. The question is, how do we disarm?
4 comments:
Ed Dowding
Within the current legal system, I like the creativecommons approach of having a human-readable, machine-readable, and lawyer-readable version of each contract. At least that way we have a reliable human version.
But perhaps it is the law itself that needs revision, not the lawyers? For example, did you know that in New Zealand you can not sue someone? Which means that you don't get hundreds of stupid safety signs, guide rails, and patronising nonsense. I think your victory lies in this direction.
There are many lawyers and few law makers, so strategically it's the easier answer too. It's not Medusa's snakes you go for, but rather take off her head at the neck.
sleepysolicitor
I know that legal documents can be five times as long as might seem necessary, but like Peter said, if I wanted to write a computer program to do something, my code would probably be five times shorter and less effective than that of a good programmer.
As for abolishing suing … if I remember correctly, and I might be wrong, I think NZ does have a similar system of civil liabilities to the UK, except for RTAs, where they have replaced or supplemented civil liability with some kind of collective insurance scheme, which I think works quite well. Motoring is probably a good candidate for this kind of scheme because the accidents are often caused by carelessness rather than culpable negligence, and therefore less easy to deter by the prospect of litigation.
But, in other areas, civil liability works better to serve this purpose. Although its effect can be to require safety signs, guide rails et al, which might be bad, they should be balanced against the benefits accrued by civil litigation; one of which is to deter people from being negligent, and failing to take reasonable steps to prevent actively harming others. Failing to take precautions to ensure that snails don't get bottled in your ginger beer and give people food poisoning isn't necessarily so bad that there's a public interest in a criminal prosecution, but it might be bad enough that we want the brewery to compensate those people it harms.
Civil liability doesn't always work, and sometimes it doesn’t allocate the risk completely efficiently, but abolishing law or the law-makers might do worse!
Finally, litigation itself actually does serve the purpose of deterring every TD&H from spending their lives suing people quite well - the barriers to entry should be sufficiently high to deter litigation-happy opportunists.
Drew B's take on tech PR
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Drew B
http://theblogconsultancy.typepad.com/techpr/
Peter Nixey