The Difficulty with ToS Compliance

Nude photos on Flickr. AdSense on mature websites. Obscene photos on wiki encyclopedias. Corporate blogs on personal blogging services. We’ve seen ’em all. Sometimes we click that feedback link and report the offense to the appropriate authorities, but in most cases, we just turn a blind eye. In most cases, after all, one wouldn’t expect a favorable response timely enough for our taste. Or perhaps we do enjoy the websites or content themselves, and would rather have them online than not.

And aren’t most of us guilty of violating some ToS one way or another? I mean, who hasn’t posted website buttons or header images to his Flickr account, quoted Apple rumours on his blog, hotlinked to third-party images on his Blog*spot blog, sold WoW gold or items, (which are all in violation of the respective providers’ Terms), or other such activities? Don’t tell me you haven’t, at one point in your life, forwarded any chain-mail or any forwarded-type email of some sort. Yes, that’s against certain mail providers’ ToS.

If you haven’t violated any one of your providers’ terms, then congratulations for being a good netizen!

This leads me to wonder on the difficulty of enforcing terms of services. Perhaps for small services with a couple of thousand users, this is easier to manage. But what of large-scale services like Flickr and even blogging platforms like Blogger and, with hundreds of thousands to even millions of users?

Sounds like ToS-enforcement hell to me.

Chinese service providers have content filters and automatic-banning mechanisms, to service their tens of millions of Internet users. But we wouldn’t want to enforce the Great Firewall of China across the whole Web, would we?

This is also one difficulty faced by those who independently (or not) run web services that involve affiliate marketing. Once you let your site display user-created content, what’s stopping your clients from putting up stuff that’s in violation of your affiliate marketing system’s terms of service? You might just find yourself one day losing a months’ worth of revenues because of some recalcitrant account holder posting copyrighted material or kiddie porn on your service.

But sometimes, I’d tend to think that terms of services tend to be a bit too restrictive. For instance, what if I have six Apple-authorized products I would like to use iTunes-purchased music on (iTunes says I’m limited to five)? Or what if I don’t want to use the downloaded tracks on an iPod altogether, but instead on my other-branded music player (by virtue of some hack, of course)? Should I be afraid of the ToS police watching my every move, waiting to pounce on me for an arrest when least expected?

Or what if I want to be that creepy person on Flickr? Hey, I can be creepy at times. Wait, this is much too generic to be a serious contract provision (“Don’t be that guy. You know the guy.”)–okay, it’s a set of guidelines, but still, I can’t be the nice guy online 100 percent of the time. I know some snarky online personalities who are quite the nice guys offline.

More often than not, contracts involving a service provider and an individual end-user tend to be biased towards the former, with all those “we reserve the right,” clauses. Service providers seem to reserve the right to do anything, including play around with your information, share them with the authorities, and even terminate your account or the entire service itself without notice. If they do not explicitly state these in the provisions, then they always have the right to change the terms of the agreement without prior notification. And then there are the “limited liability” clauses, which protect proviers from every liability imaginable (well, unless a legal court says otherwise, but then again, who has the time and money to go to court?).

Of course, some service providers are more lenient than others. Some even expressely indicate that their ToS are in no way legally binding (and I also do tend to exaggerate at times). And users are often guilty of blindly ticking that “I have read the ToS” box and clicking “OK,” without actually reading the fine print. But then again, what can we do? We can’t ask them to revise the terms on the fly, anyway.

My point is that the difficulty with ToS compliance is that we live in a world where companies tend to be biased and users tend to abuse–slightly or unknowingly, at least. Unlike the Force, which has a dark side and a light side, it’s a bit more complicated with all the in-between grey areas.

So if you’re itching to violate your service provider’s terms of service, I’d say feel free to go ahead if you think what you’re doing is reasonable and within fair use.

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