The Terms of Use have been updated
No, I haven’t suddenly Gone Legal and created a Terms of Use to you must agree in order to read this blog!
A few minutes ago, I went to rate a recent movie return on Netflix and was greeted with the all-too-familiar message that I must read and accept their revised Terms of Use before proceeding. I’m one of those people that pays a smidgen of attention to those things, partly because I’m curious to see what they want to do and what they don’t want me to do.
I looked at the ToU. It’s long — 11,531 words according to Microsoft Word, and that doesn’t include the separate Privacy Policy. There was no date, version number, or similar identifier that I could use if I wanted to refer to this version. And, importantly, no information at all about what had been changed.
I’m certainly not a lawyer. But it only makes sense that informed agreement to a document like this should be preferred to “closing your eyes and clicking Agree”. Netflix knows what version of the Terms of Use I had agreed to before, so it’s possible for them to either tell me in English what areas had changed or allow me to display the textual diffs from the version I had previously accepted. And there is no reason not to identify the version number or date on the document.
I don’t mean to single out Netflix; they’re definitely not the only offenders in this area. It seems like every time I update iTunes and every other time I access the iTunes Music Store, I need to accept a ToU update. But not every ToU update is this opaque; I got one the other day that clearly said at the top what areas had changed. I wish I could remember whose that was, so I could thank them here.
I briefly considered whether there was some way that it is possible to “crowdsource” the changes to various products’ Terms of Use, perhaps by putting up a wiki that allows one to see the different versions and compare them. But I suspect that many Terms of Use are probably copyrighted, and copying them over to a wiki might not be considered Fair Use. Can anyone think of a workable way to do this?
Altmode 
Hm. Get everyone to refuse to accept opaque ToS documents, and just not use the service, so it either fixes the problem or goes out of business?
Oh, right. You said “workable”. Sorry.
It would be my guess that legal documents aren’t unique, creative works and therefore aren’t copyrightable. Summary from wikipedia: “Copyright may apply to a wide range of creative, intellectual, scientific, or artistic forms, or “works”. Specifics vary by jurisdiction, but these can include poems, theses, plays, other literary works, movies, dances, musical compositions, audio recordings, paintings, drawings, sculptures, photographs, software, radio and television and broadcasts.” The mere fact that 80-90% of what you see in any TOU reflects almost word for word what you might find in other TOUs shows that they’re not unique.
Well, be careful of that. Remember that about a year ago, the state of Oregon declared that its statutes were covered by copyright and could not be posted on the Internet. That blew over, but there’s no definitive case law on that sort of thing.
Besides: if all the ToUs were “the same”, this wouldn’t be a problem. The problem is exactly that they aren’t the same, and its the differences, the unique bits, that particularly need to be highlighted.