TOSAmend: The easy way to modify web service Terms of Service agreements
Posted: September 2nd, 2011 | Author: owocki | Filed under: technology | Tags: democracy on the internet, digital civil disobedience, power to the users, proof of concept, thought experiment | 37 Comments »
Have you ever read any of the terms of service documents you agree to when you sign up to your favorite web apps?
Of course you don’t. Those documents are tens, sometimes hundreds, of pages long. You sign away even your most basic of rights. They’re in legalise. Even if you could read them, it would take you all day! And you’d have to spend countless more hours just trying to understand the lawyer-talk in them!. And yet, they are REALLY important! Should any discrepancy between yourself and the other party be brought into a court of law, they will could potentially have a HUGE effect (monetary, or otherwise) on your life!
What if, instead of just blindly agreeing to a TOS document you haven’t read, you could just amend the TOS right there on the spot? Right there on the sign-up form.
Did you know that, when you’re signing a legal contract in the United States, you have the right to strikeout any clause that you do not understand or do not agree to? [source] With the TOSAmend bookmarklet, you can also easily do this with web-based contracts and terms of services.
With this handy little javascript bookmarklet I’ve developed, you can. Drag and drop this bookmarklet into your browser bookmark bar to use TOSAmend. I’ve tested in Chrome and Firefox. IE version forthcoming.
When you use the TOSAmend bookmarklet, it will modify the TOS on the page, and pass the amended terms back to the site (via the ‘TOSAmended’ GET or POST parameter), where the web-service can either accept or reject them.
Here’s a 30 second demo of this bookmarklet in action:
Full Disclaimer: I am an web app builder, not a lawyer, so I am unsure where using TOSAmend to amend terms of services would (or would not) hold up in court as a legally-permissible way of modifying a contract. I intend this as an experiment, proof of concept, and as a conversation starter about the relationship between and rights of applications and their users. I assume no responsibility for your use of this bookmarklet in the wild. Use at your own risk.
Here is the bookmarklet one more time. Drag it into your browser bar to use TOSAmend:
Cheers and have fun! For updates on this project, follow @TOSAmend on twitter, join our google group, or check out facebook.com/TOSAmend. Oh, and I’m @owocki on twitter. Happy to answer your questions there.
EDIT: This project is now hosted on a github public repo. Feel free to contribute.
EDIT 2: A debate has broken out on reddit about TOSAmend’s legal viability (in its current form) in the United States.
UPDATE 12/3/2011: I’ve released a legally viable version of TOSAmend. More details @ http://owocki.com/2011/12/03/occupytheweb-change-the-terms-of-online-agreements/
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home. Thanks for stopping by and 
This is dumb and you are dumb for using “disqus”.
Thanks for stopping by. u00a0Do you have anything constructive to add to the conversation?
If you want to hide the end grain of a board, a miter joint is the joint to make.u00a0Miter joints are used for picture frames, door and window trim, and around openings. Miter joints are weak joints – probably weaker than butt joints. Miter joints are a form of butt joints, with the angle at the corner halved between the two pieces being joint.
Thanks for stopping by. u00a0Do you have anything constructive to add to the conversation?
lurk more and doucheify less
lurk more and doucheify less
I’ll take disqus over facebook connect or an individual site registration any day!
This is dumb and you are dumb for using “disqus”.
I love the idea of this. I have to wonder, though – does sending a POST message to a web server have any legal meaning? It’ll just end up in some web server log, ignored by the app and never notified to a person, so I’d think it wouldn’t be a very strong argument. Now, if your app could figure out where to email a modified TOS, that would be much stronger, but of course that’s a lot more work.
I love the idea of this. I have to wonder, though – does sending a POST message to a web server have any legal meaning? It’ll just end up in some web server log, ignored by the app and never notified to a person, so I’d think it wouldn’t be a very strong argument. Now, if your app could figure out where to email a modified TOS, that would be much stronger, but of course that’s a lot more work.Realistically, though, no consumer web site can afford to negotiate individual contracts for individual users, so the best you can really achieve would be to get them to change their standard TOS to have better terms. To that end, I would suggest that you could extend this widget so that it not only nofied the site owner, but also collected a database of TOS objections. Imagine if you could say “10,000 people objected to site X’s standard TOS, and 75% of the objections were to paragraph Y.” That might pressure companies to change their TOS.I’d be happy to build and host the server side, if you’d like. I don’t know much about client side JavaScript, but servers are easy.u00a0:-)If you’re interested email me at laird at popk dot in.
I love the idea of this. I have to wonder, though – does sending a POST message to a web server have any legal meaning? It’ll just end up in some web server log, ignored by the app and never notified to a person, so I’d think it wouldn’t be a very strong argument. Now, if your app could figure out where to email a modified TOS, that would be much stronger, but of course that’s a lot more work.Realistically, though, no consumer web site can afford to negotiate individual contracts for individual users, so the best you can really achieve would be to get them to change their standard TOS to have better terms. To that end, I would suggest that you could extend this widget so that it not only nofied the site owner, but also collected a database of TOS objections. Imagine if you could say “10,000 people objected to site X’s standard TOS, and 75% of the objections were to paragraph Y.” That might pressure companies to change their TOS.I’d be happy to build and host the server side, if you’d like. I don’t know much about client side JavaScript, but servers are easy.u00a0:-)If you’re interested email me at laird at popk dot in.
Laird,nnThanks for stopping by. u00a0nnAgain, I’m unaware of the legal precedent, so I can speak only as a technician: u00a0 The analogy that I’m working with is that the recipient web server has the obligation of validating the TOS POST parameter and the entire POST form in order to accept (or reject) the users registration on behalf of the owners of their company. u00a0In a pre-web world, I wonder how much obligation is placed on say, a bank teller, who fails to notice a crossed-out term in a bank account obligation, and how that would translate to an online world.nnI’m not currently planning on expanding on this project, unless there is massive interest. u00a0 If that happens, I will contact you.nnBest,nKevinn
EDIT: Formatting
Laird,nnThanks for stopping by. u00a0nnAgain, I’m unaware of the legal precedent, so I can speak only as a technician: u00a0 The analogy that I’m working with is that the recipient web server has the obligation of validating the TOS POST parameter and the entire POST form in order to accept (or reject) the users registration on behalf of the owners of their company. u00a0In a pre-web world, I wonder how much obligation is placed on say, a bank teller, who fails to notice a crossed-out term in a bank account obligation, and how that would translate to an online world.nnI’m not currently planning on expanding on this project, unless there is massive interest. u00a0 If that happens, I will contact you.nnBest,nKevinn
I do remember some early ecommerce sites being legally required to honor the price of goods when said price was modified on the URL.u00a0 Therefore there might actually be, if not a precedent, at least an analogous case with regards to the client side modification of the offer from the server.u00a0
“does sending a POST message to a web server have any legal meaning?u00a0″the two obvious answers are eithernYes , thus theu00a0amendedu00a0agreement is binding.nornNo , the original agreement isu00a0not binding in the first place.nnI suspect that someone somewhere thinks a postedu00a0agreement is binding , and that anyu00a0programmeru00a0who’s code doesn’t check to see that the agreement posted matches the agreement served will get fired real soon now.
Lair,nnI’ve just created a github repo for this project. u00a0If you truly are interested in contributing, drop me a line (ksowocki at gmail) and we’ll work out what the project will look like.nnhttps://github.com/ksowocki/TOSAmend/nnKevin
>legalisennYou meanu00a0legalese.
Neat idea!u00a0 I’ll have to give it a try, see what happens.u00a0 Oh, and say “Hi!” to Slashdot.u00a0 Be glad you got found on a weekend, or your site would be crashed by a million techies.u00a0 >X.X<
Funnier would be an applet that recognizes when a TOS dialog box from any provider is being displayed to the user and replaces it with the text “I like bunnies”, so the user is not even clicking through an ostensibly legal license.
Thanks for stopping by Alex.
Veeeery interesting. I am second year law student and this definitely poses at least a couple interesting legal questions. IANAL (yet) and this isn’t legal advice but it seems that this would have different legal effects depending on whether you were contracting for services or goods.nnSimply sending back “your terms” to their server where it would get added to a log somewhere would probably not be enough to establish a contract on those terms. A reasonable person looking at the objective evidence (a rough approximation of the legal standard) would probably not conclude that the company had agreed to your terms. However, depending on what kind of notice the company had and what the two parties’ subsequent action was the sending of these terms might have a real effect.nnI think a lot would depend on the facts of transaction and the specific operation of the javascript.nnI emailed the post to one of my professors that teaches advanced sales (which covers these exact kind of contracting questions) to see what she thinks. It is at the very least an interesting starting point for discussion.
Thanks for passing the post along. u00a0I’d love to hear what your professor thinks when she takes a look.
In general from my understanding of contract revisions, both parties must agree to the the terms that are stricken or changed before the stricken terms are valid.u00a0
IANAL, but wouldn’t both parties have to agree to the *original* terms before they are valid? u00a0I would think that this would at the very least remove the ‘implied consent’ argument from the validity of the initiallyu00a0profferedu00a0contract, which has been relied upon heavily to force users (who generally have had no recourse to alter the terms of the contract) to accept it as stated.nnEven if the user-modified terms can’t be enforced, I think it would make it much tougher to enforce the initial terms, which would still be a win in the consumer column.
No offence, but I’m wondering how a 2nd year law student can’t immediatly spot the problems in this.nnA last-shot (or battle of forms) scenario such as the one above simply won’t work for computers, as it wouldn’t work for saleclerks, because they are not authorised (or capable, in the case of computers) of accepting or renegotiating the amended contract.nnIn the same way that you can’t rewrite an insurance policy or mobile phone contract in a store and expect to have it enforced because the salesperson didn’t understand what you’d done, you can’t say that a server, which does nothing more than process acceptances of the original EULA, can consider the changed terms. As consideration is the touchstone to contract validity, it would collapse before we even got to any of the other, superfluous points.nn
Use of this applet obviously doesn’t indicate that the company has accepted your modified terms — but does it suffice to indicate that you have not accepted the original terms, despite clicking on the “Accept” button?
This is completely meaningless I’m afraid.nnReddit :u00a0http://www.reddit.com/r/law/comments/kqd4b/alright_rlaw_what_do_you_think_useful_tool_for/c2mci9h
Usually one of my cats or one of my 2 yr olds agrees to the terms when I’m not looking.
“I agree that I like ham sandwiches.” loln
What might satisfy the ‘consideration’ aspect of your TOS modification program is if it also sent the modified version to an email address on the host site that was know to be read by a ‘real person’ such as a ‘contact us’ or ‘support’ address.u00a0 If the TOS modification email was preceded with a header such as:nn**** TERMS OF SERVICE COUNTER OFFER ****nn**** IMPORTANT LEGAL DOCUMENT ENCLOSED **** nnor some such language.u00a0 That plus a clause in the modified contract like:nnu00a0″…your lack of response within (a reasonable time period) constitutes your acceptance of these modifications…”nnthen, it might work.nnAt least you’ve given them the opportunity to write back and say no.u00a0 I’m not a lawyer but I know that somebody telling me my inaction affirms my agreement causes me to act.nnOf course, it will probably take a judge and a series of appellate decisions to make the final determination of this process’s validity. n
Very interested in whether or not this will hold up in court. It’s a great idea….I’m loving it already
New idea: turn the principle (proven in law) of the “shrinkwrap/click-thru” agreement on its head. Include boilerplate at the bottom of the edit; something like “By enabling the ‘accept button’ you accept these modified terms. If you do not accept these modified terms, do not enable the accept button.”
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