Reading list: worthwhile terms of service?

David A. Hoffman, Relational Contracts of Adhesion

Abstract:

Not all digital fine print exculpates liability: some exhorts users to perform before the

consumer relationship has soured. We promise to choose strong passwords (and hold

them private); to behave civilly on social networks; to refrain from streaming shows

and sports; and to avoid reverse-engineering code (or, worse, deploying deadly bots).

In short: consumers are apparently regulated by digital fine print, though it’s

universally assumed we don’t read it , and even if we did, we’ll never be sued for failing

to perform.

On reflection, this ordinary phenomenon is perplexing. Why would firms persist in

deploying uncommunicative behavioral spurs? The conventional answer is that fine

print acts as an option, drafted by uncreative, guild-captured lawyers. Through

investigation of several sharing economy firms, and discussions with a variety of

lawyers in this space, I show that this account is incomplete. Indeed, I identify and

explore examples of innovative fine print that appears to really communicate with and

manage users.

These firms have cajoled using contracts by trading on their brands and identities, and

by giving up on certain exculpatory defenses common to digital agreements. I argue

that the result is a new form of relational contracting, taking on attributes of both mass

market adhesion contracts and more long-term deals.

A fascinating piece, especially for me (because I participated heavily in drafting the Terms of Service for the Archive of Our Own, where we had similar human-readability/user-friendly goals though a nonprofit, noncommercial commitment).  Hoffman concludes that ToS can communicate with users when they are brand-congruent, but I would have put it differently: people are more likely to learn the actual contents of the ToS when the site promotes knowledge of the terms as part of its interactions with users (maybe even part of its branding).  The examples he uses also often involved soliciting feedback from users, which itself is a form of disclosure/communication that goes beyond normal promulgation of the ToS/use of checkboxes.