Terms and Conditions, an XML solution for a Legal Problem

Terms and Conditions (and Privacy Policies) are a bitch. I know, because I write them for a living. Yes, it’s me who made you agree to provide that website with an “irrevocable, unlimited, commercial right to access your personal information stored in the service” just so they could fight the spam they tackle on a day-by-day basis. I’m also the guy that these websites call when some random schmuck send them a cease-and-desist letter claiming they hold the copyright on the word “party” or something like that.

Lawyers face a terrible problem, most users don’t read the terms and conditions; this causes them to be unenforceable in some cases (DeFontes v. Dell, Inc., No. 2004-137, 2009, more here) and lawyers tend to create presumptions of acceptance in different terms, which are always uncertain because they are never tested in court. Some lawyers tend to add the “I Agree” button only at the end of the document, some require email confirmation and some just add an “I Agree” checkbox.

In comes CommonTerms. CommonTerms tries to simplify the reading of hard to read legal documents by adding nice icons about how the service providers use your data, if they are allowed to revise the terms for any reason or other information. In order to do so, Common Terms analyzes existing agreements and attempts to draft a database of practices. While their idea is nice, it’s yet to be perfect for the end-user because he needs to know such icons exist and actually read the terms for it.

In comes my solution; however it requires some cooperation from lawyers. Lawyers could use XML tags or RDF, where lawyers could tag their Terms and Conditions with specific tags, such as “Shares your user generated content with 3rd parties” or “allows other users to create derivative works of content you upload”. In terms of Privacy Policies, it may be even easier, as a privacy policy is a set of specific questions, where the Icons just may show “uses 3rd party cookies” or “profiles you and sends information to advertisers”. Now, once the specific list of terms are defined, we can actually create a tag generator so the tech guys could mark the site; then, like websites put the Truste seal, they could mark their website in terms of user-friendliness.

After we get the marking down, we still have some problems, but all are solvable: Self-Enforcement and Information, as well as comparing sites in terms of their Terms and Conditions. The other factor may be creating common grounds for tagging and creating child-friendly filters or other uses that users may do to understand what happens when they post their content in websites: is it sold, reused, mixed, shares or just removed after 36 hours.

The thing is, that as a lawyer, I cannot code and I cannot enforce these things on people: not on other lawyers and not on my clients (or other lawyers’ clients). So, in order to make this happen, a demand has to come from the public, and that’s you.

You also appreciate reading about the EULA Generator.

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