Terms of Service (TOS) Under Scrutiny - Part II - Forced Arbitration in TOS
IN Part I we gave more of an overview. We expect to have several dozens of parts in the series and we'll break down a long talk into smaller chunks. We're going to deal both with issues and examples. Here are a few.
"You have Zoom and RealVNC?"
So started the talk from the person behind this series.
See? There are many hairy bits in those terms. Note: United States law was the focus of the talk, so we'll focus on that, starting with:
Forced arbitration in Terms and Services
Forced arbitration for agreements needs to end.
From the EFF: "People who want their day in court should be able to have it. That's why EFF has long opposed forced arbitration agreements—agreements that require people to resolve conflicts without going to court—because they place unfair limits on one’s ability to exercise their fundamental rights. Too often, they also act as a get-out-of-jail-free card for companies."
Why stop forced arbitration?
With forced arbitration, any legal action is considered a breach of the agreement and therefore, service can be terminated. This means, even when users have the right to involve legal counsel, the terms state they cannot and upon legal filing or action without arbitration or in some cases after arbitration failed to satisfy the user, access or service is terminated.
Real world example:
A user of Adobe realizes their work is being trained by AI. This is a well known artist, but that does not matter. The user pays for Adobe service but does not want to give up copyright. The AI generates an image clearly based on the original creator work. Well, this can be upsetting because no credit is given to the original creator who owns the copyright.
Now what? No pay, no credit. No copyright protection?
The original creator has no legal recourse if the creator wants to continue using the software.
Having created the image using Adobe, Adobe terms are in play.
The agreement leaves the artist in a terrible position. The artist leaves Adobe.
During a recent conference, an attendee had a great idea. Gather community to use arbitration to change the privacy agreement through arbitration.
I don't know that larger proprietary corps would even engage. However, this could be an interesting effort.
There's more information in consumerreports.org.
Tomorrow we'll take a look at another issue and at the end we'll give plenty more examples. The examples of actual terms help illuminate just how bad the average TOS really became. █