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Website Terms and Conditions Unenforceable – Blockbuster, Facebook and Beacon Oh My!

Website Terms and Conditions have always been bullshit to me. I have posted about them numerous times, especially Social Network and other Sharing sites in relationship to their intellectual property land grab regarding your copyrights and their requiring you to grant them:

” a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use, copy, publicly perform or display, distribute, modify, translate, and create derivative works of (“use”) any content you post on or in connection with ” [insert your favorite sharing site/ social network here]

The presumption on the part of website owners is that you will take any shit that they choose to shovel at you, agree to whatever they say forms a contract between you and them, retaining the ability to change the Terms and Conditions at any time, that you lose the ability to sue in a court of law, must submit to binding arbitration, on their terms and at the location of their choice, and that your visit is a voluntary, reasoned, and contractual obligation.

This is analogous to entering a store and being forced to make a purchase because you walked into their door. Even casino’s don’t pull this crap, and they are a lot more adept at separating you from your money.

Website Terms and Conditions Unenforceable – Blockbuster, Facebook and Beacon

A recent decision of US District Court for the Northern District of Texas has ruled Blockbuster’s Website Terms and Conditions ‘illusory‘ and therefore unenforceable.
Illusory promises are so named because they merely hold the illusion of contract. This is the Whimpy Burger contract, “I will gladly pay you Tuesday for a hamburger today”.  Tuesday never comes….

This case was brought by Cathryn Harris, who was a Blockbuster Online customer, had a Facebook Page and got sucked up in the Beacon Advertising Program. Basically what happened was that her Blockbuster purchases got sucked out of Blockbuster, passed through Beacon and the broadcast on her Facebook Page and ‘shared’ with her Facebook Friends.

The money shot is from the Register UK

“The Court concludes that the Blockbuster arbitration provision is illusory,” said the judge, Barbara Lynn. “There is nothing in the Terms and Conditions that prevents Blockbuster from unilaterally changing any part of the contract other than providing that such changes will not take effect until posted on the website.”
Source: The Register ‘Website terms unenforceable due to unlimited right to amend’
Here is The ruling (6-page pdf)

This is a Victory for everybody with an internet connection.
Doc Searls and the Project VRM folks should be all over this like white on rice. One of the principals of VRM, is that we have the right to manage our relationships with Vendors, by expressly determining what, if any information we share. This is not limited to what information we explicitly provide, but will soon put a stop to website cookie tracking, third party ad network tracking and Behavioral Targeting.

Driving a Stake into ‘binding arbitration’ is just gravy.
My viewing your website does not obligate me to join, purchase, or agree to your terms and conditions at any time for any reason.
This means that every website and social network is going to have to acknowledge that its visitors and  members are the only reason for its existence and change their Terms and Conditions to understand that we are equal partners and not sacks of flesh for you to slice and dice, and sell off to any asshole with a checkbook.