You sound like you know a lot about this, and I'm basically a layperson, so please excuse me for asking what are possibly stupid questions--but I still feel like I have to ask them.
> Great, but we need to be clear about who is responsible for use of the account and its credentials. We also need to clarify when it can be suspended or terminated.
Do we, though? I purchased a membership at an ice skating rink last winter, which gave me unlimited entry and access to a private locker. I didn't sign a contract[1].
Is my skating membership any different than an online account, and if not, why are contracts only seen as necessary in the digital realm?
> we need to add some language about ownership and licensing to avoid copyright and other IP issues.
Isn't this stuff laid out in Section 503--the service provider isn't responsible for what their users upload, as long as they take action when they're informed of a violation, or some such? If that's US law, why does it need to get restated in the Tos?
> Do you want to provide feedback? Awesome, but you cannot sue if it is used.
I'm not sure what "if it is used" means, but if, say, someone goes ahead and reuses my review in promotional material without my knowing consent, I think I should be able to sue! That's exactly the problem with agreeing to a contract you don't realistically have the ability to read.
> Do you want to use APIs? Sweet, but there are things you can and cannot do so you don't break or abuse our system.
If someone is abusing your API by, e.g. making too many requests, you should cut them off--why do you need a contract for that?
If it's a private API for businesses, I actually think a ToS is fine. Professionals can reasonably be expected to read business-critical contracts.
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As I acknowledged at the jump, these are probably dumb questions. But--and I'm trying to anticipate your answer here, so maybe it's off base to begin with--if the issue is that a Twitter spammer could sue Twitter for being banned, then we need broader legislation to address that, in a way that applies universally to all companies. Because, clearly you should be able to ban people who spam, contract or no contract.
Although, since restaurants can kick me out for holding up pornographic posters, and I can enter a restaurant without signing a contract... I have to wonder, again, why this is really necessary.
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[1] I did need to sign a waver before stepping onto the rink, in which I acknowledged I might fall and injure myself. However, this wasn't related to my membership, and it was two paragraphs long.
Not stupid questions at all. I'm not entirely sure of the best way to answer this, as the internal quoting is getting messy. Here are my initial thoughts, though:
In a perfect world, maybe we would not need contracts. Certainly not so many. For low risk and low volume agreements, like your skating rink membership, maybe a contract is not helpful. Although I would be interested to know what happens this winter if a pandemic means the skating rink shuts down. Should the rink reimburse customers who only got partial use out of their membership?
There are statutory protections for service providers, but they do not cover everything. For example, they do not give the service provider recourse against the user for their bad actions. They also do not address the service provider's IP, nor do they address licenses from the user to the service provider.
By "feedback," I meant suggestions for changes, like if you told Facebook about a new feature that you would like to see but then sued them if they built that feature. Or if you sent them an email they never saw but then they implemented the feature.
I guess it boils down to three big points:
1. Litigation is nasty and expensive, even if you are totally in the right. It is expensive to go before a judge or jury to say "This user did awful things, so I banned them and did not provide a refund. Here's what they did and why we kept their money." It is much cheaper to cut it off early with a motion to dismiss or motion for summary judgment by saying "This person violated Section 7 of the TOS, so I terminated in accordance with Section 8."
2. Lawyers are hired to look out for their clients' interests. It is their duty to their client, and they can be sued for malpractice if they do not. We generally agree that this is a good thing, I think. But it is a risk to the lawyer, not just the business, if the lawyer leaves a lot of issues open.
3. Your point about legislation is interesting. However, you could approach from the other direction as well, and have legislation that says certain liability cannot be limited or certain actions cannot be taken by businesses regardless of contract. This is what we do now and arguably could/should do more, and it has the added benefit of not making lawyers act out of their clients' interests.
I don't expect this to be very satisfying, but hopefully it at least puts this all in a bit of context.
> Great, but we need to be clear about who is responsible for use of the account and its credentials. We also need to clarify when it can be suspended or terminated.
Do we, though? I purchased a membership at an ice skating rink last winter, which gave me unlimited entry and access to a private locker. I didn't sign a contract[1].
Is my skating membership any different than an online account, and if not, why are contracts only seen as necessary in the digital realm?
> we need to add some language about ownership and licensing to avoid copyright and other IP issues.
Isn't this stuff laid out in Section 503--the service provider isn't responsible for what their users upload, as long as they take action when they're informed of a violation, or some such? If that's US law, why does it need to get restated in the Tos?
> Do you want to provide feedback? Awesome, but you cannot sue if it is used.
I'm not sure what "if it is used" means, but if, say, someone goes ahead and reuses my review in promotional material without my knowing consent, I think I should be able to sue! That's exactly the problem with agreeing to a contract you don't realistically have the ability to read.
> Do you want to use APIs? Sweet, but there are things you can and cannot do so you don't break or abuse our system.
If someone is abusing your API by, e.g. making too many requests, you should cut them off--why do you need a contract for that?
If it's a private API for businesses, I actually think a ToS is fine. Professionals can reasonably be expected to read business-critical contracts.
---
As I acknowledged at the jump, these are probably dumb questions. But--and I'm trying to anticipate your answer here, so maybe it's off base to begin with--if the issue is that a Twitter spammer could sue Twitter for being banned, then we need broader legislation to address that, in a way that applies universally to all companies. Because, clearly you should be able to ban people who spam, contract or no contract.
Although, since restaurants can kick me out for holding up pornographic posters, and I can enter a restaurant without signing a contract... I have to wonder, again, why this is really necessary.
---
[1] I did need to sign a waver before stepping onto the rink, in which I acknowledged I might fall and injure myself. However, this wasn't related to my membership, and it was two paragraphs long.