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flim flam and king snakes
Mar. 2nd, 2014 01:46 pmFeeling very ranty today. (Not demonstrably different from any other day.) Absolutely everthing is rubbing me wrong, whether it's hearing a young girl talk about how she and her mom watch Supreme Court oral arguments together (no you don't; you listen to them while the screen displays headshots. Cameras are not allowed in the courtroom) or seeing the Globe yet again reprint the advice that children even under one should have twice-a-year dental appointments, the source for which is the Association of Pedatric Dentists, who I'm sure are totally disinterested and don't have a financial stake in this altruistic recommendation.
But mostly I'm feeling annoyed with people who don't understand copyright who ought to. I submitted something to a writing contest the other day, just for the heck of it (the contest doesn't pay; I thought the prompt was fun), and in the small print of the website it says that by submitting my story I automatically give them exclusive rights to the story for a year in all media regardless of whether they accept it.
Needless to say: no, they don't. Even though I've read those words, I didn't sign anything or click anything that said I accepted, and more importantly, they didn't give me any real and valuable consideration. If I haven't been paid at least a dollar, we don't have a contract.
If you think about it, this is obvious: you can't buy my publishing rights without buying my publishing rights. I can give you permission to publish something, but I can also withdraw that permission, and you can't do anything, because you don't have the rights. You have my permission. And it's conditional.
Companies put this kind of stuff in their terms of service all the time. "Facebook has can use your posts in promoting facebook," etc, etc. "Facebook can tell other people you use facebook." It's there to protect them from nuisance lawsuits - "I saw a status that looked like mine in one of your ads, so you owe me a million dollars!" The average person who sued facebook would lose that suit, because you can't seek damages where there weren't damages. If the uncredited status post didn't get me fired, no harm done. I wasn't going to be able to sell "soooooo tired lol" to anybody for any sum. facebook didn't steal from me; there was nothing to steal.
Unless, of course, there was. If I'm Joe Nobody and facebook says "Joe Nobody uses facebook," no big deal. If I'm Kate Winslet and facebook says "Kate Winslet uses facebook," wait a second. The name Kate Winslet is actually worth money. A Kate Winslet endorsement is something people pay for. There's money in the mix, hence damages. Can facebook advertise using Kate Winslet just because it says so in the terms of service? No.
Most of this stuff is like the liability waivers they made me sign as a kid to go on fieldtrips. My kid signature doesn't mean anything. The school or venue is completely liable for damages if I get hurt. You can tell because if you were on a jury, and a building collapsed on a kid, and the company's defense was "well, the kid was told by a teacher to sign this piece of paper," you would not be persuaded that the company was blameless.
So I understand both sides of these sham contracts. But I hate them. The reality of any contract is that it documents an agreement between a few people at a certain point in time. It's not able to supercede the law, even with money behind it; you can take it to a civil court, where a jury will determine what's fair. That's the determination that has legal force. A judge is going to look at your prenup, but they're going to look at a lot of other things, including a law that says 50/50, before they decide how to divorce your assets. Signing or not signing the prenup has meaning, but it's not binding. That's just a word thrown around on television dramas. I can't, for instance, sell myself into slavery, no matter how "ironclad" the contract, because slavery is illegal.
Going back to the facebook example, facebook could have used Joe Nobody's innoccuous public update without him signing those terms of service. It just wants to raise the odds he won't sue them frivolously, which would take money to defend. So it pretends it made a contract it didn't make, since he doesn't really understand his rights to begin with. When facebook says the terms of service protect facebook, they mostly protect facebook from Joe Nobody. Who didn't have any power at the outset, but who needs to pipe down, facebook thinks.
I hate fake contracts because they confuse people about the role of law; they make the law seem like a power game instead of a mutually-agreed, societally-mediated determination : I will pay you this, and in return, you will do this thing of value to me.
I hate fake contracts because they're a type of bullying. Where a real contract is a document that clarifies what's expected of both parties in a way they both understand, a fake contract is a bunch of noise and bright flashing colors, trying to scare me away from the things I own. It's a sham. Nothing more than sham.
What a shame they don't teach these things in civics. Or in fact teach civics.
But mostly I'm feeling annoyed with people who don't understand copyright who ought to. I submitted something to a writing contest the other day, just for the heck of it (the contest doesn't pay; I thought the prompt was fun), and in the small print of the website it says that by submitting my story I automatically give them exclusive rights to the story for a year in all media regardless of whether they accept it.
Needless to say: no, they don't. Even though I've read those words, I didn't sign anything or click anything that said I accepted, and more importantly, they didn't give me any real and valuable consideration. If I haven't been paid at least a dollar, we don't have a contract.
If you think about it, this is obvious: you can't buy my publishing rights without buying my publishing rights. I can give you permission to publish something, but I can also withdraw that permission, and you can't do anything, because you don't have the rights. You have my permission. And it's conditional.
Companies put this kind of stuff in their terms of service all the time. "Facebook has can use your posts in promoting facebook," etc, etc. "Facebook can tell other people you use facebook." It's there to protect them from nuisance lawsuits - "I saw a status that looked like mine in one of your ads, so you owe me a million dollars!" The average person who sued facebook would lose that suit, because you can't seek damages where there weren't damages. If the uncredited status post didn't get me fired, no harm done. I wasn't going to be able to sell "soooooo tired lol" to anybody for any sum. facebook didn't steal from me; there was nothing to steal.
Unless, of course, there was. If I'm Joe Nobody and facebook says "Joe Nobody uses facebook," no big deal. If I'm Kate Winslet and facebook says "Kate Winslet uses facebook," wait a second. The name Kate Winslet is actually worth money. A Kate Winslet endorsement is something people pay for. There's money in the mix, hence damages. Can facebook advertise using Kate Winslet just because it says so in the terms of service? No.
Most of this stuff is like the liability waivers they made me sign as a kid to go on fieldtrips. My kid signature doesn't mean anything. The school or venue is completely liable for damages if I get hurt. You can tell because if you were on a jury, and a building collapsed on a kid, and the company's defense was "well, the kid was told by a teacher to sign this piece of paper," you would not be persuaded that the company was blameless.
So I understand both sides of these sham contracts. But I hate them. The reality of any contract is that it documents an agreement between a few people at a certain point in time. It's not able to supercede the law, even with money behind it; you can take it to a civil court, where a jury will determine what's fair. That's the determination that has legal force. A judge is going to look at your prenup, but they're going to look at a lot of other things, including a law that says 50/50, before they decide how to divorce your assets. Signing or not signing the prenup has meaning, but it's not binding. That's just a word thrown around on television dramas. I can't, for instance, sell myself into slavery, no matter how "ironclad" the contract, because slavery is illegal.
Going back to the facebook example, facebook could have used Joe Nobody's innoccuous public update without him signing those terms of service. It just wants to raise the odds he won't sue them frivolously, which would take money to defend. So it pretends it made a contract it didn't make, since he doesn't really understand his rights to begin with. When facebook says the terms of service protect facebook, they mostly protect facebook from Joe Nobody. Who didn't have any power at the outset, but who needs to pipe down, facebook thinks.
I hate fake contracts because they confuse people about the role of law; they make the law seem like a power game instead of a mutually-agreed, societally-mediated determination : I will pay you this, and in return, you will do this thing of value to me.
I hate fake contracts because they're a type of bullying. Where a real contract is a document that clarifies what's expected of both parties in a way they both understand, a fake contract is a bunch of noise and bright flashing colors, trying to scare me away from the things I own. It's a sham. Nothing more than sham.
What a shame they don't teach these things in civics. Or in fact teach civics.
