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A lot of web sites, like Github or Facebook, have terms of service for the platform as a whole but also let me publish stuff on pages that I have some control over. I can post a README file on my Github repository, or make a post on my Facebook page, or write in my Instagram bio.

Can I put additional terms of service in there? Like, can I say that by using my Instagram profile (going there, clicking around, checking it every day for new posts, etc.), you agree to indemnify me for any damages that may result to third parties from you using my Instagram profile? As with a web site, acceptance is signaled by using the thing, and if you do not accept the contract, I forbid you to use the thing.

Or can I say that, by accessing some repository I have posted on Github, you agree to this contract that requires you to not enforce any patents you might hold against me for the code I am posting on that repository? (Separate from any license agreement; I mean that the contract would be accepted by going to the Github page and clicking around, searching the issue list, editing the wiki, etc.)

As with the web, it's often possible for me to revoke a person's access to my part of a third-party site (usually by blocking them), so not being blocked and thus being allowed to access the content I have posted to the third-party site might count as consideration?

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Can I put additional terms of service in there?

You could, but the user would need to explicitely agree with them. Given that there is no method to do so, they would never take effect.

If the user claims they did not read or agree with your additional contract, unless you can prove otherwise, it would revert to whatever the legal situation was without your contract.

Like, can I say that by using my Instagram profile (going there, clicking around, checking it every day for new posts, etc.), you agree to [...]

No. Browsing your instagram is free and allowed. To restrict it would need both parties consent. Consent cannot be given by drive-by-contract. You cannot throw a stone through someone's window wrapped in a letter stating "by receiving this stone you agree to pay for all damages". That is not how contracts work.

So to sum it up: you need consent. Consent can be given and there are rules how it can be given. Sometimes it needs to be written, sometimes spoken, sometimes a nod will be enough, sometimes, acting according to the agreement might be enough. But in all cases, the agreement has to be known. Yours is not. I can just not read it. Unless it pops up and won't let me continue without reading it, there is no way to show that I indeed read it, or agreed to it.

That said, I mentioned that not having an agreement with you, the legal situation reverts to it's default. For browsing Instagram or Facebook, that default is "yes, sure, thats what it was made for". But what if the default is "no"? For example, take source code or a picture taken by you and posted on Instagram. The default is that you have copyright on your work. You gave a license to publish it to GitHub/Instagram respectively. Anybody viewing it can do so, but they cannot use or republish it. They do not have a license to that, you did not give it to them.

Lets say you put a readme with a license that says "You can use this freely if you send me a beer every Friday". Obviously a little more legalese should be involved, but you get what I mean.

Now the user can claim they did not read that license and are not bound by that license. But... that would make their situation even worse. Because then when using or republishing your work, instead of owing you a few beers as per the contract, they have no license at all and are in violations of copyright laws.

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  • Browsing my Instagram isn't completely free and allowed; doing it constitutes agreeing to Instagram's terms of service, because they put a link to their terms of service on the page to give notice of the terms, and the terms stipulate that using the page forms a contract under those terms. I'm interested in why Instagram gets to do that but I don't, even if we can both put notices on the same page. If they were selling me plain web hosting, I could definitely put up my own legally binding terms of service on my hosted web site. Why not my hosted social media profile?
    – interfect
    Commented May 31 at 12:32
  • And you think that is a valid contract? I browse Instagram and they magically form a contract with me? That is not how that works. Now if you have an account and to make that account you agreed to their terms, sure, that is a valid contract. If they didn't allow you to browse, unless you clicked a checkmark on their terms, yes. But just by browsing while a link to their terms exists? No. That is not how contracts are formed.
    – nvoigt
    Commented May 31 at 12:39
  • This method of contract formation merely by notice and use is called "browse-wrap", and, while relatively weak in the sorts of terms that are able to be enforced, my understanding is that, in the US at least, it is usually held to actually form a contract. See for example law.stackexchange.com/a/84812
    – interfect
    Commented May 31 at 12:49
  • Do you know of any of those "browse wraps" that would enforce anything? Anything at all? Anything that would not be allowed if it had not existed? That is not a trick question, maybe it really works that way in the US. It doesn't where I live, and nobody has ever tried to enforce something because I browsed their public website, be it hosted in the US or elsewhere. All those TOS that tell you they can "do X if you do Y", they could "do X" anyway, for any non-discriminatory reason they pick. Are there any TOS actually granting something to the service they didn't have anyway?
    – nvoigt
    Commented May 31 at 13:29
  • Sometimes they will have a clause saying that disputes need to be resolved in the courts of a particular state. So if you read a news site and you want to sue them for not providing timely and accurate warning of a dangerous situation that hurt you, you might have already agreed to do that in their home state.
    – interfect
    Commented May 31 at 13:39
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Github

I don't know about the others, but github explicitly allows (or even recommends) to specify a license for your project. That license can include additional terms and restrictions (e.g. by choosing between MIT, Apache or GPL licenses). Of course you can add very restrictive terms (such as that using your software costs $$$). Patent restrictions or the lack thereof can also be part of the license (Patents are explicitly mentioned in Apache-style licenses, for instance).

Assuming we're talking about public repositories, it will be difficult to control the use, unless you coincidentally find someone using your stuff in his project, in which case you could sue for damages. But to be successful in that, I think your conditions would need to be very clearly and prominently placed on the page. You cannot write something like "This library is available under the MIT license" (the MIT license basically allows all uses of your code, including for commercial purposes) in bold letters and then in some fine print say that "MIT" for you means "MONEY the user INTERFECT gets in THOUSANDS". That would be deliberately misleading and thus a violation of fair competition laws in many countries.

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  • Actually, calling it "restrictions" might be misleading. The legal default is that the other user is not allowed to do anything with that code on GitHub, not unless granted additional permissions by that license. So the license does not restrict, it allows things. Maybe a lot, maybe a little, but from the point of "no license", it only allows more, it cannot restrict any more than the default already does, because the default is "nothing".
    – nvoigt
    Commented May 30 at 5:57
  • @nvoigt Formally true, but unrealistic in practice. Assume Bob has a repository with no license. He sues Ed for using parts of his code in a private project. I would expect the judge to say to Bob: "Well, you put this up publicly, so you can't expect that people will not read it".
    – PMF
    Commented May 30 at 6:15
  • Reading it is fine, using it is not. And that is the law, I would expect any judge to know that and act accordingly. Obviously judges won't decide on the 513th copied bad hello world example or todo app. But try to copy something worthwhile without permission, I guarantee you that you get into trouble in practice, too.
    – nvoigt
    Commented May 30 at 7:22
  • I probably shouldn't have mentioned Github. I am not asking about code copyright or licensing, but just the fact that I can post text and links on GitHub and use it sort of as a web host to publish something very like a web site. We know web sites (like StackExchange) can have legally binding contracts that you automatically agree to by using them. If you transform such a web site into a README.md on a Github repository, do its terms magically stop forming contracts with people who use it?
    – interfect
    Commented May 31 at 12:42

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