We are updating the Google Terms of Service. The new Terms will go
live on November 11, 2013 and you can read them here.
Because many of you are allergic to legalese, here’s a plain English
summary for your convenience.
Why not just write your TOS in plain English, then? Also, if a company supplies both a "legalese" version and a "plain English" version that differ, which one takes precedent?
"Plain English" is the legal equivalent of pseudocode. (By similar reasoning, the courts are analogous to CPUs.)
The TOS isn't in plain English for the same reason that Android isn't written in pseudocode: the CPUs won't run it.
Also -- pseudocode ignores edge cases, boundary conditions, etc. to make it readable. Production code (and legal documents) can't escape these requirements.
A TOS is a contract between Google and its users. The "CPU" in this case should then be the two parties to the contract (as these are the people meant to directly consume the contract's contents), not the legal system.
The legal system is more like an attached debugger. You wouldn't want different code being interpreted in the runtime and the debugger. Similarly, there should not be a different contract being agreed to and being litigated.
If you routinely sign contracts that you do not believe will stand up in court, you are asking for trouble. If you trust the other party in a contract to adjudicate on your behalf, you are asking for trouble. If you don't trust the other side to adjudicate, you will need an independent third party who can back up its rulings on your behalf. Conveniently, you've already paid for one with your taxes.
The courts are the arbiter of contracts, period.
Edit: your analogy struck me as off, but I couldn't put my finger on why. The parties to the contract don't directly consume the contract, they use the fact that the legal system can do so. So: you and I don't consume the bytecode of our respective Web browsers, but we do use the fact that the CPUs in your respective devices can, so that we can debate this online. The applications are written for the CPUs; the contracts are written for the courts.
Yes it is sexy, but it has the smell of a dangerous rhetoric flower.
The CPU is a machine, it is deterministic, same input yields same output.
The legal system may try to be as predictable as possible, it is still a human production built on human language, and cannot be deterministic, not even asymptotically.
They are not making any attempt for the summary to replace the TOS, rather it is intended as a summary for user convenience. I imagine that the only way that they could run into trouble is if someone showed that they deliberately made the summary with the intention of misleading users. Also, if there is an ambiguity in there TOS, then the summary may be invoked when clarifying it, however it seems extremely unlikely that that would happen.
Has this concept ever been tried in court? There's an implication there that it's translated into "plain English". They even use the word "legalese". What's the difference between a blog post and a static webpage legally or even technically and what's the significance of that difference?
Read the Terms page. No "plain English" there. You're basically arguing that a company can't publish a summary of any of its contracts, anywhere. On its face, that's ridiculous. Heck, most/all mortgages in the US are required to have a summary document (that's the HUD). IANAL but I'd wager good money that there's established precedent here.
Also, Google has good attorneys. Do you think that a broad principle like "posting a summary of a legal document binds you to the summary instead of the document" would sneak by? I doubt it.
Sometimes you have to get comfortable with the idea the non-programmers are as good at their disciplines as programmers are with theirs.
"Sometimes you have to get comfortable with the idea the non-programmers are as good at their disciplines as programmers are with theirs."
I'm not under the impression that "programmers" are good at their discipline. Myself included. At the same time I wasn't trying to imply that the lawyers didn't know what they were doing. I was asking for conversation purposes about something that I didn't understand: The relationship between the two documents. You brought up an analogy seeming to show that you know the legal side, so I was asking further questions because I was interested in learning.
I think this is more nuanced than you're making it. What if the summary actually contradicted the terms? That summary could definitely be grounds for a lawsuit. I was just curious where that line was.
Technically, the legalese version is written in plain English. ;)
But snark aside, I don't think this plain English version is all that enforceable since it doesn't mention at any point about being a contract that you're agreeing to. IANAL, but I think this is part of why the actual TOS isn't written in "normal English". All the stuff that makes it binding (or is supposed to, anyway) and prevents lawyers from twisting the words is what we call legalese.
I don't so much blame companies for this sorry state, but the legal system and the lawyers who inhabit it. Google and the like are just doing what they must to navigate in that environment.
Nice little question, but that doesn't change the fact that you have to be a lawyer yourself to buy the argument that pages of legalese is "plain english".
It would certainly be open to the user to argue before a court that as the plain English version was more easily understood and avoided obscure legal terms, then that is the version that is enforceable against them.
This is particularly the case in the EU where legislation requires consumer-facing agreements to be in language that users are able to understand.
As far as I'm aware the issue has not been directly tested before a court. In part because the two-tiered approach is not adopted by many companies, and also because disputes over company's terms rarely reach court. It would definitely be interesting to see a court's take on the two-tiered approach though.
Speaking of plain English terms, at my workplace I recently re-drafted our main consumer-facing agreement to use exclusively plain English. This is likely to mean we would be more likely to enforce it, and also, I don't feel any certainty has been lost or if there has been any reduction this is outweighed by the benefit in making the terms more digestible by users.
"If you have a Google Account, we may display your Profile name, Profile photo, and actions you take on Google or on third-party applications connected to your Google Account (such as +1’s, reviews you write and comments you post) in our Services, including displaying in ads and other commercial contexts. We will respect the choices you make to limit sharing or visibility settings in your Google Account. For example, you can choose your settings so your name and photo do not appear in an ad."
Now the question is where are the settings? I assume it will be allowed by default. Will my choice be respected in the long run?
I don't know. It looks like this is for using ads in social search. Technically they are pushing hard to make YouTube just a subset of Google+ though, so who knows what extent this affects people, but it seems pretty restricted right now.
I wish other companies would borrow this "format" when they update their ToS. Even providing an easily accessible diff without me doing the work would be helpful. Too many times have I clicked on a ToS update to be directed to the new terms with a short note saying they're being updated on a certain date.
They provide handy diffs of hundreds of sites' ToS and privacy policies (and you can mail them to add others). You can also get Docracy to mail you when selected sites update their ToS.
[EDIT] - hmm, last updated in July, looks like they might have abandoned it :(
Where is the option for Google to pay me if they choose to use my image or likeness in "Shared Endorsements"? I can't see why anyone who is even a minor celebrity/blogger whose livelihood depends on being in the public consciousness would want to enable this option.
The other question is "what happens should Google fail to respect my choice not to enable shared endorsements?".
