[darawk]

I mostly agree with you. I'm not making arguments about the behavior of most websites - i'm taking a more abstract perspective.

> and the legal argument had nothing to do with the ability of your average web surfer, but rather the lack of constructive notice on the part of the website

Indeed, I also do not consider websites without constructive notice to have legally binding terms. I'm referring specifically to cases that do have constructive notice.

> but it's clear that contrary to the picture you attempted to present, even in the U.S. legal system it is far from the case that browsing a website implies a contractual relationship with binding terms of service.

Those terms are limited, but there are terms. That is my point. The existence of such a contract is limited, but not zero.

[keldaris]

Okay, so you agree that in the absolute majority of cases users have no legal obligation whatsoever to watch ads, but you're interested in a hypothetical website that has constructive notice for terms of service that specifically include language which says users must watch ads. All right, let's discuss that.

In this case, even though the contract itself is enforcable, it does not necessarily follow that every clause is enforcable. Standard unilateral contract law restrictions apply. To the best of my knowledge, no comparable clause has ever been directly tested in a U.S. court, so we'll have to speculate. However, it is well established that certain types of clauses are invalid for reasons such as being unconscionable (compulsory arbitration clauses are a common example). The extent to which a website's terms of service can restrict your legal right to not download certain network packets or adjust how your browser interprets them is an open legal question, at least in the U.S. (I'm confident no such ToS would be upheld in the ECJ).

Furthermore, if we lived in the (in my opinion, dystopian) world you envision, what happens if due to, for instance, an ISP routing issue the third party advertisements you've "agreed to" aren't loaded onto your computer? Are you in breach of contract? And this is not even touching upon the question of whether a "legal obligation to watch" the content your browser actually displays in the end makes any sense (I don't really see how it could).

Also, while this is an amusing legal question to ponder, I continue to hold that the finer points of contract law in a particular jurisdiction don't really serve to illuminate any underlying moral questions.

[darawk]

> Okay, so you agree that in the absolute majority of cases users have no legal obligation whatsoever to watch ads, but you're interested in a hypothetical website that has constructive notice for terms of service that specifically include language which says users must watch ads. All right, let's discuss that.

I'm not sure exactly how hypothetical it is - I see websites doing this now. But yes, this is what i'm talking about.

> Furthermore, if we lived in the (in my opinion, dystopian) world you envision, what happens if due to, for instance, an ISP routing issue the third party advertisements you've "agreed to" aren't loaded onto your computer? Are you in breach of contract?

I think you can answer this question yourself :). This happens all the time in real world contracts. Some unforeseen, unspecified circumstances crop up, and an arbiter or judge decides whether and to what extent they fall under the existing terms. My personal opinion is that if this happened and it was a condition not explicitly spelled out in the terms, it would not be a breach. Because you basically acted in good faith, and factors beyond your control prohibited you from complying.

> Also, while this is an amusing legal question to ponder, I continue to hold that the finer points of contract law in a particular jurisdiction don't really serve to illuminate any underlying moral questions.

I agree, they don't. I think the basic moral principle is this: You create a thing. You say to the world "Hey world, i'll let you consume my thing, if you do this other thing". The world has the right to say "No thanks, we don't want your thing, because the other thing is too onerous". They do not have the right to say "The other thing is too onerous, but we're going to take your thing anyway, thanks."

[keldaris]

> I think you can answer this question yourself :). This happens all the time in real world contracts. Some unforeseen, unspecified circumstances crop up, and an arbiter or judge decides whether and to what extent they fall under the existing terms. My personal opinion is that if this happened and it was a condition not explicitly spelled out in the terms, it would not be a breach. Because you basically acted in good faith, and factors beyond your control prohibited you from complying.

It's easy to invent more complex issues that render the enforcability of the contract suspect. For instance, I use NoScript. If your ToS notice relies on JS, as most of them do, I won't even see it. Have I agreed to the contract? What if my browser is configured in such a way that I can't see your ad, but I haven't specifically blocked it? Were the precise technical requirements explicitly stated in your ToS? If not, how would I even know how to comply? Even if your legal system recognizes such clauses, they are utterly unenforcable as a matter of fact, if not as a matter of law.

> I think the basic moral principle is this: You create a thing. You say to the world "Hey world, i'll let you consume my thing, if you do this other thing". The world has the right to say "No thanks, we don't want your thing, because the other thing is too onerous". They do not have the right to say "The other thing is too onerous, but we're going to take your thing anyway, thanks."

It's certainly a moral principle, but I doubt you'd find many people who would agree that principle supersedes every other consideration. Even in the crazy world of the U.S. legal system, copyrights and patents have limitations and expirations. If you create a thing and publish it, you certainly have a limited say in what happens to it, but you don't get to dictate terms in perpetuity and at whim, nor should you. In a society that prioritizes the rights of creators to the exclusion of everything else inventions have very little value.

In fact, one could argue that in the case of websites we care so (comparatively) little about the public interest precisely because most websites offer little of significant value.

[darawk]

> It's certainly a moral principle, but I doubt you'd find many people who would agree that principle supersedes every other consideration.

No, it most certainly doesn't. But the burden of proof is very clearly established to be on the side of those wanting to limit private property and contract rights. I see no proof of significant public interest in restricting this right.

> In fact, one could argue that in the case of websites we care so (comparatively) little about the public interest precisely because most websites offer little of significant value.

This is pretty clearly false. Plenty of websites offer enormous value. But even if it weren't, there's a feedback loop here. Content created is influenced by regulatory climate, just as regulatory climate is influenced by content created.