[samtho]

The ToS isn’t law and we desperately need to stop pretending it is.

A ToS a “shrinkwraped” contract. In Apple’s case, it’s enforceability was yet to be tested. We can agree to a lot of things in a contract, but in general, we cannot consent to letting a party break the law at your expense. A judge determined that Apples practices were unlawful and therefore the problematic stipulation of the ToS was struck.

This is an important tool to combat runaway shrinkwrap contracts that can say literally anything and attempt to enforce it.

[MBCook]

It’s not law, it’s a binding legal agreement.

This wasn’t some clickwrap thing you have to click through to play Angry Birds, it was the agreement for signing up for the developer program.

[samtho]

> This wasn’t some clickwrap thing you have to click through to play Angry Birds, it was the agreement for signing up for the developer program.

Both of these operate under precisely the same principle. The same principle is applied when you sign up for a gym membership, a credit card, or install software on your computer. The validity of the shrinkwrap contract is not something I’m challenging here even if I happen to believe they go against the spirit of contracts.

My point is that there are limits as to what you are able to consent to, legally speaking. You can’t typically sue a company for including something in the ToS that you haven’t yet signed which you believe is unenforceable because you suffered no damage and have no standing in the matter. The way to go about this is to agree to the ToS and challenge its enforceability when, specifically, the target stipulations(s) were enforced by the company you made the agreement with. If this stipulation was not legal for them enforce, then it’s perfectly within the rights of the signer to challenge it.

The other dynamic is that the signer is taking on risk by challenging the validity of the contract either as a whole or in part, therefore it’s not necessary asymmetrical.

There are other situations where a “legal contract” can be thrown out, such as being forced to sign one under duress/threat, or even if someone who cannot consent legally signs it.