[levosmetalo]

Do you also agree that a person infected with malware also accepted it just because he clicked "Ok" or "Yes" on some of the dialogs?

There is no signature, there is no proof of identity of the signing party (copy of personal ID, witness, ...). Usually no confirmation that other side also accepted it. No copy of ToS received after "accepting". We all know that it could be that, for example, my 4yo child clicked on it when I went to the toilet after reading first few paragraphs of ToS, and now I'm somehow bound to it? Also, it happens very frequently that you "accept" some ToS, and after two years you find on some forum that Google, or PayPal just changed their ToS without sending you the updated copy for acceptance.

Sorry, but too many things that are really different between ToS and a real acceptance of a Contract.

[reginaldjcooper]

If you agreed to a ToS by clicking yes, and the ToS allows them to install malware that's a failure on your part to read it. If your child clicks it, you probably have recourse in civil court because a 4-year-old is not able to execute contracts. Most ToS's include a clause that they can change it at any time; you might not be legally bound by the new one, check that with a lawyer.

It seems like you are angered that you have to enter into a contract before using software, and you would prefer to just click "accept" and have that magically not be interpreted as you agreeing to the terms. "I'll use it but I don't accept the terms". I'd like that too, but I'm afraid that's not how it works.

[levosmetalo]

No, I just say that the fact that someone clicked accept button on some website is not a proof that I accepted anything. If things worked like that you would not be required to go to the bank to sign a contract and take a loan, one mouse click on bank website would be enough.

I could as well write whatever ToS on my homepage with "accept" and "not accept" link with whatever terms, and then wait for Google bot to "accept" my terms. Do you think Google would be bound by their "acceptance" in the same way.

It's not like I was using my digital signature or whatever, it's just that someone clicked somewhere.

The burden of proof here is on the "vendor" or software provider. They need to prove that I accepted their terms, not the other way round. That's why many free services require credit card, copy of the ID and physical signature as a proof of identity. The fact that Google decided that this might be too expensive for them to enforce, and that is cheaper to just not do it is their choice.

[reginaldjcooper]

Well I think the burden of proof is going to be on you if you are found willfully using the service afterwards. Otherwise you're probably right.