[reginaldjcooper]

They probably are fully aware that nobody reads the clickwrap, that's an interesting point. It would be interesting to hear what a lawyer says about that. I don't think it's a truly reasonable defense and I wouldn't want to rely on it. (If we're thinking "ideal legal world", then I'd like clickwraps to be human-readable and people to actually read them.)

But I think there's a very clear distinction between a simple agreement with the original and with altering the DOM. If you are clever enough to alter the DOM you definitely know that the alterations are not going to be sent back to the server. You also know that agreeing will let you use the service because the server will think you agreed to the original. That seems like a clear-cut case of fraud to me. I don't see why an agreement to the original contract is invalidated because you weren't offered the opportunity to make a counter-offer (I agree that's a shitty situation, though). That's why I think it's like a contract in the mail; you get an offer and you can agree to that or not. You can make a counter-offer but it will be binned.

Consideration isn't solely concerned with monetary purchases, is it? I imagine they can construe your incoming data as valuable. It would be interesting to know if sites like Reddit can claim user interaction has inherent value for the site and for the users. I guess the EULA would be granting you license to use the software, but would not give any additional value to the developer so consideration does seem to invalidate that.

You're probably right that a ToS is going to be hard to uphold in civil court.

Anyway, thank you for elaborating, I'm glad to get a better understanding of your perspective and contract law.

[mikeash]

There was a story floating around recently about a Russian man who marked up his credit card agreement and sent it back, where it was blindly signed by a representative of the card company, and he then enforced it on them with hilarious and expensive consequences for the card company.

Yeah, they'll probably just toss your counter-offer. But the point is that you can make it. You can take their contract, alter it, sign the altered copy, and send it back, and then they can accept or refuse. The important point here is that you are not considered to have agreed to the original because you signed an altered copy.

A more thorough way to do this electronically would be to modify the DOM, save the modified agreement, click Agree to sign your end, and then e-mail the modified agreement back to the originator and let them know what's going on. Of course, their automated systems have given you access in the meantime, but that's hardly your fault.

I don't really understand how making a modification you know won't be sent back to the server is "fraud", but sending the user an agreement you know won't be read is "not fraud". Seems like either we base both scenarios on what people should do (read the original/modified agreement), or on what people actually do (not read anything), but not base one scenario on one and one scenario on the other.

You say you don't see why an agreement to the original is invalidated because you couldn't make a counter-offer, but that's how contracts work. Negotiation is inherent to the process. Big companies are trying to hide that with form contracts that everyone is expected to sign as-is, but it's still supposed to be present.