Terms and Conditions.  Terms of Use.

Read it and understand it BEFORE you sign it, OR pay the price. Reading Terms and Conditions or Terms of Use or Terms of Service is quickly becoming the foundation for many social media related lawsuits.  I am constantly blogging about this topic, speaking about it in my lectures, and reiterating its importance to my clients over and over again. Yet, folks still ignore the warning—until it’s too late. They simply do NOT want to read the Terms of Service, Terms of Use, or Terms and Conditions before accepting them (collectively known as the “Terms”).


There are a ton of reasons why people choose not to read the Terms before they sign those documents.  Among the many reasons are:

  1. The Terms are too long;
  2. The Terms are too complicated;
  3. I trust the person/company that issued them;
  4. I feel I have no choice but to accept the Terms.

If YOUR reason for not reading the Terms, before you sign them, is one of the above (and BTW, clicking “I Accept” is signing), then a recent decision handed down by the United States District Court for the District of Columbia may serve as a strong warning.

Song Fi vs. YouTube and Google. Arbitration.

The plaintiff sued YouTube in Washington, DC, despite the fact that YouTube’s Terms state all disputes must be resolved in the Northern District of California through arbitration. The plaintiff, who lives in DC, understandably did not want to fly from DC to California every week to litigate the claim. Plus, the plaintiff obviously felt he had a better chance of winning in a lawsuit, rather than in an arbitration hearing. So, he attacked YouTube’s Terms by stating they were unconscionable. He further stated that he “didn’t read them anyway,” because he felt he had no choice. The plaintiff argued that YouTube has “overwhelming power in its chosen market” and that the plaintiff as a “small, independent music company,” had no choice but to accept YouTube’s Terms. He continued saying, he “Lacked any kind of meaningful choice as to whether to upload their video to the YouTube website and agree to the Terms set forth by YouTube.”
For every person who wants the right to make adult choices, yet then chooses to see him or herself as a victim—when convenient, LISTEN UP!

Terms. Contracts.

The court came back and said, Terms of Use are contracts and there was nothing in YouTube’s Terms that was unfair or unreasonable.  The court further said, “Though YouTube is undoubtedly a popular video-sharing website, it is not the case that Plaintiffs lacked any kind of meaningful choice as to whether to upload their video to the YouTube website and agree to the conditions set forth by YouTube. Plaintiffs could have publicized the LuvYa video by putting it on various other file-sharing websites or on an independent website.” The court further sent the case to California.
So what is the takeaway?

  1. Read every document before you sign it, because whether or not you read it, YOU WILL BE HELD LIABLE for it.
  2. If you object to the terms of the agreement, DON’T SIGN IT—you have a choice, albeit not the choice you like.
  3. If you sign a document that has a jurisdiction provision that says all disputes must be resolved in a certain state, BELIEVE IT. Sometimes there are ways to get out of that, but you will have to pay a lawyer to fight it and you may still lose.
  4. If you sign a document that says all disputes must be resolved by arbitration, BELIEVE IT. Again there are exceptions, but you will likely have to pay a ton of money to prove you are right.
  5. As long as the Terms of Use are clear, visible, and can be understood, most courts will uphold them.

Until next time, I’m Attorney Francine Ward. Find me on my Facebook Law Fan Page, Twitter Law Page, Google+, and LinkedIn.

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