Are Human Readable Deeds the Solution?

22 February 2009

There's been quite the buzz lately over Facebook's Terms of Service blunder.  One of the many responses to the debacle was a post on the Creative Commons blog entitled "The Value of Human Readable Deeds."  The post suggested that if Facebook had included human readable deeds along with their terms of service, the large misunderstanding by its users would not have arisen.

For those of you who are not familiar with Creative Commons licenses, each license includes three sets of deeds: human readable, machine readable, and the typical legalese.  The purpose of this is to ensure that everyone who needs to work with the license understands what it means, including the computer.

Now, don't get me wrong, I like Creative Commons and think their idea for using human readable agreements along with the standard ones is a good idea.  However, I also wonder if this is feasible.  What might it look like for companies such as Facebook to start using these types of multi-part license agreements?

Contract law issues: Obviously, an agreement between a company and its customers/users involves a lot of contract law.  Without trying to get too technical: If a customer reads the human readable part but not the legalese, is there a meeting of the minds, generally required for a contract to be valid? 

There's also a sort of I'm-a-dummy defense that can be used to show a lack of understanding between the parties if one side of the agreement is deemed not sophisticated enough to fully understand the terms to which they were agreeing.  As well as a kind of click-wrap defense that can be used in some situations where a computer user had to accept the terms in order to continue with a program.  What happens to these defenses?

Company Issues: Do the companies really want us to know what's in our terms of service?  In most cases, these terms of service are not in favor of the consumer, in any way.  Generally people accept it as the status quo and move on.  (The difference with the latest Facebook TOS could be that people realize these TOS concern their own content instead of their use of other people's content.)  In this respect, incorporating human readable deeds could be very beneficial to consumers by requiring companies to create terms that are more fair and balanced.  Companies should not be able to put one thing in their human readable deed and something else in their legal deed because that would probably constitute misrepresentation.

Carry-Over: If online and software companies using human readable deeds became the norm, Where else would the use  carry-over?  Rental leases?  Loan agreements?  Service agreements?  Would the general population develop an expectation of signing only agreements which contained a portion they could fully (and easily) understand?

And, of course the big question - What Will Hold up in Court?  (This question also relates back to the original concerns about contract law.)  The legalese of contracts developed over time because of the need for contracts to be very specific.  (Take a look at the difference in size between a human readable and legal code version of a CC-by license.)  The terms used in these contracts have specific meanings, either given to them by the law, or defined in the agreement itself.  Human readable deeds do not incorporate these terms of art.  This creates more room for misunderstandings. 

In general everyday practice, different interpretations of the human readable code will not matter much, but they will be huge when a disagreement involving one of these deeds goes to court.  How will the two versions of the agreement (human readable deed and legal deed) relate to one another?  What if one party says they were relying on something in the human readable section, but something in the legal section makes that interpretation unsound?  Would the human readable code be thrown out as un-important in deciding true legal obligations, or would it over-ride the legal code because it's what the parties truly agreed to?  There are many interesting questions about how this would play out in court, guess we'll just have to wait and see.


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January 21, 2010 at 5:05:00 AM PST