Editing Cooperation Workshop/Fall 2012 Sessions (section)

=== Tuesday November 27, 2012 (Workshop) ===

Matt Becker will present his work concerning a solution to the problems posed by Terms of Use, EULAs, and other adhesive standard form contracts, which draws on peer production principles and the recent experiments of the Wikimedia Foundation and Facebook.

The reading for the week is [http://epicenter.media.mit.edu/~mako/cooperation/mbecker-peer_produced_tou.pdf Peer Produced Terms of Use]. The conversation will start assuming that you've read it. (Username/password are on the list.)

A brief summary of his work:

:Terms of Use (TOUs) are a particularly common example of the larger legal phenomena of "adhesive standard form contracts," contracts that consumers are made to agree to on a take-it-or-leave-it basis.  Legal scholars and consumer advocates have denounced these types of contracts for nearly a century because they are often onerous and unfair, and do not comport with our idea of what a contract should be.  Yet we continue to allow them because they are very efficient, and perhaps necessary in our mass-consumer world.  Because of these concerns, the legal system has developed a number of doctrinal approaches that undermine the efficacy of these contracts, with the result being that there is a great deal of uncertainty for businesses as to whether their TOUs will actually be enforceable in court.  Thus, the state of the law regarding TOUs and other adhesive contracts is actually problematic for both consumers and businesses.

:Recently, the experiments of two of the largest Internet entities, Wikimedia and Facebook, suggest a novel opportunity to rein in the excesses of TOUs while also improving their enforceability, making them more fair for consumers and more reliable for businesses.  By creating an online forum to allow businesses to release draft versions of their TOUs for review by their users, and then working with these users to construct a better-worded, more fair TOU, these businesses take advantage of the fruits of the peer production process while also giving users a voice in what could be described as a form of decentralized collective bargaining.  Beyond the immediate effects of improving the TOU, this process has positive consumer relations implications, and also positive legal implications, creating a more robust contract.

Matt is interested in any and all feedback, in particular the following:

# Does this idea seem feasible, and do you have particular concerns you would like to see addressed?
# How could we encourage the growth of a "peer produced TOU" community, and what pitfalls should we look out for?  Are there important aspects of successful wiki models that should be taken note of?