The Paracast Terms and Conditions

[mike]

I can see both parties pov here, its actually a well known aspect of law

It comes down to the spirit vs the letter of the law

The letter of the law versus the spirit of the law is an idiomatic antithesis. When one obeys the letter of the law but not the spirit, one is obeying the literal interpretation of the words (the "letter") of the law, but not the intent of those who wrote the law. Conversely, when one obeys the spirit of the law but not the letter, one is doing what the authors of the law intended, though not necessarily adhering to the literal wording.

Letter and spirit of the law - Wikipedia, the free encyclopedia

I get Randals points about the letter of the law as codified in the TOS, but also Genes comments about the spirit of the law, ie that your chances of falling foul of that literal wording is slim as long as you dont obviously with malice and aforethought do something that damages the product.

In entering into such a two way contract, both parties are to a degree taking a chance.

The trick is to find a way to equitably protect the interests of both.

In my experience you are more likely to do this sucessfully when seen through the filter of the spirit of the agreement as opposed to the letter of that agreement, which is generally only ever invoked when things go badly wrong.

 

[Randall]

I can see both parties pov here, its actually a well known aspect of law

It comes down to the spirit vs the letter of the law



Letter and spirit of the law - Wikipedia, the free encyclopedia

I get Randals points about the letter of the law as codified in the TOS, but also Genes comments about the spirit of the law, ie that your chances of falling foul of that literal wording is slim as long as you dont obviously with malice and aforethought do something that damages the product.

In entering into such a two way contract, both parties are to a degree taking a chance.

The trick is to find a way to equitably protect the interests of both.

In my experience you are more likely to do this sucessfully when seen through the filter of the spirit of the agreement as opposed to the letter of that agreement, which is generally only ever invoked when things go badly wrong.

Good points Mike. My position is that it's even better to avoid having to invoke any law in the first place because both parties agree that they won't do that when they sign up. Plus I'm not so concerned about @Gene Steinberg causing any problems himself. He's the most reasonable forum owner/moderator I've ever run across. Just the fact that we can have this conversation and that he participates in it is amazing. My concern is that some third party bozo might take advantage of the situation and send some legal BS to Gene that in-turn could lead to the need for legal services that members would then be on the hook for.

In contrast, by agreeing not to engage in any litigation in the first place, anyone who tries to hold The Paracast responsible for member content would be in breach of the agreement and therefore liable themselves for any costs. This protects Gene and the members. It's not perfect, but it does as much as can be done.

 

[Christopher O'Brien]

I agree w/ Randall on this point Gene. I think his questions and offered suggestions have merit and should be considered.
Thanks for caring about the crossed eyes and dotted T's "Ufology!" The devil does indeed lurk in the detailed, fine print... ask any lawyer (and there are a whole big bunch of them parasitic, ambulance-chase'in, bottom-feeding, "Better-call-Saul"-types out there, to be sure...)

 

[Gene Steinberg]

I asked Steven, an attorney who has advised me in the past, to go over the language and move on this. So perhaps before Thanksgiving or slightly after.

 

[Gene Steinberg]

OK, after getting some legal feedback, I have made changes in line with Randall's suggestions. But that's not a final version by any means. There may be further modifications after Steven works on it. But it would be fine tuning, nothing that would alter the terms significantly from the updated version.

I welcome Randall's Paracast+ subscription now.

 

[Gene Steinberg]

Final comment: The lawyer said put back the indemnify clause with an explanation of what it means, so you realize that you are not being targeted. Please read the new text and you'll see the context.

In short, if we get sued because of something you said or did in the forum, we pass the responsibility back to you. I don't see that anyone would want to dispute that. Otherwise, it doesn't impact you whatsoever.

 

[Randall]

First of all, you are already protected by the disclaimer that the content posted by members doesn't necessarily reflect your views or opinions. Plus most anyone who would get upset by the content would have to have had access to it, and if by being granted that access they have already agreed not to hold you responsible, that is a second layer of protection. So you don't need the indemnification clause. I was just about to congratulate you for being so progressive, but of course the lawyer stepped into the picture ... figures . I won't agree to pay his legal bills or yours, let alone pay to take on that liability. BTW I know I'm not being "targeted" ( at least not at this point ). We're just having a discussion .

If you want your lawyer to create the TOS, I respectfully suggest that you instruct he or she to draft it in such a way that neither you nor your members become liable for any civil actions, or in such a way that it minimizes such liability to the maximum extent permitted by law. I understand you want protection, but so do we, your paying customers ( or at least I would assume so ).

On another issue. It's not likely that everyone who listens uses PayPal and/or a credit card. A plain old-fashioned mail-order option on your sign-up page would alleviate that problem.

 

[Gene Steinberg]

Randall, if you aren't being sued for defamation, there is no problem. We are protecting ourselves against a few others in these forums who have skirted the edge. The original clause was inserted based on the suggestions of a certain former magazine publisher and author, a lawyer, who said we were vulnerable.

Let me kick it back to Steven to see his final feedback. Maybe he can find better phrasing, but we have to have something there regardless.

 

[mike]

I think you are both to be congratulated for the reasonable way you are working to sort this out.

If more people could do it this way, the courts would be free to deal with criminal matters.

 

[Gene Steinberg]

I wouldn't even concern myself about this were it not for a few very wacky people out there who force us to behave as lawyers sometimes to figure out what is acceptable or not.

 

[Gene Steinberg]

Says Steven about whether he could devise a different and more simplified set of terms: "Not really and feel comfortable I was doing any good. These are terms of art and have been interpreted in every state, so you know what you are going to get if it goes to court. When you start deviating, it becomes difficult to interpret what the parties meant and you don't know how a court would rule. That is why every release looks basically the same."

What he's saying is that these are legal conventions and terms that have been perfected over the years in the United States, and are thus used in many different settings. As a resident of Canada, you may see this handled differently, but we are not in Canada.

The long and short of it is that we need to protect this little company, especially at this critical time when lots of things are being done to deliver a living wage for me and Chris.

Nothing in those terms impacts you unless you're in the business of violating our intellectual property or committing libel. If you don't consider it acceptable, I understand. But you'd have to demonstrate how you'd otherwise be harmed for me to revisit this matter.

That's gotta be it!

 

[Randall]

Randall, if you aren't being sued for defamation, there is no problem. We are protecting ourselves against a few others in these forums who have skirted the edge. The original clause was inserted based on the suggestions of a certain former magazine publisher and author, a lawyer, who said we were vulnerable.

Let me kick it back to Steven to see his final feedback. Maybe he can find better phrasing, but we have to have something there regardless.

Actually, it's more like so long as you aren't being sued for something someone interprets in their own mind is worthy of suing over, then we ( the members ) have no worries about paying your legal bills. Unfortunately, we ( the members ) have no idea what some third party might do. So what you and your lawyer need to come up with is terminology that makes it so that everyone agrees not to sue anyone in the first place. But like I said before, what incentive have lawyers got to do that? Violations of criminal law are another matter and cannot be insulated against.

BTW, as someone who has read hundreds of TOS agreements, I can assure you that they're not all the same, and besides that, the whole idea is not to end-up in court in the first place. There is also healthy movement toward what are called "plain language contracts". The disclaimer and the requirement to agree not to hold you responsible covers you fine. There's no doubt as to what it means to either you or the members. In fact it's more clear than how the word "indemnification" has been interpreted in different jurisdictions.

Anyway, it's your boat so float it on whatever legal effluent you want. IMO the less the legal system is involved the cleaner everything is. Ironically, what it all boils down to is that what we all want is protection from is the legal system itself. "The law is the law, and as all of you know, without the law, why, as you know, there would be no lawyers, and without lawyers, it just goes on and on ..." ( The King )

 

[Gene Steinberg]

All we can do is protect the company with usual and customary legal conditions. But if you're not in the business of defaming people or violating intellectual property, there's nothing for you to worry about. Nobody is going to sue you.

Besides, you are in Canada, so U.S. courts have no jurisdiction whatever. In a sense, your location revokes your status regarding these terms, period.

Since it doesn't impact you in any conceivable way that I know of, it should not concern you in the least. We are in the U.S. so we follow U.S. legal terminology.

 

[Wade]

For my part anything that I post, either of a personal nature or a general nature should be considered satirical (and a little cynical at times) in it's content. Which is solely mine unless of course I use someone else's words in which case I shall credit them with the quote, unless I forget, at which point I would throw myself at the mercy of any kangaroo court I should find myself in, even if it's not necessarily in Australia.

 

[Gene Steinberg]

Again, nobody is liable for our legal bills unless they are sued. I don't foresee that happening very often, if ever. But the lawyer says put it in, and it's not uncommon as you know.

 

[Randall]

All we can do is protect the company with usual and customary legal conditions. But if you're not in the business of defaming people or violating intellectual property, there's nothing for you to worry about. Nobody is going to sue you.
Besides, you are in Canada, so U.S. courts have no jurisdiction whatever. In a sense, your location revokes your status regarding these terms, period.
Since it doesn't impact you in any conceivable way that I know of, it should not concern you in the least. We are in the U.S. so we follow U.S. legal terminology.

It's not what I'm in business for that is of relevant concern, it's that some third party who is in the business of launching frivolous lawsuits, or who gets their nose out of joint over what they interpret to be worth suing over ( when it's not ) that is the concern. And it's the principle of the thing, regardless of whether or not I live in Canada. I don't "agree" with the terms and therefore to join up I'm put in the position of having to lie, whether I can be held accountable for that or not. It impacts me on a personal level. Anyway, I'm going to move along and forget the whole thing. Those who don't care, or know ( or care to know ) that they're making themselves liable for your legal bills will probably be plentiful and I doubt you'll run into many ( if any ) serious problems.

 

[Gene Steinberg]

Sigh......

 

[Randall]

Sigh......

I understand your frustration. I'm an unusual character because these days it's become normal for people say whatever they think you want to hear just so they can get what they want. They lie to their friends and families, lie to their bosses, lie on their résumés, lie to their romantic interests, all at the click of a button, and think that because everybody else does it everywhere it's OK. But for some strange reason I think a deal is a deal, and whether or not it's enforceable by local jurisdictions is irrelevant to me. It's a matter of personal honor. If I were to say I agree to cover your legal bills if some third party launched some frivolous lawsuit against the Paracast, I'd feel personally bound by honor to that agreement. That's what an agreement or contract is supposed to be about. I rarely compromise, and I'm not going to start making a habit of it now just so I don't have to fast forward through some commercials.

 

[Gene Steinberg]

No it would be about a frivolous suit involving what the member does on our forum. If you do nothing to bring it about its not your problem.

 

[Randall]

No it would be about a frivolous suit involving what the member does on our forum. If you do nothing to bring it about its not your problem.

That's the whole point of a frivolous lawsuit, the defendant doesn't have to do anything to bring it about other than make a few innocent posts about one thing or another. For example maybe someone ( some third party ) that members have no connection with decides they don't like you ( someone like this for example ) and decides to sue you using some content a member has posted as a pretense. All of a sudden your TOS makes that member liable for your legal bills. Maybe you'll never pursue it, but why should members be subject to such exposure at all? By dumping the indemnification clause members wouldn't be making themselves responsible for your legal bills. But like I said, there will probably be plenty of people who don't even bother reading the TOS because that's what the world has come to. Just "click here" for your favorite brand of instant gratification.