Submitted 9 months ago by not_IO@lemmy.blahaj.zone to fediverse@lemmy.world
https://lemmy.blahaj.zone/pictrs/image/4655c6ad-233c-4661-ab5f-7081b485f23f.webp
post: polymaths.social/…/01JY2NBJEASW1E21NFJ0NZ3GDC
github discussion: github.com/mastodon/mastodon/issues/35086
Could someone explain why binding arbitration clauses are horrible? My understanding is that it keeps costs low on both sides as taking things to actual court can get expensive.
First, they make the proceedings private: there’s no public record of the proceedings or verdict, and even if you win there’s no precedent that others can use.
Second, they isolate the plaintiff: because you can’t sue as part of a class action, so no lawyer can represent a group of similarly wronged people in exchange for a percentage of any verdict. This means you have to pay for your own lawyer, which many people can’t afford to do and even if you can it may not be worth it if the damage is small enough.
Together, these issues massively favor business and employers that include these clauses in contracts, as reflected in both win rates for corporations as well the number of cases brought against them versus in open court.
But they can stack the deck heavily in their favor, and you don’t have the same legal protections anymore. Who arbitrates Where? When?
Yeah. There’s already are arbitrators by law: public courts.
Best part about the federation is that you can leave
Update: it seems, they’re taking the feedback seriously.
Mastodon@mastodon.social - We’ve heard your feedback on the Terms of Service updates for mastodon.social and mastodon.online, and we’re pausing the implementation date (previously announced to users via email as 1st July 2025) so we can take further advice and make improvements.
It may take us a moment to consult with the right people, so please bear with us while we do so. As always, we appreciate your patience and support.
I’m guessing lawyers drew it up as a standard tos and they threw it over the fence tbh
Looks like it, and it’s not a good look.
I know that avatar cause that user works on Analogue Pocket FPGA cores.
Very resonable (imo) response from Gargron (lead developer of Mastodon):
I’ve forwarded your question to our legal help and will provide an answer as soon as they give it to me. What you must understand is that our lawyers don’t have experience with federated platforms, and we don’t have experience with law, so we meet somewhere in the middle. Meta presumably has an in-house legal team that can really embed themselves in the problem area; our lawyers are external and pro-bono and rely on us to correctly explain the requirements and community feedback. The draft has been around for something like a year and none of the community members pointed out this issue until now. I’ll add one thing:
“My assumption, {… shortened for brevity …} is that when you post content it gets mirrored elsewhere, and this continues until a deletion notice is federated. So I’d assume if an instance somewhere mirrors my content they can’t get in trouble for it, and I’d also assume that if there is a deletion or maybe a block and a reasonable interpretation of the protocol would say that the content should be removed, I could send them a takedown and at that point they’d have to honor it.”
The goal of the terms is to make assumptions like this explicit, because assumptions are risky both sides. Just because luckily there were no frivolous lawsuits around this so far doesn’t mean there isn’t a risk of one.
Cory has had a much more calm response offering to reach out to the EFF’s lawyers for assistance in drafting a better ToS, and other experienced lawyers have offered help also. Amongst the usual negativity from some users.
I’ll be keeping my eye on the outcome but so far it looks positive.
Thank you very much for the context, that makes a lot of sense and I’m glad this info and be part of the discussion here :)
Thanks for this extra context.
EFF's lawyers don't have the legal expertise to help a company based in Germany.
What, EFF doesn’t know any German lawyers? I’d imagine they know a few. They have been around for three and a half decades.
Perhaps not, perhaps so, but we do have other folks offering support and we will do what we can to get to a better situation here.
With the local law, probably not. With the translating the concerns of open communities like the fediverse and FLOSS into legal terms, most definitely.
Mastodon comms person here. We’re discussing how we go forward. The questions being asked are all absolutely reasonable, and we want to do what we can to improve the terms (that we do need to have in place) taking into account the feedback and offers of support.
This entire exchange is refreshingly wholesome.
Any plans of releasing the terms as open source, so smaller instances can adopt them?
I kinda see that they want to cover their asses a bit, but arbitration waivers as a whole should never be legal to begin with.
One should always be able to exercise their legal rights.
This binding arbitration bullshit is unenforceable in Germany anyways for end users
Also null and void in Spain. Judicial recourse is an non-waiveable right.
As it should be. Forced Arbitration is never to the advantage to the consumer
No, we did not (nor did we use any other AI tool).
Then why did you knowingly put a bullshit arbitration clause in the ToS that's unenforceable in Germany?
abbreviation wave !!r
Arbitration waiver*
The github discussion is interesting. I don’t think the arbitration clause is going to hold
Yeah, I don’t like when corporations put stuff like that into their ToS, but at the same time, I 100% understand why every open-source license under the sun has it. You’re giving it away for free, so you don’t want people to sue for more than you’re providing for free.
Mastodon.social is currently very much in the latter camp of giving things away for free. I also understand that a service is yet another beast than a piece of software, since they hold your personal data and may leak/sell it. But yeah, at this point in time, I wouldn’t want someone to be able to sue Mastodon.social out of existence. I guess, it depends a lot on how it’s formulated in the end…
Important to note that this is about the mastodon.social instance, not about all of Mastodon
And does this just mean youn’t sue them?
It doesn’t actually mean anything. These clauses have been struck down before.
Maybe that will push people to other instances
But will it tho? People still use Instagram.
People use the web channels that convert to cash. That’s what it is. Meta and their ilk have spent billions in marketing and persona research. They know what color makes you press a button and how to stimulate your brain into releasing dopamine when a certain product is mentioned or used.
Here’s some free advice to foss enthusiasts and developers.
Products don’t get sold because they’re better, they get sold because someone wants it. Not needs, wants. A person will put aside need for want.
Make people WANT your product and they’ll switch to it. And no, free isn’t a good enough tactic
I’m not saying Foss needs to sell its soul, I’m saying that those creators need to find a way to compete in that area.
And/or (i suspect this is more likely) it will threaten to do so, and mastodon.social/.online will update their TOS to fix the problem identified in the bug report. Either way it’s a win for federation, in that migration is relatively painless for the user…
I’m also really appropriating the speed and depth of the response to this from the community (e.g. all the comments on the bug report). It’s cool to see!
Fizz@lemmy.nz 9 months ago
This may be a dumb question.
Why are we wasting time and money fighting over a legal clause in a piece of free and open source software? Can someone explain why someone would need to sue mastodon? I dont understand what rights people feel they need to demand from mastodon because you always have the option to use it how you choose.
Its expensive to draft and consult lawyers even when its pro bono. It expends time from mastodon project and the lawyers and there is only a finite amount of pro bono work the lawyers are willing to give.