I am not a lawyer. Nor do I play one on TV. On the other hand, I am uniquely qualified to offer this legal advice because I wrote a rental contract while in college that the landlord’s lawyer could not break. Sam the Landlord learned from that experience (he never signed a contract again that his own lawyer hadn’t written) and I learned how much fun teaching can be.

[Editor’s Note: gekko and I are following in the footsteps of 60 Minutes’ Shana Alexander and James Kilpatrick in paired blog articles. After reading this article, please go read title for the counterpoint argument.]

Over on the other blog, gekko was spurred by a Safari program called Reader.

Reader is really neat. It strips the page of all the advertisements, sidebars, and inconsequential stuff, and pops up just the text in a translucent overlay. That scares the advertisers who believe they have a contract with the viewers, readers, or users on the site; seeing all the ads is the price they charge us to see the content.

gekko thinks the contract is not between us readers and the fodder provider. The contract, she says, is only between the content provider and the advertiser.

Contract is an important legal term. A contract is actually “just” an agreement between thee and me to trade something I have for something you have. To be valid, the contract must be (1) enforceable by law and (2) equitable.

Trade? That sounds like business and it is. I might have a book you want. You might have a dollar I want. We can contract to trade my book for your dollar and both walk away happy. Even if our contract is no more than this conversation:

“Hey, you got that book?”

“Yup, Cost you a buck.”

That fulfills the basis for a legal contract.

<pedantic mode> Both of us must be old enough and not impaired to buy or sell that book and the contract must be neither trifling, indeterminate, impossible, or illegal.

As long as the good or service we trade is legal, our oral agreement can constitute a binding legal contract. In practical terms, written contracts are more enforceable because they list all the terms we decided on at the time we made the agreement.

Enforceable means that we each promise to do something for the other guy and that the other guy has specific legal remedies if we breach that promise. A “compensatory remedy” means the Sheriff will make me pay what I said I would and maybe more besides. An “equitable remedy” usually means the Sheriff will stand over me to make sure I perform what I agreed to do and reneged on.

Equitable means fair to both parties. A court would accept as equitable the sale of a used copy of Pocket Shakespear for a buck — both parties benefit more-or-less equally. A court ought not accept as equitable the sale of an original signed manuscript of Macbeth for a buck — here the seller takes it in the ear. </pedantic mode>

Back to the Safari Reader.

Reuters reports that “the Internet is [now] by far the most popular source of information and the preferred choice for news ahead of television, newspapers and radio, according to a new poll in the United States.”

There are two contracts in play. In the first, the advertiser contracts with the Internet content provider (the fodder we want to read) to place the ads and other links on the content page so the viewer/user will see them. gekko contends that’s The One. In the second, the viewer/user agrees to view the ads and other links on the page in order to see the fodder we want to read. I maintain that’s The Other One.

In many ways, this is exactly the same model we have used for “free” radio and television broadcasts since 1920 when KDKA went on the air in Pittsburgh.

gekko believes the second contract does not exist, partly because we the viewer/user never agreed to it.

<pedantic mode> An implicit contract (A.K.A. an “implied-in-fact contract”) is one agreed by our conduct, rather than by the words we say. The U.S. Supreme Court defines it as an agreement “founded upon a meeting of minds, which, although not embodied in an express contract, is inferred, as a fact, from conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding.” </pedantic mode>

So. Does watching American Idol on Fox or reading the New York Times online mean we agree to watch or read the commercials that support it?


TANSTAAFL (There Ain’t No Such Thing as a Free Lunch). The writers and publishers of the information we absorb so easily offer it in exactly the same way I sold you the book and for exactly the same reason you go to work each day. Paying the writer is at least as important as paying your mechanic to tighten the lug nuts when he changes a tire on your car.

I traded the book for a buck. You trade your hours at desk or workbench for, I hope, more than a buck. You may have no written contract with your employer but your boss offered you the position, salary, and appropriate working conditions in return for your appearance on time and performance of the assigned duties. That’s an implicit contract.

VCRs, DVRs, other recording devices, and now Safari’s Reader allow us to breach that contract with the broadcaster or website. The fact that we can breach the contract does not mean we should breach the contract any more than we should rob the gas station down the street just because the President did.

The contract hinges on enforceability but in this day of a Democratic President and Congress ignoring the law or changing it to fit their whims, I would not be a bit surprised to find the Library police reassigned to ad watch duty.

[Editor’s Note: gekko and I have written paired blog articles. After reading this piece, please go read title for the counterpoint argument.]

I have no advertising on this page, so there is no implicit contract that you, dear reader, will pay for these words. OTOH, donations via the Tip Jar are always welcome.

15 thoughts on “Agreement?

  1. George wrote — in response to Alma: I do not read gekko’s blog because he is a girl. But I agree with him anyway.

    — George

  2. I have noticed that you timeshift via VCR EVERYTHING you watch on t00b, and then fast forward (or at least mute the audio) through the ads. So you, sir, are in breach of contract. As am I, since I do some of the same stuff. But _I_ did not advertise said fact to the world via internet.

  3. Two counter-counter points I’d like to make:

    #1. You write about “agreement” between the two parties, and stipulate “equitable” and even “enforceable.” There’s all kinds of history I can go into, esp. with respect to Cable, wherein we “agreed” to pay a monthly fee in return for commercial-free programming, only to have the providers renege, but I’ll not. Since we’re talking about the Internet in particular here, I will note that the tradition of the Internet has been one of free exchange of information, advertisement free. Early days (BBS, Usenet) were genuine exchanges and the agreement was a pay-forward one. I write this, you come read it. If it is helpful, great. You may return the favor by writing something which I will read, or someone else down the line will read and find helpful or entertaining, etc. There is also a strong tradition of fighting advertisements, especially SPAM, online. So any “agreement” that the content consumer is to accept seeing ads on web pages in return for getting to view the content is in the minds of the same industry that brought us “commercial free” cable TV. They are simply attempting to foist the model they like over onto the new medium.

    #2. The above leads me to something even more important: precedent. If I cut across your property every day, and you fail to stop me, eventually I have a legal right of way to that path across your land. As noted, viewers and readers have always sought ways to avoid seeing ads. At no point has either the advertiser or the content provider attempted to force the viewer to see the ad. They have fought technologies that actively suppress ads in many, but not all cases, but no one has ever been served with a legal notice that they must see an ad in order to read these articles. Legal pursuits would be silly; but applying a legal construct to the concept of ethical obligation, I state that precedence removes even ethical obligation to see an advertisement as payment for reading an article.

    FTR, if an advertisement can make it through my mental, physical, and technological blocks, and can interest me, and avoid annoying me, it stands a far better chance of earning my business.

  4. @Alma, Dick didn’t say at all that the price of reading something you WANT to read is BUYING something you don’t want.

    Dick specifically said you have an implicit contract to see the ad on the page (or in the program) when you view the “free” material on that page. That’s it. What you do after seeing the ad is entirely up to you.
    * You can ignore the ad.
    * You can enjoy or dislike the ad based entirely on its presentation.
    * You can boycott the advertiser because they had the temerity to put the ad there in the first place.
    * You can even buy something if you are so inclined.


    @Bb: “But _I_ did not advertise said fact to the world via internet.”

    Um, you just did.

    And for the record, it’s not EVERYTHING. I use the DVR for a lot of stuff.


    @gekko: The above leads me to something even more important: precedent…

    The use of hostile possession to take intellectual property is intriguing; I’m not a legal scholar so I don’t know if it holds water but the spam fighter in me likes it.

    Early days (BBS, Usenet) were genuine exchanges and the agreement was a pay-forward one.

    It’s a nice model for one-on-one exchange; it also has an underlying expectation of value given for value received. As the Internet matured, many of the amateur writers gave us information that might or might not survive fact check. That free content is still available. Today, newspapers and television broadcasters and radio networks and how-to manual publishers and more publish their vetted material or copyrighted dramas online for anyone to use.

    Legal pursuits would be silly…
    Tell that to the music industry where we have gone from “free file sharing” to 99 cent downloads.

    I agree that I may be the Lone Ranger™ in a claim of contractual obligation but there is at least some precedent to demand payment in return for goods we actively seek out. And we know something is going to happen. If advertising fails to support itself, the professional publishers will look for a model that charges us directly.

  5. Gekko has presented a variation on *Squatter’s Rights*.

    When I studied law at Biloxi Fish-Scaling School, the Professor used an example of someone setting up a fruit stand on a neighbor’s property without asking permission. The neighbor wanted to be a good sort, so he never objected. Besides, he got to walk over from time to time and eat a plump item of fruit.

    Summer after Summer the fruit stand would get set up, and little by little the merchant would take in a bit more of the neighbor’s space. After an indeterminant number of years, the land beneath the fruit stand, including the place where the merchant kept his empty boxes and the area out front where he parked his truck and where customers parked, became his because of the neighbor’s unspoken and unwritten approval of its usage .

    So, it was not a hostile take-over at all, but one of common law.

    According to Professor Schwan, all the neighbor would have had to do to prevent this *squatter’s claim* was simply tell the merchant from time to time — with witnesses — that he would have to move his fruit stand because he did not have the property owner’s permission.

    No attempt at forceful eviction or removal would have been necessary.

    I took his word for it — but he could be wrong.

    — George

  6. George’s professor was both right and wrong. The legal term can be either “hostile” or “adverse possession.” Either one is codified in real estate law, not just common law.

    Adverse possession is the taking of title to real estate by possessing it for a certain period of time. Title means ownership of real estate. The person claiming title to real estate by adverse possession must have actual possession of it that is open, notorious, exclusive and adverse to the claims of other persons to the title. By its very nature, a claim of adverse possession is hostile to the claims of other persons. It cannot be hidden but must be open and notorious in order to put other persons on notice as to one’s claim for possession of the real estate. Here in Vermont, the duration of the possession must be fifteen (15) years under Vermont Code §12-501.

    Professor Schwan said the neighbor should tell the merchant that he would have to move his fruit stand. That’s true but he would have to follow that up with an eviction. The neighbor could tell the merchant that he could keep his fruit stand there, but with the understanding that the occasional fruit was payment and the underlying land was still the neighbor’s.

    That’s kind of off the track of our contractual obligations topic but it does remind us that most websites — including this one — assert ownership (and user obligations) in their Terms of Use pages.

  7. I’m with Nancy. If I surf the net with plug-ins turned off, a lot of ads never appear. That tells me that, like the ads in my local newspaper, the agreement/contract is between the advertiser and the site the advertiser buys ad space on – not between the advertiser and my browser or me.

    My newspaper has never had any guarantee that I would read their ads, let alone buy what was advertised; the newspaper earns money selling ad space, which keeps my subscription rate lower. The advertisers get enough attention from a small percentage of ad viewers (I forget how small – 10% or something) to justify the cost of the ad.

    It is the same principle on the web: The contract is between the online site and the advertiser, not the reader of the online site. From
    “To some extent, declining click rates reflect how Web users are getting numb to the least sophisticated Web come-ons. That’s bad news for advertisers, who increasingly pay based on the number of banner ads served up, not the clicks they draw.” Note that: The advertiser pays to advertise, not for the advertisement to be acted on by a customer. I, the reader/possible customer, am not under any contractual obligation with the advertiser.

  8. @Keera: “If I surf the net with plug-ins turned off, a lot of ads never appear. That tells me that, like the ads in my local newspaper, the agreement/contract is between the advertiser and the site the advertiser buys ad space on — not between the advertiser and my browser or me.”

    Sorry, no. That logic is flawed. It is identical in format to this statement: “If I rob this store with the lights turned off, my face never appears on the security camera. That tells me that the robbery is between the store owner and the light company not between light company (or the cops) and me.”

  9. Three important points arose from this exercise:

    (1) We all (except Heather who has no data) agree that there is a contract between the advertiser and the publisher.

    (2) Many readers either don’t understand or don’t care if the writer (creator) gets paid.

    (3) The primary legal argument against any contract between the website and the reader/user/viewer comes down to this: “I don’t want to see the ads so I don’t have to. Wah.”

    I truly don’t know if a court would uphold a contract such as I proposed. No. That’s not true. Some judge somewhere would uphold such a contract but I truly don’t know if an appelate court would uphold that kind of ruling.

    I do know this. The Internet is now thoroughly commercial. If the guys what pay the bills aren’t making money, we writers will never, ever survive.

  10. So if I buy a magazine for $3.00, I am obliged to look at all the ads — that is part of my “contract” for reading about Jen Aniston’s latest diet? If I have my butler go through the mag and rip out the ads first because they annoy me, I am in violation of said contract? If I’m watching a TV show and take a potty break during the commercials, ditto? How about if I’m listening to the radio in the car, a marathon of my fave songs for a half hour, but ruthlessly switch stations the instant they begin a commercial? People have been ignoring advertising for ages … what you seem to be saying is they shouldn’t have really clever ways of doing this.

  11. The contract doesn’t exist. It’s not because we don’t want it to, it’s because it was never there.

    We never _agreed_ to it, and have been expressing our disagreement for quite some time: openly ignoring them, openly avoiding them, openly seeking ways to suppress them.

    The only good point I see is that if the content providers stop being able to make money, they won’t be hiring any content creators.

    That doesn’t make me _feel_ (and this is where Dick’s basic argument really should be going) as though I have a moral obligation to help the provider pay his bills, however. That I would like the provider to maybe hire me to create some stuff for him to plop onto his website does not create in me an obligation to go off and read the ads.

    The provider _will_ make money if the provider provides material people want to see and the advertiser feels he has a shot at getting some of his ads through to those people. There will always be the people who click on the links in the spam and send their money to Nigeria, after all.

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