Sneaky Bastards – Activism…hacking the legal “black box” making agreements accessible and possibly fun… (5K)

Session Topic: Sneaky Bastards (T5K)

Convener: Renee Lloyd

Notes-taker(s): Judi Clark, Joseph Boyle

Tags for the session - technology discussed/ideas considered: 

Discussion notes, key understandings, outstanding questions, observations, and, if appropriate to this discussion: action items, next steps:

Judi’s Notes:

Renée Lloyd’s talk on how VRM disrupts and liberates legal practice. VRM challenges how legal practice is executed. What if new businesses had to negotiate with her? What messages are people giving us? Agreement making in a human style: sharing thoughts, contextual, ceremonies and expressions vary. Contrast: agreement corporate style (hand cuffs, “None are more hopelessly enslaved than those who falsely believe they are free.” -Goethe)

Clickwrap “agreements” are what we call Contracts of Adhesion: no negotiations, take it or leave it. Should not be assumed that we always want a fast track. Look especially in employment contracts, very restrictive. Makes sense in certain contexts but should not be a universal solution. Even if you’re the 800 pound gorilla, you don’t always have to act like one. The processes are insidious, things start small but quickly spread into areas where it’s impossible to right any wrongs.

Lawyers use existing terms from contracts to create new, limit liability. Nothing new: no innovation is allowed (social media prohibited). Caveat emptor: problematic because consumers can’t “be aware.” FTC expects that markets create innovation, expected that it will help protect. But no plain english rules, effective regulation that’s reactive (because bad things happen) produces unworkable constraints and rules. System is out of balance. “No number of legal victories, tech tools or whitepapers–however well-intended or important–are going to convince people to take ownership of agreement-making back from lawyers and companies.” It’s about people, not lawyers. We need to bring the balance back, help people to take ownership.

Time for a change of attitude! What do you do when the most economic solution is a data exploiter for the big companies? What if there was a trusted voice? For example, what if the Terms of Use on a site, instead of the pages you see now, told you this (video) [x] Cede your rights? No site has fair terms right now. Or what if you had a “sneaky bastards” prompt that took your selected text, marked it up, turned it into a visual games? (Sue for emotional distress: Amazon’s terms at 80 pages and Renée didn’t have it all, PLUS they can change those terms anytime. Outrageous.) Activities to bind parties, even if they don’t understand, includes individual initialing every page. New advice in legal community is to make it clearer that they knew. Relaxed formality standards.

http://ThoseSneakyBastards.org – starter site with Renée’s rants, hall of shame, hall of fame, etc. Learning, doing, kicking butt, giving props, pure ferocious fun! Data on collaborative law shows less law suits in case where people/individuals are consulted about change. Innovation: minimum viable contracts, curate, track and assess new contract models, etc. Check the site for things to develop.

Notes source: http://digitalidcoach.com/2011/10/iiw-xiii-sneaky-bastards/

Joseph’s Notes:

Agreement making human style has ceremony Not just writing down documents.

Agreement corporate style - pages of fine print (overlay with pic of handcuffs)  "None are more hopelessly enslaved than those who falsely believe they are free" -Goethe

Clickwrap "agreements" are called "contracts of adhesion" - no negotiation, take it or leave it

Has there been any pushback from consumers? 2nd Life case where user had invested a lot in their site. Court threw out mandatory arbitration provision as unconscionable.

What happened was b2b lawyers defining the new b2c world. It's normal now but also insane and bad for business.

Scott David: "Caveat emptor" is fine when buyer population is capable and empowered, less so for atomized individuals.

No number of legal victories, tech tools or white papers are going to convince people to take ownership of agreement making back from lawyers and companies.

Idea: Addon to highlight agreement text to show provisions that are sneaky. Gamify it!

[Forgot to take notes after this point - Renee's presentation was too good - post it on the wiki!]