1legaleagles
Well hopefully some one out there will pop in for a chat, sooner rather than later.
We'd hate to left "home alone" for too long!
Having reviewed the first posting there are some potentially juicy topics - and one in particular that we hadn't given too much consideration to previously.
Do readers have rights?
Will have to do some further research before we can make some definitive statements and at this point only additional questions related to the topic spring to mind.
Consider for example whether a reader has a right to have access to a book even if the reader cannot afford to pay the price the "owners of the copyright" (of which the author usually only has a small stake in reality) require as payment to access the book?
What about libraries? Can they restrict access?
What about a reader wanting to join a book reading club (not talking about anything related to librarything here at the moment) - can entry be refused by the other members and on what basis? How will the excluded reader go about getting redress for his or her plight?
And so on..... food for thought, and hopefully there's some one to take the bait!
We'd hate to left "home alone" for too long!
Having reviewed the first posting there are some potentially juicy topics - and one in particular that we hadn't given too much consideration to previously.
Do readers have rights?
Will have to do some further research before we can make some definitive statements and at this point only additional questions related to the topic spring to mind.
Consider for example whether a reader has a right to have access to a book even if the reader cannot afford to pay the price the "owners of the copyright" (of which the author usually only has a small stake in reality) require as payment to access the book?
What about libraries? Can they restrict access?
What about a reader wanting to join a book reading club (not talking about anything related to librarything here at the moment) - can entry be refused by the other members and on what basis? How will the excluded reader go about getting redress for his or her plight?
And so on..... food for thought, and hopefully there's some one to take the bait!
2GraceCollection
Ebooks bring up more questions than ever before about what rights readers have. When I purchase a paper book, I expect to have rights like:
- I have access to the text exactly as it was originally published, unless I buy an 'updated' edition, 'revised' edition, etc., and if it is changed from the original text, I expect the right to know that it was
- I have access to the text forever, unless I decide to give it to a friend/sell it/otherwise get rid of it, which if I do, I choose to do on my own terms, when I want to
- I can lend that book to a friend, read it out loud to a classroom or my family, or transfer the ownership of the item to someone else
- I have access to read the book as many times as I want, and it will always be the same book
Services like Kindle bring those rights into question. They assert that they have a right to censor texts if/as they see fit including after you have purchased and read the text, and if you violate their terms of service (or they think you have, for whatever flimsy reason they might have), they assert they have the right to delete all the books you've paid for from your library. Some ebooks delete themselves, and some terms of service for ebook services say you cannot lend out your own books you've paid for or transfer ownership of the files.
I own some ebooks that are just pdfs I received from friends or from instructors whilst studying, but I would never replace my library with electronic copies, partly because of this. There is no arm of a paper publishing company that will decide I've violated some nebulous terms by letting a friend borrow my book, or by buying a book from a secondhand shop (or some other 'unauthorized distributor' for paper books) and in response seize my entire book collection. The very notion would be ridiculous, but in our era of electronics, we actually 'own' very little. (Think 'right to repair' for everything from phones to cars to farming equipment, for example. Do I actually 'own' anything if I'm not allowed to open that thing up and fix something that broke?)
- I have access to the text exactly as it was originally published, unless I buy an 'updated' edition, 'revised' edition, etc., and if it is changed from the original text, I expect the right to know that it was
- I have access to the text forever, unless I decide to give it to a friend/sell it/otherwise get rid of it, which if I do, I choose to do on my own terms, when I want to
- I can lend that book to a friend, read it out loud to a classroom or my family, or transfer the ownership of the item to someone else
- I have access to read the book as many times as I want, and it will always be the same book
Services like Kindle bring those rights into question. They assert that they have a right to censor texts if/as they see fit including after you have purchased and read the text, and if you violate their terms of service (or they think you have, for whatever flimsy reason they might have), they assert they have the right to delete all the books you've paid for from your library. Some ebooks delete themselves, and some terms of service for ebook services say you cannot lend out your own books you've paid for or transfer ownership of the files.
I own some ebooks that are just pdfs I received from friends or from instructors whilst studying, but I would never replace my library with electronic copies, partly because of this. There is no arm of a paper publishing company that will decide I've violated some nebulous terms by letting a friend borrow my book, or by buying a book from a secondhand shop (or some other 'unauthorized distributor' for paper books) and in response seize my entire book collection. The very notion would be ridiculous, but in our era of electronics, we actually 'own' very little. (Think 'right to repair' for everything from phones to cars to farming equipment, for example. Do I actually 'own' anything if I'm not allowed to open that thing up and fix something that broke?)
3legaleagles
So here's a short note on a recent judgment in the United Kingdom which is actually food for thought......
Whether we like it or not, we are living in a digital era. Online shopping, which was a novelty not so many years ago, has become the norm rather than the exception. Consumers like the speed, convenience, and ease with which they can conduct transactions online, and other advantages such as being able to have goods delivered directly to their door, and not being tied to normal shop opening hours.
However, for the trader providing goods or services online, there is one big dilemma. How do they bring their standard terms and conditions of trading sufficiently to the attention of their prospective customer to incorporate them in the contract of sale or contract for services, without testing their patience so much that they decide to take their custom elsewhere, and without impeding the rapid turnover which may be the key to the profitability of their trade? Is it ever going to be possible to overcome the fact of life that most people (dare I say it, even lawyers) will not bother to read the “small print” before clicking on the box or button which states “I have read and accept the terms and conditions”?
We have rather deliberately used the words in the above to paragraphs as if they were our own. They are not!
They are from the opening paragraphs of the judgment delivered by Lady Justice Andrews recently in United Kingdom case of Parker-Grennan v Camelot UK Lotteries 2024 EWCA Civ 185, where the court recognized this was the first case to be considered by the Court of Appeal which squarely raised the issue of what needs to be done to incorporate standard terms and conditions into a contract for goods or services which is made online.
The case itself dealt with the terms of the contract relating to an online gambling transaction where the claimant alleged she had won a prize of £1 million and not only £10, as the defendant suggested. In this instance the Court found that the terms on which the claimant had agreed to “play the game” had been sufficiently brought to her attention and the construction of the terms of the contract itself mitigated against finding for her. So essentially it was not necessary for the Court to explore any other issues in detail.
And although the Court indicated that the particular judgment was not the place in which to lay down principles of general application or to consider how the law might apply in other circumstances, especially since the Court was not equipped with the evidential material to embark upon such an exercise, the Court, in deference to the materials which had been placed before the Court did make certain comments on the three issues which had been considered in the court a quo namely -
(a) were the defendant’s terms incorporated into the contract between the claimant and the defendant?;
(b) if so, were those terms enforceable having regard to the provisions of the Unfair Terms in Consumer Contracts Regulations 1999 which provided protection for consumers “where there is a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer”; and
(c) as a matter of construction of the contract between the claimant and the defendant, how much had the claimant actually won.
While these issues are worthy of further attention it is perhaps the final paragraph of the judgment which gives the most “food for thought” as the title of this article suggests. In paragraph 68 Lady Justice Andrews states:
“................I would simply add this by way of postscript. Although we have declined the Appellant’s invitation to lay down principles of more general application, the issues in this case have highlighted the complexity of balancing the needs of traders to publicise their terms and conditions with the needs of consumers to access and understand those terms. Given that a decade has passed since the last report of the Law Commission the time might be ripe for another, evidence based, review of this area of law.”
For South Africans given that section 2(2)(a) of our own Consumer Protection Act 2008 enjoins any person, court, Tribunal or the Commission to consider appropriate foreign and international law when applying and interpreting that Act (and a number of other legislative enactments contain similar statements) we would submit that the issues considered in the Parker-Grennan case merit further consideration by lawyers and our local authorities alike.
And it is because of decisions such as the one discussed above, that we are vocal advocates of the need for South African lawyers to keep informed of the legal trends and developments occurring abroad, more specifically as illustrated by the decisions of the various courts in international jurisdictions....
Unfortunately we will get red flagged if we say anymore just now..
The question is : why do we never read the terms and conditions but automatically click that we have!
Whether we like it or not, we are living in a digital era. Online shopping, which was a novelty not so many years ago, has become the norm rather than the exception. Consumers like the speed, convenience, and ease with which they can conduct transactions online, and other advantages such as being able to have goods delivered directly to their door, and not being tied to normal shop opening hours.
However, for the trader providing goods or services online, there is one big dilemma. How do they bring their standard terms and conditions of trading sufficiently to the attention of their prospective customer to incorporate them in the contract of sale or contract for services, without testing their patience so much that they decide to take their custom elsewhere, and without impeding the rapid turnover which may be the key to the profitability of their trade? Is it ever going to be possible to overcome the fact of life that most people (dare I say it, even lawyers) will not bother to read the “small print” before clicking on the box or button which states “I have read and accept the terms and conditions”?
We have rather deliberately used the words in the above to paragraphs as if they were our own. They are not!
They are from the opening paragraphs of the judgment delivered by Lady Justice Andrews recently in United Kingdom case of Parker-Grennan v Camelot UK Lotteries 2024 EWCA Civ 185, where the court recognized this was the first case to be considered by the Court of Appeal which squarely raised the issue of what needs to be done to incorporate standard terms and conditions into a contract for goods or services which is made online.
The case itself dealt with the terms of the contract relating to an online gambling transaction where the claimant alleged she had won a prize of £1 million and not only £10, as the defendant suggested. In this instance the Court found that the terms on which the claimant had agreed to “play the game” had been sufficiently brought to her attention and the construction of the terms of the contract itself mitigated against finding for her. So essentially it was not necessary for the Court to explore any other issues in detail.
And although the Court indicated that the particular judgment was not the place in which to lay down principles of general application or to consider how the law might apply in other circumstances, especially since the Court was not equipped with the evidential material to embark upon such an exercise, the Court, in deference to the materials which had been placed before the Court did make certain comments on the three issues which had been considered in the court a quo namely -
(a) were the defendant’s terms incorporated into the contract between the claimant and the defendant?;
(b) if so, were those terms enforceable having regard to the provisions of the Unfair Terms in Consumer Contracts Regulations 1999 which provided protection for consumers “where there is a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer”; and
(c) as a matter of construction of the contract between the claimant and the defendant, how much had the claimant actually won.
While these issues are worthy of further attention it is perhaps the final paragraph of the judgment which gives the most “food for thought” as the title of this article suggests. In paragraph 68 Lady Justice Andrews states:
“................I would simply add this by way of postscript. Although we have declined the Appellant’s invitation to lay down principles of more general application, the issues in this case have highlighted the complexity of balancing the needs of traders to publicise their terms and conditions with the needs of consumers to access and understand those terms. Given that a decade has passed since the last report of the Law Commission the time might be ripe for another, evidence based, review of this area of law.”
For South Africans given that section 2(2)(a) of our own Consumer Protection Act 2008 enjoins any person, court, Tribunal or the Commission to consider appropriate foreign and international law when applying and interpreting that Act (and a number of other legislative enactments contain similar statements) we would submit that the issues considered in the Parker-Grennan case merit further consideration by lawyers and our local authorities alike.
And it is because of decisions such as the one discussed above, that we are vocal advocates of the need for South African lawyers to keep informed of the legal trends and developments occurring abroad, more specifically as illustrated by the decisions of the various courts in international jurisdictions....
Unfortunately we will get red flagged if we say anymore just now..
The question is : why do we never read the terms and conditions but automatically click that we have!
4GraceCollection
I am the only person I have ever met who actually reads the terms and conditions before agreeing. I actually went into a surgery awhile back, and the nurse handed me a tablet with a document to sign electronically. When I tried to scroll back up to read the thing (right before a medical procedure!!!), she thought I didn't understand how the signature feature worked and I had to explain to her that I was reading a legal document before I signed it! (To be clear, I do not blame her for the assumption — as I said, I'm the only person I know who reads them.)
I think some of the issue is how long and legalese many of these terms are. If I go to a restaurant, I don't have to read and sign a complicated legal 'terms and conditions' to eat spaghetti, nor do I have to do such to purchase a pair of loafers, or a dozen eggs, or to go into the library and read a book. It's a uniquely online experience, (although I admit it comes up in some rare instances such as surgeries, potentially dangerous recreational activities, employment forms, and the like, but not for everyday experiences,) and, as I said, the phrasing in most terms and conditions are annoying, if not actually challenging, for a layman to parse and understand.
So, most just click 'okay.' Why not? In most cases, no obvious harm comes from it — sure, the terms probably say that the Service in question can harvest every inch it can find of your data to sell, not just to the highest bidder, but to every bidder that offers at least a penny for it, but most don't understand the implications of that — or don't care. The cases are rare that the terms and conditions would otherwise really even come up — for example, in a court case. Of course it does happen, but for the average person over the course of their lifetime, they will never be involved in a court case regarding terms and conditions.
I think some of the issue is how long and legalese many of these terms are. If I go to a restaurant, I don't have to read and sign a complicated legal 'terms and conditions' to eat spaghetti, nor do I have to do such to purchase a pair of loafers, or a dozen eggs, or to go into the library and read a book. It's a uniquely online experience, (although I admit it comes up in some rare instances such as surgeries, potentially dangerous recreational activities, employment forms, and the like, but not for everyday experiences,) and, as I said, the phrasing in most terms and conditions are annoying, if not actually challenging, for a layman to parse and understand.
So, most just click 'okay.' Why not? In most cases, no obvious harm comes from it — sure, the terms probably say that the Service in question can harvest every inch it can find of your data to sell, not just to the highest bidder, but to every bidder that offers at least a penny for it, but most don't understand the implications of that — or don't care. The cases are rare that the terms and conditions would otherwise really even come up — for example, in a court case. Of course it does happen, but for the average person over the course of their lifetime, they will never be involved in a court case regarding terms and conditions.
5legaleagles
So far we're not exactly attracting a crowd.
There could of course be a number of reasons for that, but most likely contenders are:
(a) a dearth of lawyers running about in LibraryThing;
(b) we haven't found a way of getting people to pop in for visit yet - presumably need to get into some other groups, write more reviews, etc.
(c) the subject-matter is boring and having taken a brief look visitors don't want to stay or are embarrassed to admit they have been here.
(d) lack of posts indicates neglectful approach by "administrator" of the group - this one is the most easily rectified and we will pay more attention (just been snowed under putting finishing touches to producing a new book whose name we cannot mention).
As for (a), (b) and (c) will also be taking pro-active steps to see what can be done about these. But of course anyone is welcome / actually invited to give us suggestions.
And for the lawyers hiding in the shadows - come out into the open!
BTW just read an article in a British publication where the author stated :
"Let's face it, nobody gets up in the morning and says - I really want to meet with my lawyer today!"
Lawyers are the ultimate grudge purchase. We're fire engines. Even with changes in society and new technologies abounding, the dial on that topic has hardly moved.
What's your viewpoint.
There could of course be a number of reasons for that, but most likely contenders are:
(a) a dearth of lawyers running about in LibraryThing;
(b) we haven't found a way of getting people to pop in for visit yet - presumably need to get into some other groups, write more reviews, etc.
(c) the subject-matter is boring and having taken a brief look visitors don't want to stay or are embarrassed to admit they have been here.
(d) lack of posts indicates neglectful approach by "administrator" of the group - this one is the most easily rectified and we will pay more attention (just been snowed under putting finishing touches to producing a new book whose name we cannot mention).
As for (a), (b) and (c) will also be taking pro-active steps to see what can be done about these. But of course anyone is welcome / actually invited to give us suggestions.
And for the lawyers hiding in the shadows - come out into the open!
BTW just read an article in a British publication where the author stated :
"Let's face it, nobody gets up in the morning and says - I really want to meet with my lawyer today!"
Lawyers are the ultimate grudge purchase. We're fire engines. Even with changes in society and new technologies abounding, the dial on that topic has hardly moved.
What's your viewpoint.
6haydninvienna
I am a lawyer (the law of the State of Queensland allows me to call myself that, because I gained a law degree and was admitted as a solicitor in New South Wales and a barrister and solicitor in the Australian Capital Territory, but have not held a practising certificate in either of those jurisdictions for almost 40 years). I take issue with being thought of as a fire engine. Rather than practise adversarial law, I spent most of that 40 years drafting legislation of one kind or another. Much more fun.
So: can you suggest any legislation, of any jurisdiction, that is worth reading for fun?
So: can you suggest any legislation, of any jurisdiction, that is worth reading for fun?
7legaleagles
Welcome Haydinvienna - nice handle : presumably there a reason for the musical reference.
We understand that most lawyers are sensitive about the fire engine epithet. And you have chosen a different route to most to put your skills into practice.
Would be really interested to hear more from you about the elements of your craft especially regarding the use of words and rules of grammar in drafting legislation.
Know very few pieces of legislation we'd try to read for fun though ....but an interesting challenge to which we will give some thought.
One recent piece of legislation we have earmarked for further attention (when we've some time) is the Labour Bill recently introduced into the UK - especially because the UK and other jurisdictions are still battling with some of the issues we've actually settled when adopting our Labour Relations Act 1995 - which was a vital piece of legislation to address major imbalances in our Labour Market that arose in the apartheid era. But since there is a major time interval since our act was promulgated the UK Bill deals with many more recent problems which our legislation needs to address.
Here's a link to the UK Bill -
https://www.gov.uk/government/news/government-unveils-most-significant-reforms-t...
Of course the one thing about being involved in drafting legislation is that there would appear to be an endless stream of work to do! (Do you have an area of preference / specialization?)
Our personal preference is reading (and writing about law cases - can't say too much about that here otherwise the referees start blowing whistles and waving flags!).
To keep it general our premise is that the legislators provide the framework, the courts add the substance, based on the intersection between real life and the legal framework.
What is interesting is the extent to which the cases across jurisdictions (especially the USA, UK, Canada, Australia and South Africa) deal with similar problems and in many instances come up with similar outcomes.
In South African legislation since 1994 (when we rejoined "the world") most of our laws contain a provision that permits courts applying the particular act to have reference to foreign law in the interpretation of and development of that act.
Looking forward to sharing more cups of coffee with you.
We understand that most lawyers are sensitive about the fire engine epithet. And you have chosen a different route to most to put your skills into practice.
Would be really interested to hear more from you about the elements of your craft especially regarding the use of words and rules of grammar in drafting legislation.
Know very few pieces of legislation we'd try to read for fun though ....but an interesting challenge to which we will give some thought.
One recent piece of legislation we have earmarked for further attention (when we've some time) is the Labour Bill recently introduced into the UK - especially because the UK and other jurisdictions are still battling with some of the issues we've actually settled when adopting our Labour Relations Act 1995 - which was a vital piece of legislation to address major imbalances in our Labour Market that arose in the apartheid era. But since there is a major time interval since our act was promulgated the UK Bill deals with many more recent problems which our legislation needs to address.
Here's a link to the UK Bill -
https://www.gov.uk/government/news/government-unveils-most-significant-reforms-t...
Of course the one thing about being involved in drafting legislation is that there would appear to be an endless stream of work to do! (Do you have an area of preference / specialization?)
Our personal preference is reading (and writing about law cases - can't say too much about that here otherwise the referees start blowing whistles and waving flags!).
To keep it general our premise is that the legislators provide the framework, the courts add the substance, based on the intersection between real life and the legal framework.
What is interesting is the extent to which the cases across jurisdictions (especially the USA, UK, Canada, Australia and South Africa) deal with similar problems and in many instances come up with similar outcomes.
In South African legislation since 1994 (when we rejoined "the world") most of our laws contain a provision that permits courts applying the particular act to have reference to foreign law in the interpretation of and development of that act.
Looking forward to sharing more cups of coffee with you.
8lilithcat
The reason I have not participated in this group is the insulting manner in which you have described lawyers.
Why would I want to be in a group that denigrates my profession?
Why would I want to be in a group that denigrates my profession?
9legaleagles
Whoa!
Don't forget - we're lawyers too. Would have thought denigration would been referring to lawyers as "ambulance chasers" (which to be clear we didn't and won't, for obvious reasons).
"Fire engines" was used in the context of consulting with lawyers being "a grudge purchase". In other words clients often call in the lawyers only when the house is already on fire instead of including them at an earlier strategic stage. This applies to"commercial" and as well as "litigious" matters.
So let's have your views on :
(a) what's been discussed so far;
(b) what we can explore going forward; and
(c) how to get some other lawyers to join this group.
We look forward to you making a positive contribution.
BTW - if you do stay in touch, "membership" has doubled this week.
And it would be great if we could manage to double each week for a few weeks.
We are very recent arrivals to librarything and so can't refer too many folks to join, since we don't know too many. But working on that, one step at a time.
Don't forget - we're lawyers too. Would have thought denigration would been referring to lawyers as "ambulance chasers" (which to be clear we didn't and won't, for obvious reasons).
"Fire engines" was used in the context of consulting with lawyers being "a grudge purchase". In other words clients often call in the lawyers only when the house is already on fire instead of including them at an earlier strategic stage. This applies to"commercial" and as well as "litigious" matters.
So let's have your views on :
(a) what's been discussed so far;
(b) what we can explore going forward; and
(c) how to get some other lawyers to join this group.
We look forward to you making a positive contribution.
BTW - if you do stay in touch, "membership" has doubled this week.
And it would be great if we could manage to double each week for a few weeks.
We are very recent arrivals to librarything and so can't refer too many folks to join, since we don't know too many. But working on that, one step at a time.
