> Content creators often have specific, limited legal rights to specify how their content is consumed, none of which are absolute and most of which vary wildly between different jurisdictions.
Not really. What's limited is not content creators ability to specify consumption, but rather the assumption of the ability of the counter-party to understand and agree to the terms. There are some genuine content restrictions, like first sale doctrine, but those are fairly narrow in scope. EULAs are limited not by the fundamentals of the medium, but by the assumed ability of the customer to meaningfully agree to the terms.
If you want to argue against my position, you should be taking the position that your average web surfer does not have the ability to meaningfully agree to the terms of the contracts with all of the websites they visit, and that thereby those contracts are unenforceable. That is the correct and only correct objection to the moral obligation to view ads.
You could argue that web users with adblockers are rejecting these agreements by refusing to HTTP GET the linked ad content and that the sites are accepting the modified terms if they subsequently serve the requested non-ad content.
Yep, that'd be a reasonable case to make. Although the site could simply augment its terms with "Serving the content any way does not represent a change in terms; proceeding to consume our content remains in violation" to clarify.
While we're into making one-sided arrangements, one could add to the HTTP headers: "Serving this request in any way consents to having the content returned displayed in a matter that is determined by the user-agent and the user. This supersedes any other terms of service that purport to governing the processing of this requerst."
This, at least, has the precedent of accurately describing how websites have been presented since the days of NCSA Mosaic.
At the end of the day, I'm not sure that unread terms presented from either side should have anything to do with it.
I disagree with you on quite a few different levels and, for clarity, I'll attempt to separate them out in this reply.
First of all, you've completely conflated the distinction between legal and moral obligations. Your entire argument in this post is a legal argument, from which you jump to an entirely unfounded moral assertion. Even if I agreed with your legal argument, which I don't, the moral conclusion would not follow. Since you've offered no moral argument, I'll confine the rest of my response to the legal issues.
Secondly, your legal argument seems specific to the U.S. legal system (for instance, you reference the first sale doctrine, which is specific to U.S. copyright law). In most of the world, I'm happy to note, EULAs are a legal non-starter and TOS are significantly limited by legislation. To give you a concrete and topical example, the GDPR directly invalidates virtually all existing website ToS in the EU (exceptions exist, but are few and far between).
Thirdly, even in the context of the U.S. legal system, which I am not subject to and from which I derive no moral obligation, I believe you're incorrect. The argument you propose is certainly one possible and strong objection to the legal (rather than moral) obligation to view ads, it is by no means the only one. For instance, the absolute majority of the ToS you're defending here do not force visitors to explicitly agree to their terms before proceeding further. This overwhelmingly popular class of ToS was rendered largely unenforcable even in the U.S. by the precedent of Nguyen v. Barnes & Noble, Inc. [1], and the legal argument had nothing to do with the ability of your average web surfer, but rather the lack of constructive notice on the part of the website. We can discuss other precedents if you like, as there are several, but it's clear that contrary to the picture you attempted to present, even in the U.S. legal system it is far from the case that browsing a website implies a contractual relationship with binding terms of service.
If you personally feel a moral obligation to watch ads on websites you visit, that's your business. I don't see any reasonable basis to your attempt to find a legal justification for your position, and you haven't presented any moral argument that didn't directly derive from an incorrect legal position. There are certainly moral arguments you could pursue and, although I haven't yet seen one that was even mildly persuasive, we can have that discussion as well.
I mostly agree with you. I'm not making arguments about the behavior of most websites - i'm taking a more abstract perspective.
> and the legal argument had nothing to do with the ability of your average web surfer, but rather the lack of constructive notice on the part of the website
Indeed, I also do not consider websites without constructive notice to have legally binding terms. I'm referring specifically to cases that do have constructive notice.
> but it's clear that contrary to the picture you attempted to present, even in the U.S. legal system it is far from the case that browsing a website implies a contractual relationship with binding terms of service.
Those terms are limited, but there are terms. That is my point. The existence of such a contract is limited, but not zero.
Okay, so you agree that in the absolute majority of cases users have no legal obligation whatsoever to watch ads, but you're interested in a hypothetical website that has constructive notice for terms of service that specifically include language which says users must watch ads. All right, let's discuss that.
In this case, even though the contract itself is enforcable, it does not necessarily follow that every clause is enforcable. Standard unilateral contract law restrictions apply. To the best of my knowledge, no comparable clause has ever been directly tested in a U.S. court, so we'll have to speculate. However, it is well established that certain types of clauses are invalid for reasons such as being unconscionable (compulsory arbitration clauses are a common example). The extent to which a website's terms of service can restrict your legal right to not download certain network packets or adjust how your browser interprets them is an open legal question, at least in the U.S. (I'm confident no such ToS would be upheld in the ECJ).
Furthermore, if we lived in the (in my opinion, dystopian) world you envision, what happens if due to, for instance, an ISP routing issue the third party advertisements you've "agreed to" aren't loaded onto your computer? Are you in breach of contract? And this is not even touching upon the question of whether a "legal obligation to watch" the content your browser actually displays in the end makes any sense (I don't really see how it could).
Also, while this is an amusing legal question to ponder, I continue to hold that the finer points of contract law in a particular jurisdiction don't really serve to illuminate any underlying moral questions.
> Okay, so you agree that in the absolute majority of cases users have no legal obligation whatsoever to watch ads, but you're interested in a hypothetical website that has constructive notice for terms of service that specifically include language which says users must watch ads. All right, let's discuss that.
I'm not sure exactly how hypothetical it is - I see websites doing this now. But yes, this is what i'm talking about.
> Furthermore, if we lived in the (in my opinion, dystopian) world you envision, what happens if due to, for instance, an ISP routing issue the third party advertisements you've "agreed to" aren't loaded onto your computer? Are you in breach of contract?
I think you can answer this question yourself :). This happens all the time in real world contracts. Some unforeseen, unspecified circumstances crop up, and an arbiter or judge decides whether and to what extent they fall under the existing terms. My personal opinion is that if this happened and it was a condition not explicitly spelled out in the terms, it would not be a breach. Because you basically acted in good faith, and factors beyond your control prohibited you from complying.
> Also, while this is an amusing legal question to ponder, I continue to hold that the finer points of contract law in a particular jurisdiction don't really serve to illuminate any underlying moral questions.
I agree, they don't. I think the basic moral principle is this: You create a thing. You say to the world "Hey world, i'll let you consume my thing, if you do this other thing". The world has the right to say "No thanks, we don't want your thing, because the other thing is too onerous". They do not have the right to say "The other thing is too onerous, but we're going to take your thing anyway, thanks."
> I think you can answer this question yourself :). This happens all the time in real world contracts. Some unforeseen, unspecified circumstances crop up, and an arbiter or judge decides whether and to what extent they fall under the existing terms. My personal opinion is that if this happened and it was a condition not explicitly spelled out in the terms, it would not be a breach. Because you basically acted in good faith, and factors beyond your control prohibited you from complying.
It's easy to invent more complex issues that render the enforcability of the contract suspect. For instance, I use NoScript. If your ToS notice relies on JS, as most of them do, I won't even see it. Have I agreed to the contract? What if my browser is configured in such a way that I can't see your ad, but I haven't specifically blocked it? Were the precise technical requirements explicitly stated in your ToS? If not, how would I even know how to comply? Even if your legal system recognizes such clauses, they are utterly unenforcable as a matter of fact, if not as a matter of law.
> I think the basic moral principle is this: You create a thing. You say to the world "Hey world, i'll let you consume my thing, if you do this other thing". The world has the right to say "No thanks, we don't want your thing, because the other thing is too onerous". They do not have the right to say "The other thing is too onerous, but we're going to take your thing anyway, thanks."
It's certainly a moral principle, but I doubt you'd find many people who would agree that principle supersedes every other consideration. Even in the crazy world of the U.S. legal system, copyrights and patents have limitations and expirations. If you create a thing and publish it, you certainly have a limited say in what happens to it, but you don't get to dictate terms in perpetuity and at whim, nor should you. In a society that prioritizes the rights of creators to the exclusion of everything else inventions have very little value.
In fact, one could argue that in the case of websites we care so (comparatively) little about the public interest precisely because most websites offer little of significant value.
> It's certainly a moral principle, but I doubt you'd find many people who would agree that principle supersedes every other consideration.
No, it most certainly doesn't. But the burden of proof is very clearly established to be on the side of those wanting to limit private property and contract rights. I see no proof of significant public interest in restricting this right.
> In fact, one could argue that in the case of websites we care so (comparatively) little about the public interest precisely because most websites offer little of significant value.
This is pretty clearly false. Plenty of websites offer enormous value. But even if it weren't, there's a feedback loop here. Content created is influenced by regulatory climate, just as regulatory climate is influenced by content created.
> EULAs are limited not by the fundamentals of the medium, but by the assumed ability of the customer to meaningfully agree to the terms.
You can't use a EULA to extend the term of your copyright. EULAs are quite definitely limited by far more than the "ability of the counter-party to understand and agree to the terms".
Not really. What's limited is not content creators ability to specify consumption, but rather the assumption of the ability of the counter-party to understand and agree to the terms. There are some genuine content restrictions, like first sale doctrine, but those are fairly narrow in scope. EULAs are limited not by the fundamentals of the medium, but by the assumed ability of the customer to meaningfully agree to the terms.
If you want to argue against my position, you should be taking the position that your average web surfer does not have the ability to meaningfully agree to the terms of the contracts with all of the websites they visit, and that thereby those contracts are unenforceable. That is the correct and only correct objection to the moral obligation to view ads.