Angry New Yorker

Tuesday, June 10, 2008
And now for something completely different...

In our day jobs we work with contracts. A great deal. As in daily. As in our livelihood depends on our ability to draft, parse, modify and negotiate contracts. We print out dozens of contracts a month. For fun. As education tools. In short, we do contracts and always, and we mean painfully always, we click on every "Terms and Conditions" and "Privacy Policy" link on any website we visit. We do. It's annoying to those around us. But it's who we are.

And so we came across The New York Sun's "Terms of Use" page. We like the Sun. In a liberal island of madness it's a beacon of sanity (except for it's inordinate and ineffable recent crusade to get Bloomberg in the White House. Sorry, fellas, it was doomed from the start - and rightfully so. Of course if the Mad Marxist, a/k/a Obama, gets in to the Whitehouse, sheesh; don't get us started).

Anyway, the Sun's Terms of Use is quackery. We hate to denigrate a fellow practitioner's handiwork, but there's elegant and then there's effluvium. And this, sir, is effluvium. When more time presents itself we'd like to do a Ken Adam-like annotated exegesis of the Sun's ToU, but for now, behold this clause: "It is prohibited to link other sites to this Web site without The New York Sun's prior written permission."

As in YOU can't link YOUR site to us without OUR advanced written by your leave. Sort of defeats the purpose of this little thing called, ahem, the World Wide Web. Don't cha think? We have a saying for this kind of baloney. But this is a family website and we shall refrain in the interest of good taste and maintaining a civilized discourse.

The Sun's legal brain trust then goes on to proclaim "If you link to this Web site, we require that you follow these guidelines. You may link only to the home page, and not to any other page, directory or subdomain of the Web site." Really? Do tell. You require that we follow these guidelines, else what? You'll release the dogs? Or the bees? Or the dogs with bees in their mouth and when they bark they shoot bees at you?

Gentlemen, I suggest you delve deeper into 17 U.S.C. 107. I also imagine you have registered each posting with the U.S. Copyright office. Right? It's a big Internet out there, and frankly, users do not NEED or require permission to comment, link to or reference your website and its pages for other legitimate fair use purposes.

And here's another term you no doubt ran across in Contracts 1: "unconscionable". As in this indemnification clause included in your ToU:
User agrees to defend, hold harmless and indemnify The New York Sun and its business partners and affiliates, and each of them, against and from any and all third party claims, liabilities, damages, fines, penalties or costs of whatsoever nature (including reasonable attorney's fees and costs), arising out of or in any way connected with: (i) any breach by you of these Terms of Use; (ii) any claim based upon your ultimate use of the Content or services available on this Web site in any unauthorized manner and (iii) any content or materials submitted by you.
Good luck enforcing this in any court, anywhere, state, federal or otherwise. Words matter. And such usage mocks our craft shamelessly. We shall not even entertain the matters contained with your Governing Law and General Terms section.

And, finally, for the record, we do not agree to your terms, nor consent to exclusive jurisdiction and venue in New York county, nor to indemnify anyone associated with your operation, and for completeness, and therefore our continued visits to the website are expressly unauthorized. You may send your cease and desist notice to rhlqc at

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