Non-Intrusive Ads… for a Short While

[Angry_Panda]

You mean the ones about advertisments and third party content? That have been added recently (likely with the launch of the non-intrusiveness)? You do realize that this approach of "we can do anything and are responsible for nothing" has already been tested in court and stood up poorly, right? Any jackass can write crap to that effect, it does not mean much in the event of real, provable damages. Especially since there are clauses that are clearly a joke, given the nature of the site (like 3.1.7 and 3.1.8). So yeah, not much of ass coverage provided, but by all means, let them continue to host scam ads so it can be tested again. At the very least the identities of the guys involved will become public knowledge.

Ah, so you've read them and continued to use the site, which means you've agreed to be bound by them. Carry on then.

 

[finalm]

Ah, so you've read them and continued to use the site, which means you've agreed to be bound by them. Carry on then.

Yes, I read them. You however, clearly didn't read what I said. Well, that's ok - it's just as binding as those "terms" in practice, only I don't pretend otherwise.

 

[Angry_Panda]

Yes, I read them. You however, clearly didn't read what I said. Well, that's ok - it's just as binding as those "terms" in practice, only I don't pretend otherwise.

Okay, I'm game. What real, provable damages?

 

[finalm]

Okay, I'm game. What real, provable damages?

Read it again. Slowly this time.

 

[Angry_Panda]

Read it again. Slowly this time.

You're the one making the argument. Spell it out for me.

 

[finalm]

You're the one making the argument. Spell it out for me.

Fine. Firstly, I wrote "in the event of", so I'm not claiming those have been done already (at least to my knowledge). A hypothetical, see? Secondly, if you want examples, how about malware being transmitted as "third party content" through the ads and it leading to said damages? I'm sure I don't need to elaborate what kind, it's not like that's an unheard of story. Yes, I know there's a clause saying "we're not responsible for that" in short, but that's my point exactly - it wouldn't help. Also, this is besides the fact that currently you interact with the ads before you even have the chance to read the ToS - that's a separate can of beans.

 

[Angry_Panda]

Fine. Firstly, I wrote "in the event of", so I'm not claiming those have been done already (at least to my knowledge). A hypothetical, see? Secondly, if you want examples, how about malware being transmitted as "third party content" through the ads and it leading to said damages? I'm sure I don't need to elaborate what kind, it's not like that's an unheard of story. Yes, I know there's a clause saying "we're not responsible for that" in short, but that's my point exactly - it wouldn't help. Also, this is besides the fact that currently you interact with the ads before you even have the chance to read the ToS - that's a separate can of beans.

So if I'm understanding this correctly, your contention is "if someone got malware, etc., from an ad on the site, they would somehow be able to do an end run around all the terms of service, including the dispute resolution portions, and sue the site ownership directly for damages"?

 

[finalm]

So if I'm understanding this correctly, your contention is "if someone got malware, etc., from an ad on the site, they would somehow be able to do an end run around all the terms of service, including the dispute resolution portions, and sue the site ownership directly for damages"?

Not quite. It's not "getting around them", because things that cannot be binding (like shirking responsibility for mechanisms you made) simply aren't in the first place. Policy can't override actual law, so the court will just dismiss it.

As for disputes, that is honestly a very complicated matter, since whether ANY of what's written there holds water depends on many circumstances, not just the jurisdiction. In any case, it might be a royal pain in the ass and a lot of wasted time, but in the end, no arbitration process can prevent a direct lawsuit in the long term. In the worst case, you'd just need to do the whole song and dance, stick to your guns and you'll get the opportunity eventually. The whole process is meant to be as annoying and energy draining as possible, that's why so many companies like to use it in the hopes you'll give up.

 

[Manko-sensei]

I must admit yes, Google is so damn annoying, that's why I refrain from using anything polluted by them. Even courts mean nothing to them.

 

[Angry_Panda]

Not quite. It's not "getting around them", because things that cannot be binding (like shirking responsibility for mechanisms you made) simply aren't in the first place. Policy can't override actual law, so the court will just dismiss it.

Well, I guess it's a good thing MD is reviewing all the ads they accept to make sure there's no malware before putting them up. And would be able to present evidence of that review process out in the case of a claim of actual user damages, to show the advertiser pulled a bait-and-switch, demonstrating that MD was as much a victim as the user(s) affected.

in the end, no arbitration process can prevent a direct lawsuit in the long term.

The whole process is meant to be as annoying and energy draining as possible, that's why so many companies like to use it in the hopes you'll give up.

The latter is what I would describe as literally 'preventing a lawsuit'. Bring a suit in your local US court outside of the terms on the website, and the judge will read the MD ToS and throw the suit out because you didn't follow the process. Handwaving the MD ToS away because some other site somewhere did a bad job with their ToS doesn't mean anything in this context.

 

[finalm]

I must admit yes, Google is so damn annoying, that's why I refrain from using anything polluted by them. Even courts mean nothing to them.

Google has considered itself on par with a nation for some time now and why shouldn't they, after being coddled by all US governments for decades? They can still be humbled, but it takes authorities outside of the US to really stick it in, like the EU.

 

[finalm]

Well, I guess it's a good thing MD is reviewing all the ads they accept to make sure there's no malware before putting them up. And would be able to present evidence of that review process out in the case of a claim of actual user damages, to show the advertiser pulled a bait-and-switch, demonstrating that MD was as much a victim as the user(s) affected.

That's all well and fine but it still wouldn't prevent them from having to compensate. At best it would prevent any punitive measures levelled in response to "gross negligence" allegations. You simply don't get to lay all the blame on a subcontractor and move on. You pay compensation and after that, if you think you have a casae, take the advertiser to court and get back your money from them.

The latter is what I would describe as literally 'preventing a lawsuit'. Bring a suit in your local US court outside of the terms on the website, and the judge will read the MD ToS and throw the suit out because you didn't follow the process. Handwaving the MD ToS away because some other site somewhere did a bad job with their ToS doesn't mean anything in this context.

I clearly stated that in the worst case (as in, the circumstances mean that yes, you have to arbitrate with them) you have to play their game for a while before suing. It's difficult to say how long without concrete details, but the process will one day end either in success (you gave up and agreed to whatever was decided) or failiure. In the latter's case, then you can sue. If this kind of stalling fits the definition of "preventing" to you, then fine, I beg to differ.

 

[Angry_Panda]

That's all well and fine but it still wouldn't prevent them from having to compensate. At best it would prevent any punitive measures levelled in response to "gross negligence" allegations. You simply don't get to lay all the blame on a subcontractor and move on. You pay compensation and after that, if you think you have a casae, take the advertiser to court and get back your money from them.

Not if your lawyer's actually earning their pay. There would be a clause in the advertiser agreement covering this situation - trot that out in court. The user's beef is now solely with the advertiser.

If this kind of stalling fits the definition of "preventing" to you, then fine, I beg to differ.

It exactly fits that definition in my book.

 

[finalm]

Not if your lawyer's actually earning their pay. There would be a clause in the advertiser agreement covering this situation - trot that out in court. The user's beef is now solely with the advertiser.

A I've already said, I'm afraid that's not how it works. Get that top lawer and ask him/her if you don't want to believe me.

There was recently a case with a hospital that had to dish out compensations for having it's patients data potentially become public, due to the fact that their subcontractor just stored it somewhere rather than disposing of it as agreed in the contract between them. It was the same way there and it's rutine. The client/user's beef is with the business they custom. Said business does not get to point the finger at someone else and say "take it up with them" if the incident happened on their infrastructure.

It exactly fits that definition in my book.

Jolly good.

 

[Angry_Panda]

There was recently a case with a hospital that had to dish out compensations for having it's patients data potentially become public, due to the fact that their subcontractor just stored it somewhere rather than disposing of it as agreed in the contract between them. It was the same way there and it's rutine. The client/user's beef is with the business they custom. Said business does not get to point the finger at someone else and say "take it up with them" if the incident happened on their infrastructure.

Medical records are bound by a different set of laws in the US, and you're giving an example of a data breech rather than malware or something similar. I don't really consider this apples to apples with the situation of catching malware from an ad on a website.

 

[finalm]

Medical records are bound by a different set of laws in the US, and you're giving an example of a data breech rather than malware or something similar. I don't really consider this apples to apples with the situation of catching malware from an ad on a website.

Yeah and the subcontractor got the hit for the data breach, since it was them that became liable for it when signing the contract. The sum they had to pay paled to the amounts ruled for the hospital, since those came from direct damage claims. Of course it's not 1-1, pretty much no cases are. It still illustrates how this kind of thing actually goes down. As I said though, consult a trusted lawyer if you think I'm full of bull.

 

[HaikenEdge]

Doesn't the nature of MD already make the entire ToS completely unenforceable?

Contracts cannot be applied to illegal activities. Manga piracy is illegal. Therefore, wouldn't the ToS for a site that actively pirates manga is itself not be legally binding because the entire purpose of the website to break the law to begin with? Doesn't matter if they're just hosting it; Napster got nailed by the record labels even though it didn't even host anything, and I think that's a legal precedent that applies to MD.

The only way I can think of where MD's ToS could actually be enforceable in a court of law is if they purged all scanlated projects and only accepted submissions by the comics own creators, but at that point, MD would collapse from an even larger user exodus.

 

[Angry_Panda]

As I said though, consult a trusted lawyer if you think I'm full of bull.

I don't, and I want to be careful not to veer into personal attacks - that's not productive at all.

 

[Angry_Panda]

Doesn't the nature of MD already make the entire ToS completely unenforceable?

Contracts cannot be applied to illegal activities. Manga piracy is illegal. Therefore, wouldn't the ToS for a site that actively pirates manga is itself not be legally binding because the entire purpose of the website to break the law to begin with? Doesn't matter if they're just hosting it; Napster got nailed by the record labels even though it didn't even host anything, and I think that's a legal precedent that applies to MD.

The only way I can think of where MD's ToS could actually be enforceable in a court of law is if they purged all scanlated projects and only accepted submissions by the comics own creators, but at that point, MD would collapse from an even larger user exodus.

MD makes everyone uploading a work check a box that says they have permission/rights to upload the work to the site. If someone were to upload something in violation of copyright, they personally would be responsible for that, and MD would be in the clear so long as they complied with any DMCA takedown request from the copyright holder.

 

[finalm]

MD makes everyone uploading a work check a box that says they have permission/rights to upload the work to the site. If someone were to upload something in violation of copyright, they personally would be responsible for that, and MD would be in the clear so long as they complied with any DMCA takedown request from the copyright holder.

To be honest, that checkbox is utterly pointless. The uploaders are personally responsible for their content regardless if it exists or not and while I get the intention to hide behind the DMCA act and it's provisions for user generated content, I don't think MD would have a snowball's chance in hell, if it really went to court. That's because it's pretty much impossible to make an argument that the site ISN'T made with the intention of hosting content illegaly. The number of publications they actually have the rights holder's permission for is almost non-existant compared to all the rest. This is in contrast to platforms like Youtube, where it's the other way around.

The only true thing protecting both MD and the scanlators is the fact that no one would actually bother to go through the courts with this. At least, it did so far. Now that MD is known to have sources of ravenue and an actual company behind it, someone might decide to actually bet that they'd get more out of them than they'd use on such a project.