No, circumstantial evidence is evidence. When it comes to proving intent in criminal trials, it’s usually the only type of evidence available, unless someone decides to write down something incriminating. Yet we stil manage to convict lots and lots of people on the basis of this circumstantial evidence.
Lots of things get written without “proof.” Such as FTC guidelines being arbitrary.
Not all law is public law. Contracts are legally binding, as are clickwrap agreements, etc.
Wait, what? Not all of your terms of service appear on your “terms of service” page, and your “terms of service” page fails to link to the rest of the terms of service? I can see why some people think so highly of your terms of service and legalese.
Given the way you present things, I think it would be much clearer to say you disclose affiliates in your privacy policy, which is the name of the document where the affiliate program is described (and not saying you disclose them in your terms of service, as it is not disclosed in the document named as such).
In other contexts I’m pretty sure Cory has argued that the community not caring is itself a market/information failure. For example, consumers say they care about privacy but continue to give it away very cheaply: to save a few cents at Amazon, or a few cents through a “loyalty” card, or for an ad-supported and personal-data-sucking app, or for an tightly-integrated iEcosystem. Next time he talks about how any of these things are bad, tell him he’s hung up on things that most of the community doesn’t care about.
In the case of Cool Tools I think that is a more reasonable argument. It’s a gadget blog, and details about their use of Amazon affiliate links are in the FAQ, not buried in the Privacy Policy. I also think people are more likely to consider that a gadget blog may be making money off of affiliate links - whereas BB is a blog with an editorial history of, as @bwv812 put it, "editorial opinions of the contributors on topics such as privacy, corporations, advertising, the monetization of audiences, the corrosive effect of money, Amazon, etc. " So the unmarked affiliate links on BB are really more of an issue than on Cool Tools, because they seem to contrast with, if not conflict with, criticisms BB has made.
Well, it used to be Kevin making them. There was another guy too, sometimes, who would set up the posts in the CMS. Mark’s only been posting them recently, if he’s posting them (because he only recently became editor there).
Yeah, it does. It’s part of the legally binding contract that Boing Boing entered into with Amazon. Boing Boing is legally required to follow the terms of the contract, or face consequences including termination of it’s affiliate relationship.
Unlike the Amazon disclosure where BB has to comply or lose their Amazon affiliate income, Rob can be all snarky about the the FTC Guidelines because the FTC is underfunded, and you practically have to get on your knees an beg them to sue you for them to do anything. But just because the FTC doesn’t sue a blog for failure to clearly and conspicuously disclose affiliate links doesn’t mean that a blog is doing the right thing by hiding the disclosures in an obscure place such as its privacy policy, as the FTC says specifically not to do.
Let’s see! You said I lied when I said that our disclosures were in our terms of service.
The first paragraph of the TOS says, “Welcome to Boing Boing…This Terms of Service (“Terms”), which incorporates our Privacy Policy, is a contract between Us and you that articulates your rights and our rights relating to the Site.”
The second paragraph of the privacy policy says, “This Privacy Policy is part of our Terms of Service, and by using the Site you agree to both”
Both these pages do link to one another, contrary to your claim that terms of service" page fails to link to the rest of the terms of service, though it is at the end of the document.
Now, I readily agree that it would be better for them to link to one another at the beginning, as well as refer to one another. This technical shortcoming will get fixed. But no-one could possibly read either and not know that they were both part of the terms of the service.
So, it simply doesn’t follow that saying “the disclosures are in our terms of service” is a lie, does it? Especially given that this entire thread, including the OP, which cites the privacy policy, is about whether or not putting the disclosures in the terms of service is good enough. The fact that they are there is taken for granted at the beginning of a discussion about whether they should be in other places, too.
P.S. Both documents are excellent and not at all legalese. They’re by the same person who did Reddit’s – absolutely the world’s very best writer of website TOSes. The division into basic TOS and Privacy Policy is a feature, not a bug. It makes it easier to understand the consequences of using the site.
If I’d posted that kind of mess, some dude named Rob would have instantly called it “the worst kind of internet lawyering” - and in that case, I’d have to agree with him.
Neo, what if I told you that all our affiliate links are for individual authors’ personal accounts.
There might be some old ones that are for a Boing Boing corporate amazon account.
This doesn’t mean we’re not bound to follow Amazon’s rules, but it does make the aptness of its TOS-required disclosures seem murky. Does Boing Boing’s collective disclosure speak for all its contributors? This is the problem with internet lawyering – it’s mostly ignorant of the complexities that matter to the analysis (yet rarely in practice, lol)
I’d say that sounds like an interesting issue for contract law attorneys to hash out, because it doesn’t seem to be anticipated in the Amazon Associates Operation Agreement. (And it is something I anticipated in earlier comments.)
I’d also say that putting in a disclaimer in the general form used in the Operations Agreement is probably a good way to hedge your bet if and when the lawyers hash it out, and not necessarily out of the goodness of your heart
It may be the case that every account needs it’s own disclaimer. It may be the case that Amazon Affiliate links are only to be used on the websites that were specifically approved with the accounts. It gets complicated. Because this is contract law, not simple, trivially easy to follow FTC Endorsement Guidelines
See, I know why you don’t like it, but it isn’t “internet lawyering.” It is “actual lawyering,” by real lawyer(s), crafted for the particular purpose of reducing established legal language to the most humane english possible without losing its court-tested strength.
It may not “work” perfectly–thats what the courts are for, after all!–and the fact that it must exist at all may reflect badly on mankind, America and our laws - but it is what it is. And it is not “internet lawyering.”
Internet lawyering is when you, say, rant on and on about the FTC Guidelines to a website served in Canada.
Really, it’s the wrapper that links them to each other. The pages themselves—at least as of their effective date, June 27, 2013, don’t link to each other—don’t link to each other. They “terms of service” certainly doesn’t link to the “privacy policy” page at the place where it explicitly invokes it.
No more than @Skeptic was lying when he said that you suggested disclosure will reduce trust, or whatever his lie was. I interpreted both as good-faith interpretations of unclear text, and although I would not have characterized your statement as a lie I wouldn’t have characterized his statement as a lie, either.
Well, the failure to interlink them is problematic, and the decision to include affiliate relationships only in the privacy policy is also questionable (regardless of whether disclosing it in the non-privacy ToS is sufficient), as the affiliate program has both privacy and non-privacy implications.
I don’t know it makes it any murkier than how other media operate. Surely BB has some house rules, just like other media operations do. You talk like this is 1995 and nobody has any idea whats this world wide internet is or how complex it is. Maybe you should talk some more about how your servers are in Canada (while ignoring that your ToS explicitly submits to jurisdiction in N.D.CA.). Edit: oh, wait, you just did.
Skeptic made one point which stuck. Namely, that BB does not use the precise wording that Amazon requires, but a slightly more compact version covering affiliate links to a few other sites.
Beschizza has agreed to make that change.
Meanwhile a gazzillion electrons are whizzing around the internets carrying this empty discussion.
Aside from my prior post about your ToS explicitly submitting to jurisdiction in California, the internet lawyers among us might wonder why this website served in Canada has a DMCA takedown-notice process described in its ToS. It’s almost like the actual lawyers who wrote the ToS think it’s subject to US laws and regulations, or something, despite what the internet-lawyering @beschizza seems to be implying.
Oh, god, now I hope that this is true, and I wish there was some way to see just how much I’ve been sending to the BB collective overlords. Do you have a link for that? Do newer affiliate cookies overwrite older affiliate cookies?
I buy a lot of stuff off AMZN, and if they are that liberal with the affiliate program, I’m going to have to use them to subsidize other things that I like.
This is true. If you want to help out BB you can come here and click an affiliate link, then surf to your choice of purchase, buy, and BB will get a credit for that purchase.
[quote]We will pay you advertising fees on Qualifying Purchases in accordance with Section 8 and the Associates Program Advertising Fee Schedule. Subject to the exclusions set forth below, a “Qualifying Purchase” occurs when (a) a customer clicks through a Special Link on your site to the Amazon Site; (b) during a single Session that customer either (i) adds a Product to his or her shopping cart and places the order for that Product no later than 89 days following the customer’s initial click-through, (ii) purchases a Product via our 1-Click feature, or (iii) streams or downloads a Product from the Amazon Site if the Product is a Digital Product; and (c) the Product is shipped to or streamed or downloaded by, and paid for by, the customer.
A “Session” begins when a customer clicks through a Special Link on your site to the Amazon Site and ends upon the first to occur of the following: (x) 24 hours (except in the case of Special Links to the myhabit.com site or the local.amazon.com site, in which case 30 days) elapses from that click; (y) the customer places an order for a Product that is not a Digital Product; or (z) the customer follows a Special Link to the Amazon Site that is not your Special Link.
[/quote] https://affiliate-program.amazon.com/gp/associates/agreement
We will pay you advertising fees on Qualifying Purchases in accordance with Section 8 and the Associates Program Advertising Fee Schedule.Subject to the exclusions set forth below, a “Qualifying Purchase” occurs when (a) a customer clicks through a Special Link on your site to the Amazon Site; (b) during a single Session that customer either (i) adds a Product to his or her shopping cart and places the order for that Product no later than 89 days following the customer’s initial click-through, (ii) purchases a Product via our 1-Click feature, or (iii) streams or downloads a Product from the Amazon Site if the Product is a Digital Product; and (c) the Product is shipped to or streamed or downloaded by, and paid for by, the customer.
A “Session” begins when a customer clicks through a Special Link on your site to the Amazon Site and ends upon the first to occur of the following: (x) 24 hours (except in the case of Special Links to the myhabit.com site or the local.amazon.com site, in which case 30 days) elapses from that click; (y) the customer places an order for a Product that is not a Digital Product; or (z) the customer follows a Special Link to the Amazon Site that is not your Special Link.
Note how they call these “advertising” fees. So even if people here think this is not advertising, Amazon does.
Anyway, follow an affiliate link to Amazon, and anything you add to your cart for the next 24 hours (or less if you take another affiliate link to Amazon before the 24 hours expires) will be credited to that affiliate, so long as you complete the purchase within 89 days.
