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Caution Urged for Entertainment and Media Companies In How Their Website Terms of Service Are Accessed by Users
The vast majority of terms of service (TOS) on websites are unenforceable. Entertainment, media and other companies spend a great deal of time and money in crafting what they believe to be appropriate TOS, which they hope will provide the various protections, safe harbors and advantages needed in dealing with the public or in transacting business. Countless hours are spent honing, devising, revising and fine-tuning. Eventually, the TOS are crafted just the way the entertainment or media company wants them, then they are posted. From time to time, as circumstances change, the TOS are revised. After the countless hours of design, reflection, revisions and the legal fees costs, the appropriate well-crafted TOS appear. Unfortunately, in most cases those bits will not have any legal bite.
The limitations on damages, the forum clauses, the mandatory arbitration, the automatic renewals, the IP ownership clauses, the assignments and the licenses are all for naught. Because when the company goes to enforce the TOS, believing it has entered into a contract with its users, the company is unpleasantly surprised time and again by judges who refuse to enforce the TOS.
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