Bezdomni wrote:mendaliv wrote:a simple reading of the TOU contract
TOU: Termination wrote:We reserve the right to suspend or end the services at any time, with or without cause, and with or without notice.
It's true that it would have probably been more felicitous had they added "access to" prior to "the services".
Well no, because that's not what that section's purpose is. The purpose is not to suspend access to services, it's to suspend services entirely. That is, winding down operations and shutting down the Foundation. It's not talking about banning an individual.
Oh and before you come back with that later sentence that talks about banning: It's just a typical part of a contract wind-up section that discusses survivability of the terms beyond the cessation of operations of WMF. That's how any court would read it and it's plainly how it's intended.
Read Section 4, "Refraining from Certain Activities", which actually deals with causes for suspending access:
We encourage you to be civil and polite in your interactions with others in the community, to act in good faith, and to make edits and contributions aimed at furthering the mission of the shared Project.
Emphasis mine. Note that being "civil" is not mandatory (nor is being "polite", but reading that sentence as mandating civility also means reading it as mandating politeness). Same section:
Therefore, for your own protection and for that of other users, you may not engage in such activities on our sites. These activities include:
Harassing and Abusing Others
- Engaging in harassment, threats, stalking, spamming, or vandalism; and
- Transmitting chain mail, junk mail, or spam to other users.
Emphasis in original. "Harassing and abusing others" does not include civility. And, here's a fun bit of reading contracts: While the word "includes" is often read to indicate a non-exclusive list follows, that non-exclusivity only applies to the first layer of the list. Sublists do not receive the expansive benefit of the term "includes". Thus, while behavior other than the bolded items may be argued to be part of the prohibited conduct, that definition of "harassing and abusing others" is exhaustive. Thus, in reading that non-exclusive list, what unwritten rules
can WMF include? It depends. Probably quite a bit, but, and this is key, it depends on the determination of a finder of fact. The fact that WMF have already put in a section on "harassing and abusing" behavior suggests that other things that could be considered "harassing and abusing" behavior that weren't included wouldn't be part of the contract.
But most importantly, read in context with the earlier sentence indicating that civility, politeness, good faith, and making contributions aimed at furthering WMF's mission are
encouraged rather than mandated, it's clear that the prohibitory portion of Section 4
would not include those aspirational things. Because they'd be meaningless otherwise. And, honestly, in a contract of adhesion like this, you would tend to construe ambiguity (if you consider this ambiguous) against the draftsman (WMF).
“It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.” United States v. Rabinowitz, 339 U.S. 56, 68, 69 (1950) (Frankfurter, J. dissenting).
