I wonder if you can click on "I agree", and lie. Then you wouldn't be bound by the terms, because you didn't consent to them, but your wrongdoing would have been to access the service without permission.
It's a bit like violating the GPL: If you modify a GPL program and distribute it without source, you violate the license between you and the person you obtained the program from. But one could also argue you "stole" the program in the first place and used it without license. In both cases I wonder which "crime" would have the lesser consequences.
There is however a reasonable chance the person clicking I agree is not the end user. Setup a Facebook account for your grandparents who never click agree. Are they then bound by the TOS?
In the end TOS are generally weakly enforceable. If facebook adds a 10,000$ annual fee in the fine print and there unlikely to be able to collect.
> Setup a Facebook account for your grandparents who never click agree. Are they then bound by the TOS?
My guess is that a court would ask: Can you reasonably be said to be the "agent" [1] for your grandparents --- that is, would a reasonable person, taking an objective look at the facts, conclude that your grandparents had authorized you to make binding agreements on their behalf --- for the kinds of transactions specified in the TOS?
If that's the question, then:
-- You probably are your grandparents' agent when it comes to agreeing, on their behalf, to the "customary" terms in TOS, such as (for example) a statement that the Web site owner owns all content;
-- You probably are not your grandparents' agent for purposes of agreeing to pay a $10K annual fee, and therefore they wouldn't be bound. (You might be bound, though ....)
Adding a fee would be a material change, and would require further consent... also, the clauses about deleting content and restricting access are all made with future cash charges as a possibility.
Said another way: these are set up with the ability to charge you later in mind.
Most companies maintain pretty extensive analytics data - would a court consider whether or not a given user ever even actually looked at the ToS as some kind of objective proof that they couldn't have possibly agreed with it? Or say the user visited the ToS page, but only for 30 seconds - that is, not long enough that reading the entire ToS is within the realm of human possibility?
It's a bit like violating the GPL: If you modify a GPL program and distribute it without source, you violate the license between you and the person you obtained the program from. But one could also argue you "stole" the program in the first place and used it without license. In both cases I wonder which "crime" would have the lesser consequences.