Online Terms of Use Agreements and Teacher Liability
Justin Bathon on Monday, February 15, 2010 at 5:52PM 
A couple weeks ago I presented virtually at EduCon 2.2 in Philadelphia (although I was in snowy Lexington). Jon Becker created the session called Stump the Lawyers.
Anyway, they stumped us (sort of, I sheepishly admit, although certainly we being lawyers we had something to say, even if it didn't relate).
The question is what are the legal ramifications of this scenario (here is how Jeremy Brueck wrote it in his notes):
A teacher wants to do an activity with her 5th graders. The activity requires the use of online software, which either runs online or is a download. To access the program, the user has to agree to a "terms of use" agreement. Like many of these, it contains an age provision (typically 13) (here is a typical example: Blogger). The teacher proceeds anyway to (1) either create an account for the students or (2) encourages the students to check the "I agree to the terms of service" button anyway - or other variations on that same theme. Anyway, the point is that a 12 year old or younger student is using a website with a terms of service agreement that requires them to be 13 or older. Something bad then happens; either (1) the students violate the terms of service or (2) some type of injury occurs (think sexting) and the parents sue everyone.
I had written up a long list of possible ramifications (and spent more than an hour doing so), but the legal components of each of these are so hazy that I think I would be doing everyone a disservice by making guesses without more research - so I pasted it in a Google Doc that I'll try to work up into some kind of article if I ever get time.
First, this gets into some very complicated areas of contract law, of which I am very much a novice. There are issues of infancy, misrepresentation (both intentional and negligent), coercion, and others. Depending on how it fell out, there could be 10 or more claims just on this contract issue. So, let's not go there. I will make the point that students have been held to clickwrap agreements (my concerns with that case) and that I don't think there would be much difference for teachers who have misrepresented. So, let's not go there for now. Also, I think there are possible issues of identity theft/fraud, Acceptable Use Agreement issues, and possibly others.
More to the point is the issue of what happens to the school and/or the teacher. Who can possibly sue each and what might happen? Both the school and the teacher are likely to be sued both by the software company and by the parents if there is that type of injury. In fact, there might even be a case of the school suing the teacher. Depending on what exactly happened, fraud might be involved which is clearly outside the scope of a teacher's employment and thus not covered by immunity statutes. So, personal liability for the teacher here is not out of the question. Also, the school is probably going to be open to liability for the acts of its teacher (of which they might try to recover against the teacher later). I don't see the likelihood of big damages awards here, but one can always be surprised. Also, I think the most likely scenario is that the contract is voidable by the software company, meaning that they will mostly likely just lock you out in the future. So, I don't see a ton of legal risk here, although clearly the law is against the school and teacher.
So, bottom line here is that the teacher is likely to be fired and the school is likely to settle if, in the unlikely event, someone actually has suffered a substantial injury.
What does this mean for teachers out there wanting to use these online tools? ... Are you feeling lucky?
Yeah, probably not going to get caught. Even if you do, there is probably not going to be much in the way of damages. So, it's like running to stoplight at 2 in the morning. Know that it is wrong; know that you might get caught and lose your job; then, make your decision.
Reader Comments (6)
Dr. Bathon, this also goes into the deep conversation of "org owned" versus "I owned" tools and the ability to inspect. I get the question though... "What if?" For now, and so on, shouldn't we rather fair on the side of staying above reproach...
I have a different question related to TOS that I have been trying to get an answer for for some time. Have even tried to get a response from Google with no luck.
Does Google's TOS override our Fair Use rights? Many school systems block YouTube. Can teachers download YouTube videos at home to use in their classroom when YouTube's TOS prohibit this?
I understand that it can be done, and Fair Use gives a teacher the right to use that in the classroom, and that there will probably be no consequences for breaking the TOS. Google does not seem concerned about enforcing their TOS, and does not seem to try and stop the online resources (i.e. kickyoutube.com) that provide the download services.
But even if there are no consequences, should we be violating a TOS (unless Fair Use overrides this in the legal sense) when we ask students to obey school rules such as "no cheating" or "no fighting" or "no running in the halls?"
So far, the article and responses gloss over "so the teacher gets fired" bit. Someone should not get fired over something as "hazy" as this scenario and yet possibly would. In my experience (union rep), administrators tend to see all too many issues regarding teacher actions as black or white, when they are really many shades of grey. One only-possibly-questionable decision on one day in the midst of teaching a group of 11-year-olds should not jeopardize a person's job.
@Marty - Yeah, that would factor into it. The question assumes an "org owned" agreement, but I don't think "I owned" is really an answer either because then you are basically denying students access to the latest and greatest tools. The staying above reproach issue is complicated. I can't say for sure because my search was not exhaustive, but I don't think there has been a case on this ... meaning it might not even be much of a real issue. If I were the organization and then 10 year olds were using my site, I would be happy because they are being indoctrinated even earlier. If anything goes wrong, just block them. So, we are pretty borderline here.
@Craig - Great question, and one I will have to research more. From a quick glance, it looks as though there might be a split in the Circuits on this issue. Typically, I feel the contract language is likely to carry the day, but it is only because of the extremely shaky nature of these particular contracts that calls it into question. This is a particularly tough issue because once one of those clickwrap agreements are found to control Fair Use, then every company will just include a limitation on fair use in their clickwraps. Great question, but definitely my leaning at this moment (and I need to do more research) is that the contract language will control as long as it is specific in the exceptions it is making.
@NancyEH - Good point. It is not a foregone conclusion that a teacher would be fired, but they could be fired. You are right that it is too black and white sometimes and administrators function in shades of grey, but certainly it could be a cause for termination. If a real lawsuit ensued and the school winds up paying a hefty settlement ... I wouldn't like the teacher's chances of hanging around.
@Craig,
As I interpret Fair Use...
a) I would think this would flunk the brevity component... usually downloading a Youtube video means that you copy the entire video. I should think that on this one condition of Fair Use, it would be "against the teacher" rather than "for" in terms of tipping the scales.
b) I don't think Fair Use addresses this, but copyright exemptions do. In the exemptions for showing performances in classrooms, you must legally obtain the material you use - meaning you can rent a video from a video store and show to students (under certain conditions), but you cannot dub your own copy and show the same video to students. Downloading the video from Youtube (essentially making a copy) would be an unlawful method of obtaining the video.
But... the exemptions and Fair Use guidelines are two different things - so not sure how they add up (or if they simply do not add up).
http://www.copyright.gov/title17/92chap1.html#110
The folks at ReasonableAgreement.org suggest that everyone should merely have their own TOS statement for vendors, businesses and other entities one deals with.
It's basically an end user agreement for the everyman as an effort to counteract the ridicullous terms set forth in most corporate EULAs.
Here's the text:
READ CAREFULLY. By [accepting this material|accepting this payment|accepting this business-card|viewing this t-shirt|reading this sticker] you agree, on behalf of your employer, to release me from all obligations and waivers arising from any and all NON-NEGOTIATED agreements, licenses, terms-of-service, shrinkwrap, clickwrap, browsewrap, confidentiality, non-disclosure, non-compete and acceptable use policies (”BOGUS AGREEMENTS”) that I have entered into with your employer, its partners, licensors, agents and assigns, in perpetuity, without prejudice to my ongoing rights and privileges. You further represent that you have the authority to release me from any BOGUS AGREEMENTS on behalf of your employer.
Enforceable? Who knows. But it certainly is food for thought.