Change of Allegiance
As I've mentioned over at En Banc, I'm a bit wary about have associates links on this site anyway. However, one visitor to the site pointed out a bit of Amazon.com's Operating Agreement that I hadn't noticed:
You may not purchase products during sessions initiated through the links on your site for your own use, for resale or commercial use of any kind. This includes orders for customers or on behalf of customers or orders for products to be used by you or your friends, relatives, or associates in any manner. Such purchases may result (in our sole discretion) in the withholding of referral fees or the termination of this Agreement.
Now, I have two problems with this:
1: Amazon doesn't list this in its Associate's FAQ, but only in the Operating Agreement. This is the 'review and click here' form agreement that no one (including, it seems, this law student) reads carefully.
2: Amazon's policy isn't 'we won't credit you for items purchased through your logon or sent to your address.' I'd have no great problem with that. But this puts the burden on the associate to make sure he doesn't make a purchase. This isn't easy to do: if you test any of the links that Moveabletype makes for you, Amazon sets a cookie. Make a purchase within 24 hours, and it's likely that you're going to make a purchase through your website, whether you meant to do so or not. Bingo, possible breach of contract. Nor is there a way for you to disclaim such a purchase manually. The suggestions I've seen for avoiding this range from 'type the URL in the browser' (which doesn't always work) to 'disable cookies on Amazon.com' (for which they've got to be kidding).
So, the next step of the New Year's redesign will be a nice suggested books column in the top navigation bar, and it will use Barnes & Noble's affiliate scheme. They don't seem half so picky.
That being said, one course in contracts and one course in civil procedure leave me in awe of Amazon's associate scheme. The agreement has it all: a mandatory arbitration agreement (as with Itoh v. Jordan); an agreement to forego any kind of class-action or class-arbitration lawsuit; a venue provision (a la Carnival Cruise Lines v. Shute)... in short, everything you'd need to make certain that some small fry would never be able to challenge your big corporate badness over any decision you happen to make. My hat's off, really. I've been reading a lot of form contracts lately (though not this one--I joined before law school), and this one is the most obviously evil.
Of course, now I'm interested enough to go research whether the Operating Agreement, since it functions as a contract between a major corporation and private individuals, might be considered a contract of adhesion, and if any of these terms are actually enforceable. I can't imagine a suit would be worthwhile if it weren't a class-action, and to get there you'd have to get past two clauses of the arbitration provision and get some of the contract declared void for unconscionability. I'd imagine it would be quite tough, if not impossible.