The problem is that they claim that anybody who tweets at them and uses their hashtag is entering into a contract agreement with the Walt Disney Corporation, which can be found at https://disneytermsofuse.com/ . This is ridiculous because nobody needs Disney's permission to use Twitter. If somebody were to use Twitter to express to Disney a desire to enter into a contract that might be valid, but Disney can't unilaterally declare that anybody who sends a communication to them over a given medium is unconditionally agreeing to be bound by their terms of use.
It isn't.
Twitter's ToS gives Twitter a license. But not third parties on Twitter.
Disney could buy a license from Twitter who would be able to use the rights they're granted by their ToS, but they would need another contractual agreement to do so.
They made the requirements pretty clear and stringent enough that I very much doubt anyone is at risk of accidentally entering into that contract, but if that does happen, then the contract would be null. I just don't see that happening though.
The problem is Disney co-opting two regular parts of Twitter's service, and then claiming that represents a Disney service. It isn't, and can clearly be used for purposes beyond establishing a contract.
You can set up a phone line or P.O box with the same terms of service agreement. Twitter is not sacred. You can call that "co-opting" those services I suppose, but I don't see why that's a bad thing. Services exist to be used.
Disney is going to use some common sense when reviewing these tweets and filter out the trolls and people disputing the terms. They are not out here trying to trap helpless children into a contract, just make some marketing materials. Again, this is not the first time this has been done and is not controversial. Maybe I underestimated the number of troll tweets, but I'm sure Disney will figure it out just fine.
Yes they are. Did you not read their tweet? They literally called it a contract and said that they believe anybody who replies to them with that hashtag is agreeing to its terms. Their choice not to exercise the rights they are granted by that contract doesn't mean that there isn't a contract.
The only thing that does mean there isn't a contract is that their logic is bullshit and they can't unilaterally decide that somebody else has entered into a contract with them.
“@Disney #MayThe4th This tweet enters into Disney’s offered contract, except that Disney agrees to pay $100,000 for the license to optionally publish this Tweet and to include it in Tweet analysis corpuses. If Disney doesn’t explicitly object within 48 hours or collects this tweet as part of a database, they accept this modification.”
IANAL, genuinely curious.
In this case Disney offered a contract that you enter into via tweeting a reply. If you send back modified terms then Disney has the chance to review the new contract and reject or accept it. If a human saw your tweet and still included it in whatever marketing materials they are creating then you might have a good case.
Just as Disney would need to argue that you knew you were being bound by their ToS when you tweeted them, you need to show they accepted your terms. The part of your example about a time limit wouldn't fly for that reason. Both sides also have to think the contract is reasonable (not a joke). If you put a bajillion dollars as the price, there's no contract. I'm not sure if $100k for a tweet is believable.
I don't think Disney is setting any precedent or anything else weird by saying "send us messages you want us to publish, by the way here are the specific terms we want to use" on Twitter, they've been doing that for a long time before twitter even existed. Think about America's Funniest Home Videos, they did exactly this for decades but over TV.
Your tweet fails to give Disney any "consideration" so it's not going to be a valid contract and not because it's in a tweet. Offer them clearer terms and a dollar and then maybe you'd have a point. Right now they offer you a chance to see your tweet in some marketing materials, better than nothing right?
Lastly, this is incredibly specifically scoped. Does anyone tweeting "Love the new movie #MayTheFourth @Disney" really expect Disney not to want to use it? They are going to have someone review the tweets before they use them. How could this possibly come back to bite Disney?