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May 1, 2013 10:37 AM   Subscribe

Small Print, Big Problem (part I)
Imagine you’ve clicked on your computer screen to accept a contract to purchase a good or service—a contract, you only realize later, that’s straight out of Kafka. The widget you’ve bought turns out to be a nightmare. You take to Yelp.com to complain about your experience—but lo, according to the contract you have given up your free speech rights to criticize the product. Let’s also say, in a fit of responsibility, (a bit fantastic, I know) you happened to have printed out this contract before you “signed” it, though you certainly hadn’t read through the thing, which is written, literally, on a “twenty-seventh grade” reading level. Well, you read it now (perhaps with the help of a friend who’s completed the twenty-seventh grade). And you see that there was nothing in the contract limiting your right to free speech at the moment you signed it. That part was added later. Your friend with the twenty-seventh-grade education points to the clause in the contract in which you’ve granted this vendor-from-hell the right to modify the terms of the contract, unilaterally, at any time into the vast limitless future.

Small Print, Big Problem (part II)

fair contracts.org asks "what have you agreed to today?"
The Guardian: Not reading the small print can mean big problems.
Do users read license agreements? - "The short answer is no."
Adobe demands 7,000 man-years a day from humankind in time to read the EULA.
Do Lawyers Actually Read Boilerplate Contracts?
Looks like some Circuit Court judges and one Supreme Court Justice do not.

You should always Read The Fine Print.
posted by the man of twists and turns (36 comments total) 19 users marked this as a favorite

 
Lost In The Fine Print: Readability of Financial-Privacy Notices
posted by the man of twists and turns at 10:47 AM on May 1, 2013


There are laws, many places, about what you can legally agree to in, eg., a lease. Any clause of a lease that contradicts the jurisdiction's landlord-tenant law or would comprise signing away essential rights under that law are deemed null and void, for example. What similar restrictions are there on these contracts we sign for provision of wifi services in a public location, other software-related agreements, etc.?
posted by eviemath at 10:48 AM on May 1, 2013 [9 favorites]


Not to worry. I'm sure the market will work this out.

Wait...
what?
This is how the market worked it out?
posted by Thorzdad at 10:49 AM on May 1, 2013 [9 favorites]


Every software EULA is like this.
posted by ceribus peribus at 11:04 AM on May 1, 2013


No idea how it is in the US, but in the Netherlands you can't just put anything into an EULA and such clauses as talked about as example would be forbidden by law.
posted by MartinWisse at 11:12 AM on May 1, 2013 [1 favorite]


ts;dr
posted by It's Raining Florence Henderson at 11:13 AM on May 1, 2013 [8 favorites]


Every software EULA is like this.

Not every software EULA. Remember that the GPL is a software EULA, for example. And many if not most commercial or proprietary software EULAs do not reserve the right to modify the terms in the future. That's much more typical of website terms of service or terms of use.

you’ve granted this vendor-from-hell the right to modify the terms of the contract, unilaterally

Depends on what you mean by unilaterally. Typically such agreements say something to the effect of "your continued use of this website/product represents your agreement to the modified terms." In other words, if you don't like the new terms, you're free to stop using the site or product and not be bound by them.
posted by jedicus at 11:17 AM on May 1, 2013 [1 favorite]


If you're really lucky, it can literally pay to read the fine print. User #3,001 was the first to read the fine print, emailed the company, and was given $1,000.
posted by filthy light thief at 11:19 AM on May 1, 2013 [4 favorites]


No idea how it is in the US, but in the Netherlands you can't just put anything into an EULA and such clauses as talked about as example would be forbidden by law.

In the US the crazy stuff -- giving up the right to criticize; conferring the right to change contract terms at will -- would probably be deemed unenforceable by a judge, and are thus bad examples of what's really unpleasant about these sorts of agreements. (Though voiding those provisions would all be common-law based and at the judge's discretion, and therefore dicey.) As long as their terms aren't objectively way out in crazytown, though, US courts will enforce the shit out of fine print and clickwrap contracts.
posted by eugenen at 11:20 AM on May 1, 2013 [2 favorites]


It's disgusting that a judge can wave this off as, "It is how it is." Who do you represent? Nevermind, don't answer that.
posted by DGCA at 11:23 AM on May 1, 2013 [1 favorite]


That's OK, because on my website I've published the agreement that people who serve me content on the web agree to. I know they've agreed to it, because it says right in there that they agree by serving me content. And just in case I've overlooked something, part of it says that it says something different whenever you're not looking at it.

No, I won't tell you the URL. Thank you for agreeing, as though you had any choice. Sucker.
posted by jepler at 11:33 AM on May 1, 2013 [1 favorite]


I heard this on Enright on CBC the other day. The sheer volume of EULA's is slowly transforming all sorts of laws. Insidious.
posted by KokuRyu at 11:34 AM on May 1, 2013


This happened to me once and I ended up as the meat in the middle of a CentiPad sandwich.
posted by Callicvol at 11:39 AM on May 1, 2013 [1 favorite]


I'm pretty sure that I signed away my firstborn child to play Half-Life.

Totally worth it.
posted by wolfdreams01 at 11:40 AM on May 1, 2013 [1 favorite]


In the US the crazy stuff -- giving up the right to criticize; conferring the right to change contract terms at will -- would probably be deemed unenforceable by a judge

This is very true. Provisions like this are put in the contract so when people read the contract and see those terms, they will think that they cannot sue. Or if the disgruntled person calls and asks, they will be referred to that section of the contract and told that they can't sue. That company is just trying to prevent people from suing in the first place.

It is like any number of meaningless disclaimers that you will see. At many grocery stores or shopping centers you will see signs that say, "Not liable for damage caused by shopping carts." Those signs have no meaning at all. You can't just put up a sign that says, "We are not liable for any damage caused by our negligence." That is not how the law works. If it did work that way, you can bet I would slap a bumper sticker on my car that says, "I am not liable for damage caused by my vehicle."

I worked at a laundromat that had a sign on the wall that said, "Not liable for damage caused by dryers." One of the dryers was set too hot and burned someone's clothes. I was there. The clothes were smoking. The owner told the customer that the sign on the wall relieved them of any responsibility. The customer never pursued it.

Sorry for the derail, but intentionally false clauses and notices that are meant to discourage people from pursuing their rights sort of piss me off.
posted by flarbuse at 11:41 AM on May 1, 2013 [25 favorites]


My contracts professor in law school said she never read contracts of adhesion like this. What's the point? You can get the service by agreeing to their terms or you can not get it. Very simple.
posted by Ironmouth at 11:50 AM on May 1, 2013 [1 favorite]


IANAL but I work extensively with lawyers and contracts, and it was my understanding that there is often a threshold for readibility, e.g. a certain type of clause has to literally be in at least 10pt. font, or something like that.
I'm sure this level of specificity isn't true across the board, but I believe there are circumstances in which the law does not look favorably on contracts that deliberately obfuscate. But again, I am not an expert and may be mistaken.

I find this troubling but, like many above, I suspect a lot of these would not be enforceable and/or are just there to dissuade users in the manner the flarbuse described.
posted by staccato signals of constant information at 11:50 AM on May 1, 2013


That's OK, because on my website I've published the agreement that people who serve me content on the web agree to. I know they've agreed to it, because it says right in there that they agree by serving me content. And just in case I've overlooked something, part of it says that it says something different whenever you're not looking at it.

No, I won't tell you the URL. Thank you for agreeing, as though you had any choice. Sucker.


Your "contract" lacks consideration and is unenforceable.
posted by Ironmouth at 11:52 AM on May 1, 2013 [2 favorites]


If you do try to read the EULA this may happen
posted by stuartmm at 12:02 PM on May 1, 2013


Man, I tell you what, mortgage companies get nervous if you read the contracts. I may have been the first closing that some of these people had been to where a customer actually read the contract and refused to sign until stuff was changed.

You might think that it means they would just tell me to get off their lawn, but they didn't. Terms that shouldn't have been in the contract were stricken, terms that should have been were put in, the contract was redrawn while I waited; which leads me to believe that companies just throw shit in the contract in the hopes that nobody will read it.

My husband laughs at me, because I read every contract I'm expected to agree to; and there's a lot of stuff where I've walked away from a purchase because of bad terms. But the concept of someone signing something like a mortgage or any other 6+ figure contract without reading/understanding/hiring your own legal guns/ blows my mind.

That said; the lawyers who write this nonsense should be beaten with sticks until honesty pops out.
posted by dejah420 at 12:06 PM on May 1, 2013 [11 favorites]


Thanks for pointing that out, Ironmouth. Now I offer the following consideration to those who accept the contract: On May 1, 3013 I will refrain from calling them a nasty name.
posted by jepler at 12:08 PM on May 1, 2013 [5 favorites]


I dunno, dejah420, what if there's none there to pop out?

There's honest lawyers, and then there's the legal weasels who make some of these EULAs and other contracts and rely on people to not read them, or who write it in such torturous language (Legal, which is a subset of English wherein words mean different things from conversational English), and enjoy it. Those kinds of lawyers, you could beat them with sticks until clear liquid leaks from their ears and you wouldn't find a smidge* of honesty in them. And I'm pretty sure that Legal exists specifically to make it more difficult for the normal person to read a contract, and also to keep other lawyers employed who otherwise would be, perhaps, excellent food-service technicians, purely for their translation services.


*smidge: SI measurement of honesty.
posted by mephron at 12:11 PM on May 1, 2013


I've often considered printing out an EULA, crossing off everything that seems crazy (IE: 70% of it) and then emailing the modified EULA to what ever contact they provide with a clause saying if they don't agree to the changes let me know and I'll stop using the product. Just to see what happens.
posted by Mitheral at 12:19 PM on May 1, 2013 [5 favorites]


"I am not liable for damage caused by my vehicle."

This would make a funny bumper sticker.
posted by So You're Saying These Are Pants? at 12:32 PM on May 1, 2013


Shitty EULAs and CFAA expansion have me unsubscribing from web sites that I no longer use, and refusing to sign up for anything non-essential which requires a login.

The cost of maintaining an inactive account on a random web site or internet service used to be essentially zero. Now it is slightly above zero.

This needs to be fixed.
posted by RobotVoodooPower at 12:40 PM on May 1, 2013


jedicus: Remember that the GPL is a software EULA, for example.

I'd dispute that. The GPL is more like the opposite of a EULA. A EULA is, as the acronym states, a license agreement. It specifies terms that you have to agree to in order to use the software legally. The GPL isn't a license agreement, it's just a license. You can exercise that license or not, but it's not conditional; when you install and use GPL software, you're not agreeing to anything at all. The only restrictions it puts into place are conditions on distributing copies, and even there, it's putting restrictions on a freedom you wouldn't have without the GPL.

There are installers that put the GPL into a clickthrough, but it doesn't really make a lot of sense. "Hey, here's some stuff you can do! You are allowed! Do you agree? Yes/No"
posted by baf at 12:53 PM on May 1, 2013 [4 favorites]


I, the undersigned, shall forfeit all rights, privileges, and licenses herein and herein contained, et cetera, et cetera... Fax mentis incendium gloria cultum, et cetera, et cetera... Memo bis punitor delicatum!

It's all there, black and white, clear as crystal! ... You lose! Good day, sir!
posted by usonian at 1:17 PM on May 1, 2013 [6 favorites]


The flip side is that you have thousands to millions of people all agreeing to the same EULA, though, which suggests at least a partial solution. If Adobe Bloatware XXVIII is a product that millions of people will potentially want to use, that doesn't necessarily mean that millions of people need to read the EULA all the way through; just get a handful of smart people to read it through and alert everyone else to any particularly onerous clauses. Maybe a EULA wiki?
posted by DevilsAdvocate at 1:36 PM on May 1, 2013 [1 favorite]


This doesn't apply to online/electronic agreements, but what happens if you mark up a contract with say, a cellphone provider and refuse to sign it unless they agree to the modifications? Can you pressure the hapless clerk/manager who is trying to make their quota into agreeing to your alterations? Would those alterations stand up in court if you pursued them?
posted by Hactar at 1:47 PM on May 1, 2013


Hactar, the problem is that the corporation really doesn't need your business that bad. If we all did it, maybe, but a general strike seems more likely than that.
posted by OverlappingElvis at 2:17 PM on May 1, 2013


but what happens if you mark up a contract with say, a cellphone provider and refuse to sign it unless they agree to the modifications

I do this, and I've never even had the clerk notice.
posted by the man of twists and turns at 2:28 PM on May 1, 2013 [1 favorite]


There's honest lawyers, and then there's the legal weasels who make some of these EULAs and other contracts and rely on people to not read them, or who write it in such torturous language (Legal, which is a subset of English wherein words mean different things from conversational English), and enjoy it.

No, there are only lawyers who are zealous advocates for their clients, some of whom are weasels who (ab)use their leverage over their customers to include extremely strong language in license agreements and terms of service. Any competent and ethical lawyer will tell a client that one of the disadvantages of such strong language in an EULA or terms of service is the bad PR and the risk that it will be found unenforceable. That language gets put in there at the client's behest or at least with the client's understanding. You could argue that the lawyer should withdraw from representation rather than draft a contract with such terms, but ultimate moral responsibility lies with the client, not the attorney.

when you install and use GPL software, you're not agreeing to anything at all. The only restrictions it puts into place are conditions on distributing copies, and even there, it's putting restrictions on a freedom you wouldn't have without the GPL.

No, the GPL does require agreement, even if it doesn't use that word. For example, the GPL grants the user the right to distribute verbatim copies of the source code, but accepting that right requires agreement with the GPL's terms (e.g. that the user supply a copy of the GPL with each copy, among other things). If you don't agree with those terms, then you don't get those rights. There are certain rights that the GPL grants that don't require acceptance of the license (e.g. simply using the software), but that doesn't make it not a EULA.

There are installers that put the GPL into a clickthrough, but it doesn't really make a lot of sense. "Hey, here's some stuff you can do! You are allowed! Do you agree? Yes/No"

Actually it makes a lot of sense, by the GPL's own terms. The GPL requires that modified GPL software "must carry prominent notices stating that it is released under this License" (emphasis added). A license.txt file and a note that comes up when you run the program with the --about flag or select Help->About aren't especially prominent. A clickthrough during installation, by contrast, is pretty prominent. It's guaranteed to be seen at least once and requires an affirmative step by the user to move past. Which are some of the same reasons why clickthrough EULAs have been held to be enforceable, actually.
posted by jedicus at 2:39 PM on May 1, 2013 [5 favorites]


Where is the line for what contracts can be unilaterally forced upon the user post-purchase as in the case of a EULA that only pops up after you've already bought the software? As a hypothetical, lets say I buy a desk from Ikea, and the instruction manual has a EULA that says that use of the desk constitutes agreement to the EULA, and has a clause that the desk cannot be used for commercial purposes or resold. Could Ikea really do this? If not, how is it different from EULAs that appear after you've already paid money? If so, it seems absurd that anyone can just foist any contract upon you post-purchase by printing it or displaying it.

As a real-life example, I recently received a piece of hardware from Kickstarter that includes such an instruction manual EULA that forbids commercial use, and the iRobot Creates used to (and might still) come with such an instruction manual EULA.
posted by Pyry at 3:35 PM on May 1, 2013 [1 favorite]


Pyry, you're talking essentially about a shrink-wrap contract. As with everything, it's not settled in stone, but odds are the company would be required to provide you with a way to return it at no cost.
posted by Lemurrhea at 6:28 AM on May 2, 2013


"Those kinds of lawyers, you could beat them with sticks until clear liquid leaks from their ears and you wouldn't find a smidge* of honesty in them."

This sounds like a premise begging for empirical testing.
posted by klangklangston at 9:12 PM on May 2, 2013 [2 favorites]


Pyry: Indeed. It flies in the face of common sense. You've already paid for your software at the point of sale. Now, before you can use it, the software purports that you also have to agree to this license. To return to what Ironmouth said about consideration in a different context, what consideration do you receive for your agreement to the license? Surely not the software itself, because you already have obtained the legal right to your copy of the software.

The most popular EULA-preserving response to this is that you only have the right to the physical copy you purchased; the consideration you receive is the right to make additional copies incidental to the use of the software (such as the ones created when copying the original to the hard drive, copying from the hard drive to system memory, copying from system memory to the CPU or display). Under this theory, any software that ships without a EULA is not legally usable, I suppose.
posted by jepler at 11:21 AM on May 3, 2013


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