Speaks for itself…
As a non-lawyer I’ve wondered about this… how much weight do courts give to EULAs where a user “agrees” to something that they obviously wouldn’t actually have read?
There’s no reasonable way you could expect millions of ordinary people to read columns of legal text before installing any software or accessing a web service. And, in today’s world, it’s also not reasonable to say they just shouldn’t install any software if they’re not willing to read and agree to all those (non-negotiable) terms. So do the courts care about “reasonable” from the point of view of ordinary people?
You raise a question that continues to prove thorny for many, including my students each year. Although it doesn’t take long for them to come around–steeped as they are in the primacy of contract law that is pounded into them by their first year studies–there are still public policy questions that persist. Studies show that less than .05% of consumers (that’s 2 in a thousand) ever bother to read the EULAs or TOSs. That is staggeringly low, but also no surprise to anyone. Even highly-successful contracts attorneys I know don’t bother and I don’t blame them. The problem, if you see it as such, is all in the incentives. Right now, we are awash in EULAs and they are invariably quite lengthy. Some I have encountered extend to over 20 pages in standard fonts. I’m pretty sure my mortgage was only a little bit longer than the Second Life EULA, and contained fewer attachments. It may sound like hyperbole for dramatic effect, but that level of complexity multiplied over the dozens of such contracts people encounter leads to a sort of contract blindness. And why not? It’s not as of reading it will change anything, or give you something you didn’t know before. You can’t negotiate. It’s take it or leave it. That’s one thing for apps and software you haven’t already committed to, but what about changes to apps you already have incorporated into your life. It’s pretty clear that Google can make whatever changes they want to their policies because I can’t live without their products without major investment of time and energy. The same goes for most people. It’s just not with their time to read it. It also has something to do with psychology: most people don’t expect something to go so wrong that they would need to know where to file a complaint or what happens to their data when they die. People just don’t think about that when it’s time to get the newest version of some app. Most of the time, it’s presented just before they’re about to log on or use the app and all they want to do is get on with it. We’ve seen some change to this recently, with Google and Facebook, for example, giving people advanced notice of changes and preparing handy tutorials about the changes to the agreement so people better understand their rights, so that’s some reason for optimism…
So, this is a fairly common rant, but it doesn’t quite answer your question. You ask whether courts care about the reasonableness of all these contracts. The short answer is “no,” but that’s being a bit glib. Really what they care about is whether the terms in the contracts are provided in a fair manner and that the terms aren’t overly burdensome. Things like requiring customers to fly to California and paying for half the costs for binding arbitration to settle disputes over programs that may have cost under $100 are likely to be found unfair. But as for expecting people to read their contracts before checking the box, courts absolutely don’t cut consumers much slack. That goes double for “free” apps and services. Whether a program is licensed or sold, designed or crowd-sourced, the lack of payments entitles the provider to change
Even as we speak, contracts grow in length because companies’ attorneys encounter new threats or liabilities that need to be accounted for. What’s unfortunate is thus reality that courts are controlled by judges and lawyers who are going to bow before the altar of contract law, but that doesn’t mean some juries might not sway toward less onerous requirements some day. I guess it may happen in the future, but not for while. That’s my take, FWIW.
Justin this’s a huge point you’re making here but it’s so right-under-our-noses most people’ll still go “So?”
I’m one of these people though who out of some weird nerdish compulsion periodically feel compelled to try and read these things just to see what they actually say and how they say it.
Which’s why I took a huge downer on Apple software like iTunes and Safari being on my pc because I found everything about their EULAs seemed designed to prevent comprehension.
For instance for a long time the versions I had seemed to be in some foreign language which might’ve been Lithuanian. Then finally I got a version in English but the type face was so cursive it might as well’ve been Martian while another version was so tiny it made my eyes water trying to read it but whenever I tried magnifying using software or even a real magnifier it still somehow failed to be readable.
In the end I just thought ta-ra! (Scouse for goodbye!) and uninstalled the lot of it (which also brought an end to problems to do with them telling me my own art and musical compositions couldn’t be accessed because I didn’t have copyright permission!
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