Hello, Slate reader. By clicking on this article, you indicate that you accept and are bound by the following terms:
1) You will prepare the author (“Seth” or “me”) a home-cooked meal consisting of no fewer than 2,000 calories. You warrant that this food will be of reasonable deliciousness. 2) You acknowledge that Seth has obtained all necessary permissions to refer to you, in your presence, as a “chucklehead.” 3) Seth may modify these terms at any time, without notice. 4) Bam! These terms just got modified, chucklehead! Seth now requires immediate provision of a dessert.
Perhaps you think these terms unfair? Guess you shouldn’t have clicked. Now go get me a Linzer torte.
The above is of course an exaggeration. I would have accepted a cupcake in lieu of a Linzer torte. But you really are subject to all sorts of binding agreements as you make your way around the Web. Chances are you never read these agreements—one study says you’d need to take a month off work each year to have enough time to read all the privacy policies you encounter. And even if you did try to wade through the legalese, you could hardly be expected to understand it.
What exactly are you agreeing to when you browse around on the Internet? A South Park episode from a few years back posited that when you click “I agree” as you download iTunes, you are granting Apple the right to sew you into a human centipede.
Though this particular episode isn’t currently available, you can watch many of South Park’s greatest hits here, but—and I’m not joking—you’ll need to click “Agree & Continue” to indicate that you’ll honor South Park Studios’ terms of use.
End-user license agreements, known as EULAs, typically draw attention when some ridiculous clause comes to light. You agree to let one company spy on everything you do in your car. You grant another company the right to show up unannounced at your home, at any hour, to “inspect” and “audit” your premises.
But these are outliers. Most EULAs involve more garden-variety power plays. Helpfully, Pinterest—in an effort to make its user agreement intelligible to non-lawyer humans—has placed translated summaries labeled “More simply put” next to its thickets of legal text. So let’s take a look at what sorts of rights Pinterest asks us to cede.
Some seem reasonable: “[D]on’t post porn or spam or be a jerk to other Pinners.” Some we might be less thrilled about: “Copies of content shared with others may remain even after you delete the content from your account.”
To me, the most troubling clauses involve Pinterest’s liability, or lack thereof. Not coincidentally, these are the ones that get most simplified in the site’s folksy translations. For instance, there’s a series of terms that, as best I can tell, attempts to limit Pinterest’s aggregate liability to $100 per dispute; to prohibit all class-action suits and jury trials; and to allow Pinterest to determine legal jurisdiction. This gets boiled down to “We’re not liable for various things. If you think we are, let’s try to work it out like adults.” Also: “The Bay Area is beautiful this time of year. It doesn’t matter what time of year it is, that’s what’s so great! Anyway, you’ll have to sue us here.” Thanks, Pinterest.
Eric Goldman, co-director of the High Tech Law Institute at the Santa Clara University Law School, has drafted hundreds of online terms of service agreements. He says that he—“like most sane people”—doesn’t read everything he agrees to. (Want proof that no one else does, either? One company placed a clause deep in the text of its EULA offering $1,000 to the first person who noticed. It took five months and 3,000 “I agrees” before anybody claimed the prize.) But Goldman feels there’s no easy fix to this absurd situation.
The main purpose of all these agreements is for companies to shield themselves from legal action. They don’t want to accept the default law that’s been established by the government, so instead they claim additional safeguards against lawsuits. It would be impossible for companies to negotiate individualized contracts with every single one of the millions of people who browse their websites. Thus they create these blanket agreements.
Goldman applauds Pinterest’s effort to offer a simplified translation, to the extent that this translation helps people understand what they’re agreeing to. But as a lawyer, he wonders if this attempt at transparency puts the company at legal risk. “If there’s a gap between the bulletproof legal language and the more readable summary,” he says, “Pinterest might expose themselves. The summary might be less thorough than the legalese. And it’s implied that the user only needs to read the summary.”
OK, that’s enough fretting about the fate of a giant company. Let’s get back to your rights. Courts have been fairly clear that ticking an “I agree” box is sufficient to make terms binding. And even just scrolling through a site can in some cases mean that you’re subject to its policies. In fact—according to the fine attorneys who counsel Slate—you are at this very moment subject to Slate’s user agreement by mere virtue of the fact that you are “using the Services” of this website. Luckily, our terms are totally reasonable. As far as you know. You’ve never read them, right?
Were you aware that Slate does not warranty that we’ll provide you a “workmanlike effort”? Nor do we promise you “quiet enjoyment” of our product. I asked one of our lawyers what the heck these clauses mean. He told me they tend to be more applicable in the context of real estate contracts than website agreements. And in his defense, he didn’t draft our terms—they were a legacy from previous lawyers. “If I were starting from scratch with the agreement,” he conceded, “a lot of it would probably look different.” On the plus side, he said he wouldn’t bill Slate for the time I spent on the phone with him.
Don’t get down on yourself if you have no idea what you have and haven’t agreed to online. People have been ignoring fine print since long before there was a World Wide Web. “This is part of modernity, and it’s been around for 150 years,” argues Omri Ben-Shahar, a professor at the University of Chicago Law School and connoisseur of user agreements. (You can see him here with a 30-foot-long printout of iTunes’ terms of service.) “Ever since mass production and selling in large lots, there has been small print. When you sell to lots of people, you need standard-form contracts that are non-negotiable.” Nowadays, those contracts have become even longer, because there is near-infinite space to house them online. There’s no downside to throwing in one more clause, and then one more still, if there’s any chance that it might at some point protect the company. Obviously, there is nothing good for you, the consumer, hidden within all this fine print. If there were, it wouldn’t be hidden. It’d be blared across the top of the home page, in a huge font and in plain English, as a selling point.
But Goldman notes that consumers do get an indirect benefit from all these agreements. By protecting themselves from legal exposure, companies can better predict their risks, which in turn shaves their costs. That helps them provide their services more cheaply. Or in many cases—Facebook, Google, Twitter—for free.
In the end, Ben-Shahar thinks we shouldn’t worry too much about this stuff. “If you don’t like Google Maps’ terms,” he notes, “you don’t have to use Google Maps. But you probably decide, on balance, that you like the overall package they’re offering. It’s a free, luxury service. And they couldn’t provide this product for free if not for the terms they establish. You’d rather have a terrific product with lousy terms of use than a lousy product with terrific terms of use.” Anyway, he notes, in the absence of these terms you’d still be subject to the default law. “Do you know what the default law is? Do you read the case books?” he asks me. I do not. “So it’s no different than not reading the user agreement. You’re in the dark either way.”
He also thinks these EULAs get kept in check by the marketplace. Consumer-facing websites can’t get away with too much or people will stop using them, he says. Their brands will be damaged. People will vote with their feet.
Margaret Jane Radin, a professor at the University of Michigan Law School and the author of Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law, does not agree with that point of view. “There’s so much wrong with what Omri argues,” she says. “People have always injured brands by writing bad reviews. But these agreements take away legal remedies for consumers.” With these agreements, companies hope to eliminate any chance they’ll get sued. Often, as Pinterest’s do, terms of service will forbid class-action lawsuits, dictating that all disputes instead be settled by individual arbitration, and even decreeing that the company will get to choose the forum. “People never think about legal remedies until they need one,” says Radin.
Is there anything you can do the next time you’re asked to click “I agree”? You could decide not to download the software or use the service. You could raise awareness about egregious policies among fellow consumers, in hopes that you’ll shame a company into better behavior or start a stampede toward its competitors. You could lobby your local politicians to support arbitration fairness, clawing back some of the outrageous legal exemptions that companies have seized for themselves. You could also move to Europe, where consumers get more respect in these matters, and it’s easier to bring class-action suits.
But I’m guessing you’ll do none of those things. You’ll just click the box and use the product. And—chances are—you’ll quietly enjoy the effort that went into it, whether it’s workmanlike or not. Now, where’s that Linzer torte you promised me?
