When I first encountered End User License Agreements (EULAs), I can honestly say I ignored them. After all, they were written in Legalese, a language I never learned. It was easy enough to click “I accept” and ignore it in the same way that I once ignored my father’s demand that I stop wearing a push-up bra.
Later I thought, “Wow, this bra is awfully revealing,” and “Maybe I should read this EULA, after all.”
It was a EULA for a videogame, and when I read the terms and conditions, I came across a clause that said I had to consent to be monitored. I said, “Wow, I totally don’t agree to this,” but I said it in Anglo-Saxon (a language I know all too well).
So I did what any self-respecting, intelligent citizen of the digital age would do: I tossed the game and—nah. I wanted to kill hostiles. I clicked on, “I accept.” But then I cogitated on the nature of EULAs.
EULAs serve the very useful purpose of protecting software makers against mass installation of a single product. Buy one copy of XYZ software, and you and you alone get to use it. You can’t install it on your buddy’s computer, and you can’t sell it off. It’s an important warning to potential pirates: Copy at your own risk. And the risk is telling it to the judge.
Sadly, that’s not all that EULAs do. Buried within that finely printed Legalese are conditions that most people would not agree to if we were talking about, say, a car. Some of the more WTF terms that we encounter daily:
- Some companies reserve the right to install spyware on your computer.
- Others absolve themselves of responsibility for damages to your computer, even if it knew about the possibility of damage.
- Others reserve the right to change the agreement at any time…without your knowledge or consent.
Now imagine buying a car and being asked to sign a binding document that said the car would report back to your wife if another woman sat in it, if your engine fell out you couldn’t sue, and it could, without warning, turn into a scooter.
But because EULAs are written for software, we do agree, every day.
The best, most coherent look at the rights we’re signing away every time we click on the “I accept” button was written by the Electronic Frontier Foundation (EFF). But that was written in 2005. Since then, lawyers have come up with entirely new ways to make me want to lock and load.
Here’s a look at some more recent issues revolving around EULAs that I can only describe as unfair to the consumer. And they need to be called out, so we know where to aim our loathing.
You can’t sue in a class action lawsuit.
If you want to read Sony’s terms and conditions, good luck with that. It’s long. Really long. Scanning the EULA took me over one and a half minutes to scroll through it from one end to another at a speed too fast to actually read. This is clearly a document designed to encourage you to not read it. This makes me cranky.
But if you do manage to read it, you’ll see more than the EULA—you’ll see red. When you sign the most recent Sony PlayStation Network EULA, you signing away your rights to sue them in a class-action suit in case their network happens to get hacked (again). And if you still feel sue-happy, you have to submit to binding arbitration.
Another gaming company, Electronic Arts, jumped on that anti-class-action-suit bandwagon for its Origin PC platform. It turns out that both companies were standing on the legal shoulders of AT&T, who managed to convince the Supreme Court that barring class-action suits weren’t “unconscionable” after all.
This is quite a big deal, as class-action lawsuits can have serious advantages for consumers over individual suits, particularly those who don’t want to sign up for thousands of dollars in legal costs over a $40 game. Class-action suits also have some serious muscle behind them. An individual ruling against a corporation is equivalent to a slap on the wrist; a class-action ruling can be equivalent to pulling back a thumb until the corporation says, “Ow! We promise not to do it again!”
And Sony and EA want to take these advantages away.
In a twist, you can actually hold on to your right to a class-action suit against Sony and EA…but only within 30 days of signing the agreement and only on paper. Sony wrote:
IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION AND CLASS ACTION WAIVER IN THIS SECTION 15, YOU MUST NOTIFY SNEI IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THIS AGREEMENT. YOUR WRITTEN NOTIFICATION MUST BE MAILED TO 6080 CENTER DRIVE, 10TH FLOOR, LOS ANGELES, CA 90045, ATTN: LEGAL DEPARTMENT/ARBITRATION AND MUST INCLUDE: (1) YOUR NAME, (2) YOUR ADDRESS, (3) YOUR PSN ACCOUNT NUMBER, IF YOU HAVE ONE, AND (4) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH ANY SONY ENTITY THROUGH ARBITRATION.
Yup, even though the only transactions you’ll ever have with these companies are digital, you need to physically mail them.
I wonder what’s to prevent Sony and EA from “accidentally” losing my letter.
Solution: This particular clause has a terrific solution. A group called GamersOptOuteases the pain of having to find a stamp by mailing Sony and EA for you. Thanks, guys!
Plus, whining works. EA received a multitude of complaints after it published the news that its upcoming massively multiplayer online game (MMO), The Old Republic, had to be played through the Origin client. They quickly backed away from their position. (Of course, who’s to say that they won’t change their terms after players have been hooked?)
As for AT&T, you could always dump it and sign up with its rivals.
You agree to give away your personal data until the End of Days.
Facebook is a controversial social network, to say the least. But it warranted the most controversy when it changed its terms and conditions in 2009.
“By posting user content to any part of the site, you automatically grant to the company (ie Facebook) an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, display, reformat, translate, excerpt (in whole or in part) and distribute such user content for any purpose, commercial, advertising or otherwise….
Irrevocable and perpetual licenses to use anything I place on Facebook? But what if I don’t want the world to know how many brews I drank at the Lambda Lambda Lambda party in 2008—especially now that I’m a presidential candidate in 2020? What if I post a short story that I later turn into a novel? Can Facebook claim it owns my writing?
But it’s not just Facebook. Google used a similar condition in its user agreement for its Chrome browser.
Solution: As with EA, user outrage on a mass scale can sometimes get the changes we want. Google immediately updated its terms of service so that users retain all of their rights. Facebook also relented and published a statement of Rights and Responsibilities that spelled out that that users “own the content they share through Facebook services.”
Of course, it took them “a couple of weeks” to do it.
Note: Only Mark Zuckerberg doesn’t believe in privacy. Make sure you keep on top of social networks’ privacy policies before they become (potentially legally binding) terms and conditions.
You don’t actually own what you buy.
Some companies explain in their EULAs that by giving them money, I’m not actually buying software/goods/services; I’m licensing it temporarily, for as long as they deign to give me their largesse.
Take the EULA concerning the Amazon Kindle.
Your rights under this Agreement will automatically terminate if you fail to comply with any term of this Agreement. In case of such termination, you must cease all use of the Software, and Amazon may immediately revoke your access to the Service or to Digital Content without refund of any fees.
So let me get this straight: If Amazon wants, it can take away my books. Oh wait, I can still use the Kindle. I just can’t use it, you know, to read. I could use it as a paperweight, if only that weren’t so post-ironic.
How is this legal? It might not be…but then again, it might. According to Wikipedia, “This has however never been tested in the courts and the outcome of any action by Amazon is by no means certain. The law is in a state of flux in jurisdictions around the world.”
It’s enough to make me clutch a hardback to my chest while muttering, “My precious…” but not enough to make me want to spend thousands and thousands of dollars to create that test-case lawsuit.
Solution: Being told that my book isn’t a book but a puff of illogic is fairly appalling, but there’s a very simple solution, at least in this case: I just won’t give Amazon my money.
Find another e-reader service. I’ve been using Fictionwise for years without problems. In fact, I can download my purchases to more than one account (computer, smartphone, and iPad) without the e-police knocking at my door.
It gets worse than that. Criminalization.
Hypothetically, let’s say I disregard the terms and conditions of a EULA, and I get sued for it. Worst-case scenario is I get fined millions of dollars. But that’s too soft for Facebook. if it were up to the social network, I could go to jail: Facebook is trying to turn a civil crime into a criminal one.
Facebook. You again.
It started when Power Ventures began to mechanically aggregate users’ social network data, which is strictly a no-no in Facebook’s EULA. Facebook response is a legal escalation akin to Rome’s salting of Carthage.
Consider the implications. Let’s say I violated another one of Facebook’s conditions and used a fake name. Now I could be doing five to ten just for calling myself “Princess Slay-a.”
The solution: Pray to Themis, goddess of justice, that Power Ventures gets a fair judge.
You get one copy, one copy only.
Check out this common condition. (Google it, and you’ll see this and variations of this in small companies, all the way up to Microsoft and Adobe. This one happens to come from Adobe.)
“You may make one backup copy of the Software, provided your backup copy is not installed or used other than for archival purposes. You may not transfer the rights of a backup copy unless you transfer all rights in the Software….”
Do you use something like Time Machine (on a Mac), or backup software, on a PC? Did you let it back up your applications too? Did you destroy the original installation DVDsbefore you did that? Uh-oh. You’ve just made more than one backup copy. Bad you.
Actually, the last time I migrated to a new Macbook, I used Apple’s Migration Assistant (there’s a similar feature for Windows PCs). Come to think of it, that technically violated this condition for all of the software I had installed at the time. Oops.
So what we can do about this EULA business?
I see four potential solutions to this EULA problem:
1. Ask for government regulation of EULAs. Hahahaha! I’m laughing myself silly over that one. Any mention of government “interference” in business could bring a swarm of Libertarians down on the head of any politician who would dare suggest it.
2. We could also refuse to sign a EULA. I could stand up for my rights by choosing to avoid most of what the 21st century has to offer. Admittedly, that’s going to last about as long as I can ignore the siren call of the upcoming Uncharted 3. (It’s not very long.)
3. We could encourage—loudly—the “Fair End User License Agreement,” created by the late journalist Ed Foster. (Samples can be found at BlankScream and Backyard EOS.)
This FEULA is about as refreshing a legal document as you’re ever likely to read. In exchange for installation of the software on one computer only, the company that uses this particular EULA will not sell your information or insert spyware. It gives you permission to reverse engineer the software and to even use it in a classroom. And in case of legal emergency, this FEULA is governed by the laws of the state in which you reside. If you don’t agree to these conditions, you can uninstall the product and receive a full refund.
It’s completely fair. Best of all, it lacks the arrogance and pretense of a standard EULA that made me write this article in the first place.
4. If all else fails, don’t agree to that EULA. Get your cat to do it for you.