6 ms·

Given that nobody reads these things anyway, how enforceable are they? People just click 'Accept' and continue doing whatever they want.

stickydink 9y ago
Very enforceable. You clicked accept, you accepted. If you didn't read it, that's on you. According to the American Bar Association's wording on "Best Practices for Ensuring Enforceability" [0] > There is a check-box that users must click adjacent to an affirmation similar to, “By clicking on the box, you are indicating that you have read and agree to the Terms of Use”; > The webpage is designed so that if the user does not check the box manifesting assent to the terms, the user cannot proceed in the transaction; > In addition to a check-box that users must click, the terms of use are available either in a nearby scrolling text box or a nearby hyperlink; > Any hyperlink of the terms is obvious, e.g., “Terms of Use” is underlined and has decent size lettering and visible coloring (not small lettering and not obfuscatory coloring); > Any hyperlink of the terms has a central or obvious location on the webpage, e.g., the hyperlink is directly below the “I Agree” button (not relegated to the bottom of the webpage, which would require the user to scroll down to a submerged portion of the webpage); > Any hyperlink of the terms immediately displays the terms (instead of requiring the user to click on a series of hyperlinks to view the terms); > The terms of use are evident in every webpage on the website (rather than visible on only one webpage), in addition to requiring users to attest that they have read the terms of use; > The terms are in readable font (at least 12 point); and > The agreement contains all requisite elements of an enforceable contract (e.g., consideration, sufficiently definite material terms, etc.).58 [0] https://www.americanbar.org/publications/communications_lawyer/2015/january/click_here.html https://www.americanbar.org/publications/communications_lawy...
- brndnmtthws 9y ago
  Seems absurd to me. Companies could claim they put whatever they want in that text and the burden of proof would lie with the end user.
  - Spooky23 9y ago
    Absurd but very common. It is important to capture terms when you sign up for things commercially and fight/negotiate terms that allow changes without notification. I’ve definately run into situations where vendors decide to change the rules after the fact, even with things like shrinkwrap desktop software. If you cannot negotiate with the counter party or it’s a goliath like Microsoft/Google/etc who wont negotiate with you, make a practice of downloading terms every quarter as they change.
  - vijayr 9y ago
    It is beyond absurd. It is a lose-lose situation for end users - if we read each line of every EULA, thats all we would be doing all day. If we don't, then we accept very unfriendly terms. Here is a funny example: https://www.geek.com/games/gamestation-eula-collects-7500-souls-from-unsuspecting-customers-1194091/ https://www.geek.com/games/gamestation-eula-collects-7500-so...
  - sigstoat 9y ago
    > Seems absurd to me. i'm really interested; what do you think the alternative is? would you be happier if you had to mail in a signed copy of the contract?
    - wfo 9y ago
      You are very correct, the fundamental problem here is not that people don't read the EULA, it is that the world "agree" is not meaningful in this context, there is no equitable power relationship between you and the company you are "agreeing" with, they can insert any demand they wish and you have no ability to negotiate or power in the discussion. You should not have to read the EULAs, because companies should not be allowed to require that you waive your fundamental rights like this as a precondition of using their service. If you have a right to sue but every company can demand you waive it before you interact with them, you actually have no right at all. If mandatory arbitration is allowed, the right to sue does not exist. You cannot have one but not the other.
      - 9y ago
- detaro 9y ago
  please don't use code formatting for quotes, use > this style instead (surround the text with asterixes for italics)
  - LeifCarrotson 9y ago
    Reformatted for mobile: > There is a check-box that users must click adjacent to an affirmation similar to, “By clicking on the box, you are indicating that you have read and agree to the Terms of Use”; > The webpage is designed so that if the user does not check the box manifesting assent to the terms, the user cannot proceed in the transaction; > In addition to a check-box that users must click, the terms of use are available either in a nearby scrolling text box or a nearby hyperlink; > Any hyperlink of the terms is obvious, e.g., “Terms of Use” is underlined and has decent size lettering and visible coloring (not small lettering and not obfuscatory coloring); > Any hyperlink of the terms has a central or obvious location on the webpage, e.g., the hyperlink is directly below the “I Agree” button (not relegated to the bottom of the webpage, which would require the user to scroll down to a submerged portion of the webpage); > Any hyperlink of the terms immediately displays the terms (instead of requiring the user to click on a series of hyperlinks to view the terms); > The terms of use are evident in every webpage on the website (rather than visible on only one webpage), in addition to requiring users to attest that they have read the terms of use; > The terms are in readable font (at least 12 point); and > The agreement contains all requisite elements of an enforceable contract (e.g., consideration, sufficiently definite material terms, etc.).58
- Chaebixi 9y ago
  Haven't the courts put extra limits on the terms that are enforceable in click-through EULAs? E.g. a court would strike a click-through term where you "contractually agreed" to pledge Facebook all your current and future income in exchange for the ability to post photos of your cat.
- jgowdy 9y ago
  Which is funny because in the past and in other legal areas, a contract requires a meeting of the minds, requires that everyone have adequate representation available, etc. Yet with click through contracts you have none of that. You don’t even have any sort of validated identification of the party that supposedly “signed” the “contract.” You have lopsided terms that do nothing to create equity between parties or indicate that informed negotiation took place. It’s just one party dictating terms to another party, with the ability to rewrite those terms on a whim with some petty opt-out period. EULA / TOS click wrap and shrink wrap licenses make a mockery of contract law out of convenience, transferring effectively what was supposed to be a reasonable agreement between two identified and informed parties and making it a completely one sided agreement dictated to one party, which nobody has actually identified until a claim arises. The alternative is to not have license agreements. License agreements just end up including terms that companies wish they could change about the law but can’t. So instead of having to get politicians to ban reverse engineering, they just include it in their license. Instead of having to get policiticans to ban or limit class action lawsuits, they just force you out of the courts.
pktgen 9y ago
Very enforceable, thanks to the GOP-stacked Supreme Court. See AT&T Mobility v. Concepcion (https://www.supremecourt.gov/opinions/10pdf/09-893.pdf https://www.supremecourt.gov/opinions/10pdf/09-893.pdf) and Amex v. Italian Colors (https://www.supremecourt.gov/opinions/12pdf/12-133_19m1.pdf https://www.supremecourt.gov/opinions/12pdf/12-133_19m1.pdf).
TillE 9y ago
It's a developer agreement rather than an EULA. Unless you're just a hobbyist messing around, you should definitely be reading those.

stickydink 9y ago

Very enforceable. You clicked accept, you accepted. If you didn't read it, that's on you. According to the American Bar Association's wording on "Best Practices for Ensuring Enforceability" [0] > There is a check-box that users must click adjacent to an affirmation similar to, “By clicking on the box, you are indicating that you have read and agree to the Terms of Use”; > The webpage is designed so that if the user does not check the box manifesting assent to the terms, the user cannot proceed in the transaction; > In addition to a check-box that users must click, the terms of use are available either in a nearby scrolling text box or a nearby hyperlink; > Any hyperlink of the terms is obvious, e.g., “Terms of Use” is underlined and has decent size lettering and visible coloring (not small lettering and not obfuscatory coloring); > Any hyperlink of the terms has a central or obvious location on the webpage, e.g., the hyperlink is directly below the “I Agree” button (not relegated to the bottom of the webpage, which would require the user to scroll down to a submerged portion of the webpage); > Any hyperlink of the terms immediately displays the terms (instead of requiring the user to click on a series of hyperlinks to view the terms); > The terms of use are evident in every webpage on the website (rather than visible on only one webpage), in addition to requiring users to attest that they have read the terms of use; > The terms are in readable font (at least 12 point); and > The agreement contains all requisite elements of an enforceable contract (e.g., consideration, sufficiently definite material terms, etc.).58 [0] https://www.americanbar.org/publications/communications_lawyer/2015/january/click_here.html https://www.americanbar.org/publications/communications_lawy...

brndnmtthws 9y ago
Seems absurd to me. Companies could claim they put whatever they want in that text and the burden of proof would lie with the end user.
- Spooky23 9y ago
  Absurd but very common. It is important to capture terms when you sign up for things commercially and fight/negotiate terms that allow changes without notification. I’ve definately run into situations where vendors decide to change the rules after the fact, even with things like shrinkwrap desktop software. If you cannot negotiate with the counter party or it’s a goliath like Microsoft/Google/etc who wont negotiate with you, make a practice of downloading terms every quarter as they change.
- vijayr 9y ago
  It is beyond absurd. It is a lose-lose situation for end users - if we read each line of every EULA, thats all we would be doing all day. If we don't, then we accept very unfriendly terms. Here is a funny example: https://www.geek.com/games/gamestation-eula-collects-7500-souls-from-unsuspecting-customers-1194091/ https://www.geek.com/games/gamestation-eula-collects-7500-so...
- sigstoat 9y ago
  > Seems absurd to me. i'm really interested; what do you think the alternative is? would you be happier if you had to mail in a signed copy of the contract?
  - wfo 9y ago
    You are very correct, the fundamental problem here is not that people don't read the EULA, it is that the world "agree" is not meaningful in this context, there is no equitable power relationship between you and the company you are "agreeing" with, they can insert any demand they wish and you have no ability to negotiate or power in the discussion. You should not have to read the EULAs, because companies should not be allowed to require that you waive your fundamental rights like this as a precondition of using their service. If you have a right to sue but every company can demand you waive it before you interact with them, you actually have no right at all. If mandatory arbitration is allowed, the right to sue does not exist. You cannot have one but not the other.
    - 9y ago
detaro 9y ago
please don't use code formatting for quotes, use > this style instead (surround the text with asterixes for italics)
- LeifCarrotson 9y ago
  Reformatted for mobile: > There is a check-box that users must click adjacent to an affirmation similar to, “By clicking on the box, you are indicating that you have read and agree to the Terms of Use”; > The webpage is designed so that if the user does not check the box manifesting assent to the terms, the user cannot proceed in the transaction; > In addition to a check-box that users must click, the terms of use are available either in a nearby scrolling text box or a nearby hyperlink; > Any hyperlink of the terms is obvious, e.g., “Terms of Use” is underlined and has decent size lettering and visible coloring (not small lettering and not obfuscatory coloring); > Any hyperlink of the terms has a central or obvious location on the webpage, e.g., the hyperlink is directly below the “I Agree” button (not relegated to the bottom of the webpage, which would require the user to scroll down to a submerged portion of the webpage); > Any hyperlink of the terms immediately displays the terms (instead of requiring the user to click on a series of hyperlinks to view the terms); > The terms of use are evident in every webpage on the website (rather than visible on only one webpage), in addition to requiring users to attest that they have read the terms of use; > The terms are in readable font (at least 12 point); and > The agreement contains all requisite elements of an enforceable contract (e.g., consideration, sufficiently definite material terms, etc.).58
Chaebixi 9y ago
Haven't the courts put extra limits on the terms that are enforceable in click-through EULAs? E.g. a court would strike a click-through term where you "contractually agreed" to pledge Facebook all your current and future income in exchange for the ability to post photos of your cat.
jgowdy 9y ago
Which is funny because in the past and in other legal areas, a contract requires a meeting of the minds, requires that everyone have adequate representation available, etc. Yet with click through contracts you have none of that. You don’t even have any sort of validated identification of the party that supposedly “signed” the “contract.” You have lopsided terms that do nothing to create equity between parties or indicate that informed negotiation took place. It’s just one party dictating terms to another party, with the ability to rewrite those terms on a whim with some petty opt-out period. EULA / TOS click wrap and shrink wrap licenses make a mockery of contract law out of convenience, transferring effectively what was supposed to be a reasonable agreement between two identified and informed parties and making it a completely one sided agreement dictated to one party, which nobody has actually identified until a claim arises. The alternative is to not have license agreements. License agreements just end up including terms that companies wish they could change about the law but can’t. So instead of having to get politicians to ban reverse engineering, they just include it in their license. Instead of having to get policiticans to ban or limit class action lawsuits, they just force you out of the courts.

pktgen 9y ago

Very enforceable, thanks to the GOP-stacked Supreme Court. See AT&T Mobility v. Concepcion (https://www.supremecourt.gov/opinions/10pdf/09-893.pdf https://www.supremecourt.gov/opinions/10pdf/09-893.pdf) and Amex v. Italian Colors (https://www.supremecourt.gov/opinions/12pdf/12-133_19m1.pdf https://www.supremecourt.gov/opinions/12pdf/12-133_19m1.pdf).

TillE 9y ago

It's a developer agreement rather than an EULA. Unless you're just a hobbyist messing around, you should definitely be reading those.