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You know the dark pattern of presenting a license agreement over and over until it's accepted? I predict one day someone will make the argument in court that th

You know the dark pattern of presenting a license agreement over and over until it's accepted? I predict one day someone will make the argument in court that they always declined the EULA (perhaps the one in their car) hundreds of times, but one day accidentally brushed "accept" with their finger, and that doesn't constitute legal acceptance, especially since they've demonstrated an effort to decline the EULA, but because of dark patterns, they never can permanently reject the license.

Judgmentality 5y ago
Fun fact - if you buy the car new, you may have the "option" of being presented with these choices before purchase. And you can actually refuse! The dealer will be confused as hell, but they are hell-bent on selling a new car, and will actually void it if possible. I know because I've done it. You don't want the weird spyware (OnStar, Carnet, etcetera)? After agreeing to buy the car, refuse to accept the terms (they legally require your signature for this), and they'll find a way to get around it. If they refuse then go buy a different car, because fuck those guys. Obviously this will vary by manufacturer and feature, and it's getting harder as time goes on to remove this shit from your vehicle.
- at-fates-hands 5y ago
  I thought I remember seeing some article on dashboard design and how distracting everything is now to driver. I thought I saw a quip in the article about how Honda was going to put out several 2021-2022 models that went back to some kind of really stripped down dashboard?
duped 5y ago
If I'm the dark pattern developer I'm not logging when the EULA is accepted or how many times they declined it.
- Buttons840 5y ago
  You mean you'll only log that it has been accepted and nothing more? I guess it becomes their word against... well, nothing, you don't know what they did or didn't do. For those who care enough to reject EULAs, they should take a few videos of rejecting the license and hopefully that would be enough to shift the onus to the manufacturer, who, as you said, has next to nothing.
- brewdad 5y ago
  I should think that owning a car for more than a few weeks without accepting the EULA could serve as reasonable "proof" that you had no intention of accepting it regardless of what is logged. Especially if the EULA is presented at every startup.
  - duped 5y ago
    Prove that you didn't accept the EULA when you drove it off the lot, if the system was never designed to log when the acceptance was made.
  - MereInterest 5y ago
    > It was intended that when Newspeak had been adopted once and for all and Oldspeak forgotten, a heretical thought -- that is, a thought diverging from the principles of Ingsoc -- should be literally unthinkable, at least so far as thought is dependent on words. Its vocabulary was so constructed as to give exact and often very subtle expression to every meaning that a Party member could properly wish to express, while excluding all other meanings and also the possibility of arriving at them by indirect methods. This was done ... chiefly by eliminating undesirable words and by stripping such words as remained of unorthodox meanings, and so far as possible of all secondary meanings whatever. I think consent dialogs are one of the closest things to Newspeak that exist. In any spoken language, new words can be coined to express a desired meaning. In consent dialogs, there is no longer "Accept" and "Decline", instead there is "Accept" and "Ask me later". When presented with an upsell, the choices are not "Yes" and "No", but "Yes, sign me up!" and "No, I don't want to save money."
    - anoncake 5y ago
      "No thanks" is bad enough when I mean "fuck off".
- JumpCrisscross 5y ago
  >If I'm the dark pattern developer I'm not logging when the EULA is accepted or how many times they declined it This cuts both ways. If the user can show one case of their rejecting the EULA without it being logged, they can then make the claim--correctly or not--that they repeatedly rejected it. If the car refuses to work without the EULA being accepted or rejected, proof of its movement would be sufficient to show repeated rejection. More pointedly, willfully hiding information like this could backfire massively with the courts or law enforcement.
  - duped 5y ago
    There is hiding information and not collecting it to begin with. void handleEula() { auto eulaAccepted = readEulaAcceptedFile(); if (!eulaAccepted) eulaAccepted = promptForEulaAcceptance(); writeEulaFile(eulaAccepted); } This function reads a file from disk and writes back to it every time. If filesystem write audits aren't enabled there is no way to determine if the most recent write of "true" was the only write. > If the car refuses to work without the EULA being accepted or rejected, proof of its movement would be sufficient to show repeated rejection. If the car refuses to work without the EULA being accepted then it wouldn't move. If some functionality was enabled or disabled by accepting the EULA then you would have to show that the functionality was never enabled based on secondhand sources... which would be difficult. Proving something didn't happen is infinitely more difficult than proving something did. Many systems are not designed to handle that level of introspection. All I'm saying is that the cute legal theory of "I rejected this N times therefore that one time I accepted it is invalid" falls apart for me when I consider that the user would have to prove they never did something, except that one time. Good luck.
    - ClumsyPilot 5y ago
      Judges are not idiots, and there is an "obligation to observe reasonable commercial standards of fair dealing". Practices like this increase likelihood that the judge rules the entire agreement null and void for the entire userbase.
    - IncRnd 5y ago
- _jal 5y ago
  Lawyers tend to love it when their opponents think they've found a cute legal hack.
  - Judgmentality 5y ago
    IANAL, but I'm curious if you are. In my experience, lawyers tend to get a lot done by intimidation. Remember all those ridiculous lawsuits from the RIAA over downloading illegal music? Well, it turns out when people actually took them to court they won every time. But people settled out of fear. Sure, if the lawyers are actually trying to do things legally first and adhering to the letter of the law, I'm sure they're happy to have their efforts challenged. But I have never, ever, in my life encountered a lawyer who worked this way (and I have lawyers in my family, I've been to court, I've personally hired several, blah blah blah). I am not saying they don't know the law, but they use their greater knowledge of the law to their advantage. Their goal isn't transparency, it's submission.
    - kiba 5y ago
      Actually people lost. But it doesn't matter anyway because the RIAA can't collect it, and the debt was basically the lowest priority.
      - Judgmentality 5y ago
        Do you have a link? I'm trying to dig up stories on it, but it's so stale. As far as I can tell almost everybody settled, and the few that fought in court eventually won. https://www.wired.com/2010/05/riaa-bump/ https://www.wired.com/2010/05/riaa-bump/
        mentalpiracy 5y ago
        This woman did. https://www.wired.com/2007/10/riaa-jury-finds/ https://www.wired.com/2007/10/riaa-jury-finds/
    - _jal 5y ago
- majormajor 5y ago
  You probably wouldn't need a log of declines if you had the car for a year and the acceptance was recorded only on day 300. Especially since there will be miles on the car showing that it was driven before day 300...
moron4hire 5y ago
Uhhh, you don't click through a EULA in the car. You do it when you sign the purchase agreement. Do you not read those things?
- joshribakoff 5y ago
  Activating certain features in Tesla does in fact prompt a EULA (enabling autopilot, full self driving, and ludicrous mode all involve disclaimers which are legally EULA agreements. These pop up after you already bought the car, when you activate them under the settings menu for the first time)
  - ajross 5y ago
    Those are liability releases, not agreements over software licensing. In fact those features actually are sold legally as "parts" on the car you bought, there's no licensing scheme from Tesla yet. Though there is noise being made about offering a monthly license for FSD given that it's at $10k now and lots of people who would want to try it are priced out.
    - joshribakoff 5y ago
      The definition of a EULA agreement is a legal contract that is executed by clicking a button. They often contain liability releases. What software license doesn’t? > A EULA specifies in detail the rights and restrictions which apply to the use of the software. > Many EULAs assert extensive liability limitations. Most commonly, an EULA will attempt to hold harmless the software licensor in the event that the software causes damage to the user's computer or data, but some software also proposes limitations on whether the licensor can be held liable for damage that arises through improper use of the software (for example, incorrectly using tax preparation software and incurring penalties as a result). Quoting from https://en.wikipedia.org/wiki/End-user_license_agreement https://en.wikipedia.org/wiki/End-user_license_agreement
      - ajross 5y ago
        Pedantry about definitions aside, the Tesla agreement you are clicking is not a software license. Go read it.
worik 5y ago
I thought (IANAL) that EULA with screeds of text and a "Accept" button have been ruled invalid (as in not enforceable in a court) many ties in most jurisdictions. Am I wrong?
- kcolford 5y ago
  This is certainly true in some jurisdictions (including Canada where my home country bias lies), but I don't think it's generally true everywhere in the US.

Judgmentality 5y ago

Fun fact - if you buy the car new, you may have the "option" of being presented with these choices before purchase. And you can actually refuse! The dealer will be confused as hell, but they are hell-bent on selling a new car, and will actually void it if possible. I know because I've done it. You don't want the weird spyware (OnStar, Carnet, etcetera)? After agreeing to buy the car, refuse to accept the terms (they legally require your signature for this), and they'll find a way to get around it. If they refuse then go buy a different car, because fuck those guys. Obviously this will vary by manufacturer and feature, and it's getting harder as time goes on to remove this shit from your vehicle.

at-fates-hands 5y ago
I thought I remember seeing some article on dashboard design and how distracting everything is now to driver. I thought I saw a quip in the article about how Honda was going to put out several 2021-2022 models that went back to some kind of really stripped down dashboard?

duped 5y ago

If I'm the dark pattern developer I'm not logging when the EULA is accepted or how many times they declined it.

Buttons840 5y ago
You mean you'll only log that it has been accepted and nothing more? I guess it becomes their word against... well, nothing, you don't know what they did or didn't do. For those who care enough to reject EULAs, they should take a few videos of rejecting the license and hopefully that would be enough to shift the onus to the manufacturer, who, as you said, has next to nothing.
brewdad 5y ago
I should think that owning a car for more than a few weeks without accepting the EULA could serve as reasonable "proof" that you had no intention of accepting it regardless of what is logged. Especially if the EULA is presented at every startup.
- duped 5y ago
  Prove that you didn't accept the EULA when you drove it off the lot, if the system was never designed to log when the acceptance was made.
- MereInterest 5y ago
  > It was intended that when Newspeak had been adopted once and for all and Oldspeak forgotten, a heretical thought -- that is, a thought diverging from the principles of Ingsoc -- should be literally unthinkable, at least so far as thought is dependent on words. Its vocabulary was so constructed as to give exact and often very subtle expression to every meaning that a Party member could properly wish to express, while excluding all other meanings and also the possibility of arriving at them by indirect methods. This was done ... chiefly by eliminating undesirable words and by stripping such words as remained of unorthodox meanings, and so far as possible of all secondary meanings whatever. I think consent dialogs are one of the closest things to Newspeak that exist. In any spoken language, new words can be coined to express a desired meaning. In consent dialogs, there is no longer "Accept" and "Decline", instead there is "Accept" and "Ask me later". When presented with an upsell, the choices are not "Yes" and "No", but "Yes, sign me up!" and "No, I don't want to save money."
  - anoncake 5y ago
    "No thanks" is bad enough when I mean "fuck off".
JumpCrisscross 5y ago
>If I'm the dark pattern developer I'm not logging when the EULA is accepted or how many times they declined it This cuts both ways. If the user can show one case of their rejecting the EULA without it being logged, they can then make the claim--correctly or not--that they repeatedly rejected it. If the car refuses to work without the EULA being accepted or rejected, proof of its movement would be sufficient to show repeated rejection. More pointedly, willfully hiding information like this could backfire massively with the courts or law enforcement.
- duped 5y ago
  There is hiding information and not collecting it to begin with. void handleEula() { auto eulaAccepted = readEulaAcceptedFile(); if (!eulaAccepted) eulaAccepted = promptForEulaAcceptance(); writeEulaFile(eulaAccepted); } This function reads a file from disk and writes back to it every time. If filesystem write audits aren't enabled there is no way to determine if the most recent write of "true" was the only write. > If the car refuses to work without the EULA being accepted or rejected, proof of its movement would be sufficient to show repeated rejection. If the car refuses to work without the EULA being accepted then it wouldn't move. If some functionality was enabled or disabled by accepting the EULA then you would have to show that the functionality was never enabled based on secondhand sources... which would be difficult. Proving something didn't happen is infinitely more difficult than proving something did. Many systems are not designed to handle that level of introspection. All I'm saying is that the cute legal theory of "I rejected this N times therefore that one time I accepted it is invalid" falls apart for me when I consider that the user would have to prove they never did something, except that one time. Good luck.
  - ClumsyPilot 5y ago
    Judges are not idiots, and there is an "obligation to observe reasonable commercial standards of fair dealing". Practices like this increase likelihood that the judge rules the entire agreement null and void for the entire userbase.
  - IncRnd 5y ago
_jal 5y ago
Lawyers tend to love it when their opponents think they've found a cute legal hack.
- Judgmentality 5y ago
  IANAL, but I'm curious if you are. In my experience, lawyers tend to get a lot done by intimidation. Remember all those ridiculous lawsuits from the RIAA over downloading illegal music? Well, it turns out when people actually took them to court they won every time. But people settled out of fear. Sure, if the lawyers are actually trying to do things legally first and adhering to the letter of the law, I'm sure they're happy to have their efforts challenged. But I have never, ever, in my life encountered a lawyer who worked this way (and I have lawyers in my family, I've been to court, I've personally hired several, blah blah blah). I am not saying they don't know the law, but they use their greater knowledge of the law to their advantage. Their goal isn't transparency, it's submission.
  - kiba 5y ago
    Actually people lost. But it doesn't matter anyway because the RIAA can't collect it, and the debt was basically the lowest priority.
    - Judgmentality 5y ago
      Do you have a link? I'm trying to dig up stories on it, but it's so stale. As far as I can tell almost everybody settled, and the few that fought in court eventually won. https://www.wired.com/2010/05/riaa-bump/ https://www.wired.com/2010/05/riaa-bump/
      - mentalpiracy 5y ago
        This woman did. https://www.wired.com/2007/10/riaa-jury-finds/ https://www.wired.com/2007/10/riaa-jury-finds/
  - _jal 5y ago
majormajor 5y ago
You probably wouldn't need a log of declines if you had the car for a year and the acceptance was recorded only on day 300. Especially since there will be miles on the car showing that it was driven before day 300...

moron4hire 5y ago

Uhhh, you don't click through a EULA in the car. You do it when you sign the purchase agreement. Do you not read those things?

joshribakoff 5y ago
Activating certain features in Tesla does in fact prompt a EULA (enabling autopilot, full self driving, and ludicrous mode all involve disclaimers which are legally EULA agreements. These pop up after you already bought the car, when you activate them under the settings menu for the first time)
- ajross 5y ago
  Those are liability releases, not agreements over software licensing. In fact those features actually are sold legally as "parts" on the car you bought, there's no licensing scheme from Tesla yet. Though there is noise being made about offering a monthly license for FSD given that it's at $10k now and lots of people who would want to try it are priced out.
  - joshribakoff 5y ago
    The definition of a EULA agreement is a legal contract that is executed by clicking a button. They often contain liability releases. What software license doesn’t? > A EULA specifies in detail the rights and restrictions which apply to the use of the software. > Many EULAs assert extensive liability limitations. Most commonly, an EULA will attempt to hold harmless the software licensor in the event that the software causes damage to the user's computer or data, but some software also proposes limitations on whether the licensor can be held liable for damage that arises through improper use of the software (for example, incorrectly using tax preparation software and incurring penalties as a result). Quoting from https://en.wikipedia.org/wiki/End-user_license_agreement https://en.wikipedia.org/wiki/End-user_license_agreement
    - ajross 5y ago
      Pedantry about definitions aside, the Tesla agreement you are clicking is not a software license. Go read it.

worik 5y ago

I thought (IANAL) that EULA with screeds of text and a "Accept" button have been ruled invalid (as in not enforceable in a court) many ties in most jurisdictions. Am I wrong?

kcolford 5y ago
This is certainly true in some jurisdictions (including Canada where my home country bias lies), but I don't think it's generally true everywhere in the US.