You just clicked "I AGREE" to buy that item online. Quick - what did you just agree to?
Don't know? Doesn't matter - you're bound by the terms.
For illustration, let's look at the most egregious clickwrap term yet found. When you download software from Alchemy Mindworks, you agree to the following:
... if a user fails to register software downloaded through their web pages “a leather-winged demon of the night will tear itself, shrieking blood and fury, from the endless caverns of the nether world, hurl itself into the darkness with a thirst for blood on its slavering fangs and search the very threads of time for the throbbing of your heartbeat."
You may not have yet agreed to terms quite this bad - but who really knows? You didn't actually read any of them, did you?
These days, pretty much everyone will click "I AGREE" for some purchases, and in almost all cases, that causes us no problem. Oddly, that might be the most insidious issue of all.
We are being trained to agree to the terms in order to get the things we want, presaging the day when every purchase will require us to agree to terms we have not read - terms which may grow progressively more egregious over time, creating a net of obligation that could limit our freedom of action and expression far more than any of our country's laws ever have.
More glorious detail is below the orange object which must not be named.
First, let's agree (ahem) that we never read this stuff, as illustrated by the page below from Huffington Post UK, which spoofed an End User License Agreement (EULA) from Apple.
And how might you find yourself screwed when you click I AGREE? Let us count the ways.
If they cause you harm, they owe you little or nothing
Let's say a vendor spills your personal information. If they have a "well formed" clickthrough limiting their liability, you're gong to be out of luck. Check out this article in Forbes describing how Zappos, the poor things, ended up with liability for a security breach of private info from 24 million customers - not because of the damage they caused, but because they had done a poor job forming their user agreement. Being Forbes, there is not even a hint of discussion that Zappos might just deserve to incur some liability. Nope - just advice for how to make a better clickthrough so a company can get off scot-free.
To the rulers who write the rules, all that matters is the terms. These are people to whom the terms of a contract are as sacred as a sperm.
And in case you were wondering about those demons from Alchemy Mindworks:
Alchemy Mindworks accepts no responsibility for any loss or damage or expense cause by leather-winged demons of the night either.
Allowing Secret Software
Click-through agreements may allow a vendor to install software that serves their interest, but not yours. One infamous case of this was the Sony Rootkit debacle, where users of music CDs on a computer were required in the clickthrough to allow Sony to install a rootkit, a deeply hidden piece of software, on the user's computer.
No public criticism of the product
You may have just agreed not to give the product a bad review or publish measures of its performance. Don't believe me? Check out what the Electronic Frontier Foundation has to say.
Many agreements on database and middleware programs forbid the consumer from comparing his or her product with another and publicly criticizing the product.
These fairly technical limits represent the camel's nose under the tent for this one.
I predict that non-disparagement clauses will grow in the direction of their their logical conclusion. Coming soon: Companies combing through product reviews, with their lawyers pressuring users to remove bad reviews under threat of legal action. Because by the way, the user agreement prohibits publishing negative information about the product.
Oh, wait
A Utah couple recently had a company demand $3,500 in compensation for a bad review they wrote in 2008. The company based the demand on a non-disparagement clause in the site's terms of service.
They own everything that their product touches
The fun started with Google Chrome. Google's original terms asserted ownership of everything that went through your browser. Everything you wrote, everything you created, everything you communicated. After some amount of ridicule, they modified their terms.
But Amazon Kindle still owns your blog content:
"You hereby grant to each Amazon party, throughout the term of this agreement, a nonexclusive, worldwide right and license to distribute publications as described herein, directly and through third-party distributors, in all digital formats by all digital distribution means available, such right to include, without limitation, the right to: use, reproduce, adapt, modify, and create derivative works of and use and distribute, as we determine appropriate, in our sole discretion."
Terms may be Revised Without Notice
A vendor can change the terms of an agreement, not tell you, and it still can be enforced against you, if you continue to use the product. Don't take my word for it. Ask Apple:
Apple may update or change these TOS at any time and recommends that you review the TOS on a regular basis. You understand and agree that your continued use of the Service after the TOS has changed constitutes your acceptance of the TOS as revised.
Oh yeah. Anything else they want to put in
Because to be enforceable on you, there's no requirement for you to actually read it. Just that you have the opportunity to read it, and that you affirm your agreement to that thing you didn't read.
So - can these agreements really be enforced?
Case law says Yes They Can, as long as the terms are not unconscionable and in accordance with reasonable and typical agreements.
And there's the rub, with an ongoing trend. Over the course of the next few years, companies will push the envelope, adding terms that no reasonable person would agree to, and then asserting that they are typical because they are ubiquitous in so many agreements that have been clicked so many times. And as for "unconscionable", the overall trend is that conscience is a diminishing factor in setting business norms.
The requirement to agree to the terms will spread, from online purchases today to all purchases in the future, because for a vendor, it's just so sweet that they can get a buyer to agree to anything they say. When the terms pop up in the checkout line, you're not going to stop and read them before you agree.
In past decades, we heard from the shallow business press how it was important for any great company to concentrate on their core competency - the place where the company could always create excellent results.
And yet today we see sprawling aggregations of companies, business frankenfish swimming between continents, selling dozens or hundreds of unrelated products. What possible advantage could be obtained by such brobdingnagian combinations?
Across all of the product lines, there is one skill that rules all, the One Ring of 21st-century capitalism. In that skill the giants have found their core competency. Their great advantage, their excellence, is in mastery of the terms. Gaming each transaction, ensuring that they win and you lose.
All with your agreement, of course. One click at a time.
James R. Wells is the author of The Great Symmetry, coming in April 2015.
In an asteroid in the Aurora star system, exoarcheologist Evan McElroy has made a discovery about the Versari, a long-departed alien race. Material, he thinks, for some great research papers. But Evan’s sponsor, the Affirmatix family of companies, realizes that they can make huge gains from the new finding, if it is kept completely secret.
As Evan flees for his life, he finds that his trajectory has reawakened the long-buried struggle of the Infoterrorists, who believe that all knowledge screams to be free, against those who maintain the True Story that holds all of civilization together.
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