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The Problems With “Agreeing” Without Agreeing

January 30, 2014

Contracts are a part of everyday life in the digital age. We agree to something or other just about any time we download music, install software, and use social networks or other Web services, just to name a few. Few people actually read these agreements, and fewer still understand them. I think we reached the point a long time ago when people stopped caring what these agreements said and decided to do as they please, especially when they’ve paid good money to “buy” some piece of software or media. In my allegedly-humble opinion, this is a huge problem.

In times gone by (which I’m sure were horrible, but that’s beside the point) intellectual property was simple: You bought something like a book or a record, and you were basically fine as long as you didn’t violate copyright law. These days, however, most things come with some kind of license agreement attached, which (being legally binding contracts) can obligate you to to do (or not do) things beyond the requirements of the law. A common example is the First Sale doctrine: Ordinarily, a copyright holder’s right to control distribution does not extend to control of what someone does with a copyrighted work once it’s been lawfully sold/transferred for the first time. However, it’s extremely common for license agreements and terms of use (like those for Google Play, Amazon’s MP3 store, and probably iTunes) to make the license non-transferable. My student-licensed copy of Adobe Creative suite and a copy of AutoCAD that led to an infamous district court decision had similar restrictions, so don’t think this applies only to downloads.

Another common restriction is that the software or other digital goods be used only for personal, non-commercial use. This comes up a lot in relation to anti-virus programs and other software that has both free and paid versions. One particularly bizarre instance is Google Play, which actually goes so far as to say that copy-paste functionality in any text-based apps is for non-commercial use only. I suppose if you use an Android device for work, you’re not allowed to copy and paste. Or you could do what I suspect most people will do and ignore that restriction, because it is ridiculous.

That brings me to the main issue: Most people don’t actually agree to any of the license terms they “agree” to on a daily basis. Generally, when it comes to EULAs and Terms of Service, people just click “Agree” without reading to get through the process as quickly as possible. I admit I don’t have statistics on this, but I have plenty of anecdotal evidence. Off the top of my head, I can’t think of anyone I know personally who bothers to read them. I’ve even heard lawyers (in various episodes of This Week In Law) confess to not usually reading the terms.

I also have at least some anecdotal evidence of people knowing what’s in the terms and not caring. I’ve had people tell me that they have no intention of abiding by license terms that they describe as stupid or unfair. In fact, it’s hard not to do that in many cases, when license terms are so unclear or so broad that it’s hard to tell what is a breach, and easy to breach the terms unintentionally.

The reason I think this is a big deal, when it would be so easy to ignore it and go about my day like everyone else, is that whether people read these agreements or not, they are still binding contracts! Indicating that you agree to terms you have no intention of actually fulfilling is basically fraud. (I say “basically” because I’m not sure that it meets the strict legal definition of fraud; I’m not really the best person to ask about that, as I’m not a lawyer and have not studied contract law in any rigorous fashion.) Even if it’s not technically fraud, it’s still a breach of the terms, which usually results in loss of any rights granted to you under the terms. That probably means you’re on the hook for whatever you’d be on the hook for if you didn’t agree to the terms in the first place, which could be anything from copyright infringement to violations of the Computer Fraud and Abuse Act, depending on what terms you violated.

One thing that worries me is the potential for selective enforcement. Agreements frequently include language indicating that just because a company doesn’t pursue all its rights under a contract doesn’t mean they waive those rights. In other words, “You didn’t say anything when everyone else did it” is not a valid excuse. It’s entirely possible, albeit unlikely, that some company will decide to make an example out of you.

Let’s assume you’ll never get in trouble for violating TOS or a EULA. Even then, I still think ignoring the agreement is a bad idea, because I think it’s a bad idea in general to become desensitized to contracts.  Sooner or later, you’re going to get into a situation where you need to agree to something and will be expected to hold up your end of the bargain. Besides, getting into the habit of lying about whether you agree to something or not is ethically problematic, to say the least.

Finally, willful breaches of contract being a social norm makes life difficult for people who do want to try to abide by terms they agree to. In many cases, the terms impose inordinate obligations on people, but the alternative to accepting them (or willfully breaking them) is to do without the product or service they govern, which can be a big deal in the information age. However, companies can get away with imposing essentially any restriction they want, because they can always argue that the restrictions aren’t hurting anyone: After all, look how many people have no problem agreeing to the terms every day!

I admit I probably get bent out of shape about this sort of thing a bit too easily. I still think that, in principle, this is a serious problem.

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