When was the last time you read all the terms and conditions for a service you used? Have you ever read the terms and conditions? Probably not.
So why do we spend so much of our time ignoring the thousands of words of legally binding “end-user licence agreements” (EULAs, if you like) legally-binding contracts we agree to every day? Is it even possible to read the T&Cs for everything a typical person does? Is there any value in reading all this anyway?
“The biggest lie on the internet is ‘I have read and agree to the terms and conditions’,” says security expert Mikko Hyppönen. Setting out to prove his point, Hyppönen’s company F-Secure set up a free WiFi hotspot in the heart of London’s financial district in June 2014.
Buried in the terms and conditions of the free network was a “Herod clause”: in exchange for the WiFi, “the recipient agreed to assign their first born child to us for the duration of eternity”.
Six people signed up.
“EULAs suck – we can all agree on that,” said Hyppönen. “They shouldn’t be binding, because nobody reads them. But from a legal point of view, they just might be.”
Agustín Reyna of the European consumer-rights organisation BEUC told me why: “It’s a consumer contract. No matter what you call them, it’s a contract.”
To get a sense of just how much legal chaff we’re buried under, I decided to spend a week of my life not checking the box marked “I have read and agreed to the terms and conditions” until I had actually, you know, read them. Worse, I would do it retroactively, sitting down to read the T&Cs of services I’d been using for years.
The end results: I collected 146,000 words of legalese – enough to fill three quarters of Moby Dick, just to explain what I can and can’t do online – from just 33 terms-of-service documents. Each document only took me about 15 minutes to read (or, if I’m honest, to skim-read), but I still spent well over eight hours of the week just sitting reading page after page of dry, impenetrable prose.
Apple: out of date terms and conditions
The worst day, as expected, was the first. My iPhone is also my alarm, which means that at 6am on a Monday, I was greeted by 21,586 words to read before breakfast. In deference to my girlfriend, who was still asleep, I also broke my rules straight away and turned off the alarm before settling down to read the iPhone T&Cs.
Going first with the iPhone ended up making sense, though, because in many ways Apple’s practices are emblematic of everything that’s wrong with the culture of mindlessly hitting “accept”.
Apple may be famous for products that ruthlessly strip out obsolete parts in pursuit of ease-of-use and simplicity, but that philosophy hasn’t reached its legal department.
The terms typically start with an introduction where every word is capitalised, because not a single lawyer cares about anyone being able to read their actual documents. The capitals are included because of an American legal regulation which stipulates that certain parts of a text must be “conspicuous”. Since there’s no corresponding requirement that it be legible, the consensus is that capitalising the necessary parts fits the bill.
Where Apple didn’t innovate, one company did: credit goes to music service Bandcamp, which explains, in its introductory paragraph, that “we’ve done our best to make it all go down smooth – you won’t find any 8-point type, or long sections of TOTALLY UNREADABLE ALL-CAPS intended to fulfill the legal definition of “conspicuous” (we’re pretty sure Your Honor will accept yellow, bold text instead).”
Perhaps the best marker of how little Apple cares about the terms of service it requires its users to read can be found several paragraphs down the iCloud terms and conditions. (Incidentally, despite being broken into separate documents, it’s all-or-nothing when it comes to agreeing or rejecting the terms.)
Under the heading “Google Maps Service” is the proviso that:
use of the Google Maps service is subject to the following additional terms: Google Maps Terms of Service available at http://maps.google.com/help/terms_maps.html and Google Maps Legal Notices at http://maps.google.com/help/legalnotices_maps.html.
That’ll be the Google Maps service which was famously dropped from iPhones in 2012, over two years before the debut of iOS 8.2, the version I am running.
It seems that no one at all reads Apple’s terms and conditions – even people who work for Apple.
Simplenote: a blissful 140 words
The rest of the morning wasn’t as depressing as Apple, though it was still terrible. Next up was Simplenote, a cloud note-taking service.
Like night and day, Simplenote’s terms of service come in at 140 words.
Sure, Simplenote only needs to cover a relatively simple text hosting and syncing service, while Apple’s cover a gaming social network, a music, app and video store, a voice-control service, and an operating system. But it’s clear that Simplenote actually cares about what a non-expert user who ends up on their page will see, and has strived to make the document as clear and readable as possible.
The basic terms, in their entirety, read: “You are responsible for keeping your login and password safe. The Service should not be used to store sensitive information such as bank account numbers, credit card information, or passwords. We are not responsible for any information stored with the Service.”
I was feeling good. I had barely finished breakfast, and already I’d read two sets of terms and conditions, and one of them was positively pleasant. Maybe the week wouldn’t be so bad?
And then I went online.
BT: they will pay up if I die
For most people, a licence agreement for a broadband connection is more of a “real” contract than the terms and conditions for digital services they click but largely ignore. Broadband comes with a requirement to pay, early cancellation fees, and a credit check.
All the same, I still hadn’t actually read my contract with BT, so downloaded a copy to read on the way in to work. I was already late because of Apple, and didn’t need to make things worse.
The good news is that BT’s terms and conditions, freed from the American requirement for “conspicuous” warnings, is actually legible; the bad news is that it turns out that I have to pay them money until the day I die, and they aren’t really obliged to do anything in return. I may be paraphrasing a little.
In a way, it shouldn’t be a surprise. It’s not like the company actually gives me good service as it is: I live in one of the worst constituencies in the country for high speed broadband, and on top of that, my flat is a new-build, notoriously overlooked by telecoms companies eager to make developers pay for the cost of wiring.
On the plus side, if I am injured or die as a result of BT’s negligence, they will accept responsibility. Which is nice, because no other company bothered to mention this in their documentation.
On the minus side, while BT “aims” to provide broadband service, it qualifies that aim by stating: “We do not guarantee either the quality of the service or that the service will be available at all times.” The terms and conditions remind me that I can cancel within the first three months if the speed isn’t up to scratch, but beyond that, I’m not entirely clear what I’ve actually been paying for. Goodwill?
It didn’t help matters that I read the whole thing standing up on a packed Tube, squinting at the tiny writing on my phone. After 6,000 words, and an hour-long commute, I arrive at work. And in the process of booting up a laptop, signing in to my work mail account (provided by Google) and opening Twitter, I commit myself to another 35,000 words of legal documents, and feel a little part of myself die.
Google: actually in plain English
When I headed into the week, I’d expected Google to be the worst. After all, it’s the company that is the epitome of the internet adage that if you are not paying for it, you’re the product being sold. I was expecting byzantine documents, deliberately difficult to read to obscure the dastardly passage where they claim the right to sell my mother’s maiden name to Russian hackers for peanuts.
The passage about ownership of uploads – always a hot-button topic when it comes to sites like YouTube which allow user-generated content – is clear and easy to understand:
Some of our Services allow you to upload, submit, store, send or receive content. You retain ownership of any intellectual property rights that you hold in that content. In short, what belongs to you stays yours.
A similar passage in Twitter’s terms is also fairly well written (for a legal document – this is relative), only tripping up when it attempts to list every single thing you could conceivably do online in one sprawling mass of verbs:
You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).
These companies have learned the hard way that just because no one reads the terms and conditions before they sign up, it doesn’t mean that no-one reads them ever. Indeed, Twitter, along with Facebook (whose 3,300-word terms and conditions I read as I prepared to edit the Guardian’s page), regularly has to fight back against viral hoaxes purporting to reveal the social networks’ plans to steal everyone’s material.
At the same time, the sites do benefit from a certain lack of legal understanding. It’s true that you “retain your rights” to anything posted on Twitter; but it’s also true that the “worldwide, non-exclusive, royalty free license” gives the company almost infinite leeway to do what they want with your content, regardless of the rights.
ALL CAPS ARE MEANINGLESS
By the end of the day on Monday, I had done little other than read terms and conditions. Yet another huge chunk of Apple documentation accompanied my laptop, requiring different agreements for the operating system and for iTunes (20,000 words altogether); the requirements for Dropbox (1,500 words) and my Oyster card (2,200 words) were svelte in comparison, although both failed the readability test, with MEANINGLESS ALL-CAPS out in force.
Still, getting over the initial burst of agreements meant I could relax a bit into the flow on Tuesday, and find out a bit more about the legal background behind these documents. After, of course, reading and agreeing to the terms of service on the Guardian (6,900 words, pretty standard stuff) and Buzzfeed (3,788 words, ditto), just to leave a couple of comments on each site.
What’s the penalty for breaking the terms?
Some have argued that the vast bulk of legal verbiage encountered in the information age is worth little more than the pixels it is written on. Citing British common law, they point out that a valid contract must offer, at least theoretically, the opportunity for negotiation. End user license agreements – the rules that govern the use of software and even hardware which, overwhelmingly, has already been bought and paid for – violate that legal principle.
If you hit “disagree” while setting up an iPhone, for instance, it doesn’t call up an Apple lawyer and offer you the opportunity to renegotiate the terms under which you use the iTunes Store. Instead, it simply bounces you back to the page before, and waits for you to try again.
The argument that such documents have little strength is reinforced by the rarity of them ever affecting court cases. By and large, the penalty for breaking the terms and conditions of a service is being thrown off it: losing a Twitter account, for instance. While having clearly laid-out terms and conditions helps clarify things for both sides in the event of unpleasantness, it’s not actually necessary for that tier of enforcement.
A private business is allowed to stop serving a customer for pretty much any reason it likes (although not if the EU has its way), and they have little recourse. But in the internet world, that’s pretty hard on consumers who have to choose between a handful of all-powerful companies that dominate consumer electronics, digital services and retail.
Has any company ever enforced an end user agreement?
More serious enforcement of the terms and conditions tends to be done through other legal mechanisms. In 2006, video game developers Blizzard sued MDY, a company which made software that let users cheat in World of Warcraft, Blizzard’s bestselling massively-multiplayer online game. The case alleged that using the software, called Glider, violated Blizzard’s terms of service.
Two years later, however, and Blizzard won a summary judgement based largely on a very different legal argument. The company’s copyright had been infringed when Glider had let players cheat at the game; and the way MDY had circumvented its anti-cheating software also meant it had illegally broken copy protection. Two years after that, many of the rulings were reversed at appeal, but the judgement that MDY illegally broke copy protection stood.
The court case did, however, reaffirm one crucial aspect of the law that surrounds EULAs: you are not the owner of software you buy. Instead, you are merely a licensee, and that licence can, and most likely does, come with conditions.
Just last month, we saw that taken to its obvious end point as Microsoft sought to enforce a contract signed with testers for its upcoming game Gears of War. The testers had leaked information about the game, breaking the agreement they’d make with Microsoft. The company’s response? It banned the leakers from Xbox Live, the online service required to use a vast array of the console’s features, permanently.
It even temporarily blocked use of their console offline – something that was well within its rights because, as the testing service explained in a letter its testers, the leak broke the terms and conditions. “The nature of the leak having had occurred through Xbox One, actually also went against the Microsoft EULA, which is agreed upon when creating an Xbox LIVE account, or any other type of Microsoft account,” the company, VMC, wrote.
As I discovered on Tuesday evening, Sony’s Playstation has similar language. I should have known I wouldn’t be allowed to relax, even in my own home. Sitting down to play some video games required three separate sets of terms and conditions, for the console itself, the online service attached to it, and the specific game, Bungie’s Destiny, that I wanted to play.
And sure enough, if Sony discovers that I have violated any term of its collective 20,000 words of legal agreements, which I and perhaps three other people in the world have read in their totality, the company reserves the right to:
take any action to protect its interests such as disabling access to or use of some or all System Software, disabling use of this PS4 system online or offline, termination of your access to PSN, denial of any warranty, repair or other services provided for your PS4 system, implementation of automatic or mandatory updates or devices intended to discontinue unauthorized use, or reliance on any other remedial efforts as reasonably necessary to prevent the use of modified or unpermitted use of System Software.
In other words, break rules you don’t know about, and Sony reserves the right to turn your £350 console into a brick. And those rules are ridiculously broad.
If you don’t install the most recent version of the system software as soon as you reasonably can, you’ve broken the agreement. If you “lease, rent, sublicense, publish, modify, patch, adapt or translate” the PS4’s software, you’ve broken the agreement. If you “use any … modified hardware” with the PS4, you’ve broken the agreement.
As with so many of these rules and regulations, it’s not that Sony intends to go around bricking users’ consoles; but if they want to, they are perfectly within their rights to do so.
And, naturally, the company does not provide any promise that the software or hardware will work or do what it says it will do, but it does require access to your personal information including your IP address and console ID for marketing purposes. And no, you can’t complain. It says so in capital letters.
While licence agreements are enforceable contracts, as the BEUC’s Agustín Reyna points out, it is possible for them to go too far even for the courts. “In European law and also at national levels, we [have] what’s called ‘unfair terms legislations’,” he says. If a given contract has unfair terms, “the judge can do a kind of balancing test and see whether the terms are unfair. Not everything that is in the contract will be enforceable.”
In fact, one of the big wins in recent years for consumer rights in Europe was against Sony. “A couple of years ago there was a case by the Norwegian consumer council, in relation to the Playstation,” Reyna says. “In the terms of the licence there were clauses allowing Sony to automatically update or even erase operating systems that were not those provided by Sony.”
What’s more, it was possible to install other operating systems on the console, including the open source operating system Linux. But that too “was prevented by Sony in the terms of the license. So the Norwegian consumer council took them before the ombudsman”, Reyna says.
After ploughing through the Sony terms of service, the best I can say about Destiny’s EULA is that it was short. Just 2,000 words meant that I finished it before bedtime, hoping I’d be able to play on Wednesday.
I did not play Destiny on Wednesday
Just halfway through the week, but significantly more than halfway through the legal agreements I would end up having to read, I began to run out of energy. I found myself purposefully changing my behaviour so as to not have to read any more EULAs. I’d already agreed to the Playstation’s terms of service; I wasn’t going to read the one for Valve’s Steam just so that I could play PC games in the same week.
But still they kept coming: Netflix (4,000 words, and starts off by offering false hope with a cheery, human, “Welcome to Netflix!”, before descending into grey legalistic mush); Apple TV (another 4,000 words, and as bad as the previous Apple agreements); Storify (5,300 words, again introduced with a “Thanks for using Storify!”, again sapping my will to live); and Bandcamp, with its 7,100 word, over-long EULA saved by being broken up with lime-green text instead of block-capitals.
I didn’t manage to play Destiny on Wednesday – I just read legal text.
On Thursday, I was mercifully out of the house in the evening. Say what you will about the scourge of drinking, but no pub I’ve been to demands you return your pints if you don’t obey their rules. And board and card games have not yet followed video games into the requiring arcane license agreements before you can play them with your friends.
By the time I hit Friday, I had narrowed the pool sufficiently that only two more EULAs crossed my radar: comics app Comixology, and mobile payment service Yoyo. Both had thousands of words of terms and conditions, though without any nasty surprises, and one even offered me £5 of free coffee at work for signing up. But even though I knew it was over, I was broken.
The problem: there’s no negotiating power
The problem is that reading the terms and conditions simply doesn’t help. Sure, you find out how pitifully small your rights are compared to those that even a medium-sized company will reserve when you use its product. But the issue isn’t just one of obscurity: it’s also a problem with the power relationship. With no negotiating power, it ends up being mostly depressing reading.
Finding out that Sony can brick my console at will if they decide I haven’t downloaded the software update quickly enough doesn’t give me any power to fight back. I can’t offer them £50 extra for a console that doesn’t come with that clause, nor can I jump ship to a competitor with better terms – because one doesn’t exist.
A glimmer of hope exists in the world of social media, where the worst of T&C over-reach has, occasionally, been defeated by user revolt. In 2012, Instagram, then newly acquired by Facebook, changed its terms to allow the use of photos uploaded to the website for advertising purposes (without paying the photographer). It sparked outrage, and eventually resulted in the company updating the terms to clarify what rights it was, and was not, requesting.
It was a rare example of a company demanding the broadest possible legal interpretation of what it intended to do and was forced back into clearer, narrower terms.
There are groups fighting for a world with clearer language, and narrower terms. Agustín Reyna, of BEUC, is one: “Of course consumers have to be aware what they’re signing into. The problem is that one side has to work on the transparency of these terms. You cannot expect that the consumer will spend 20 minutes reading the terms and conditions of a specific service.”
In general, reading the terms and conditions won’t be as exhausting as my week was. You don’t have to do it all in one go, after all. But it will likely end up being as pointless. Are you really going to leave Facebook if it is a little more aggressive about the rights they claim? After all these years? Is that the hill you’re going to die on?
In the meantime, though, my advice is this: carry on not reading the terms and conditions. Hope someone with more time, a better legal education, or a weird fetish for huge chunks of block capitals, does it instead. And just hope you don’t sign away your first-born in the meantime.
guardian.co.uk © Guardian News & Media Limited 2010