End User Agreements – Stealing customer rights with a sneak attack in the fine print

Recently I have become more aware of the many “agreements” that companies use to try and take away the rights of users (and protect themselves from any liability). Almost every activity in this increasingly digital and legalistic world comes with attached fine print that tries to absolve the company of potential bad behavior. When you sign your credit-card slip at Best Buy or Fry’s, you waive all kinds of rights you get under consumer protection law. Of course if you actually stop to read these agreements, it is likely that your session will expire if your online or if your in the checkout line at Target the clerk will likely call the manager or even the police after the first hour or so of haggling (everyone should do this at least once a year – then they would stop doing it I’d wager). It would literally take all day to read, and ask questions (none of which the store clerk would be able to answer) about all the agreements in an average customers shopping cart. Since reading them all is not practical, and understanding them not possible, and negotiating them is NEVER possible – what to do? What’s the point of having rights (like fair use) if they can, and are, so easily swindled away?

There are several options:
1) not use the product or service – this is difficult since often you are not aware of the agreement until after your already bound by it (or so they claim)

2) expose and embarrass the company to change the agreement. I have seen this work several times (like when AT&T changed its Terms and conditions of internet access to say: AT&T can terminate your connection for conduct that “tends to damage the name or reputation of AT&T, or its parents, affiliates and subsidiaries.” Basicly they said they can cut off your internet access if you post negative things about them – a few days later they more than reversed after a huge amount of negative publicity and the re-emergense of the whole net netrality debate.)

3) Fight it, rebel or create your own counter agreement – this is the most fun. See below.

4) Don’t worry about it – there seems to be a legal concept of onesidedness – if a contract is so onesided as to benefit one party to the exclusion of the other or is clearly unfair, it is not enforceable.

Not reading these agreements can have real consequences as they often tell you what evil they are about to do. For example, here is the user agreement from Avenue Media’s Internet Optimizer (Warning: do not install this software by the way it is spyware):

“In consideration for viewing of video content, Avenue Media may send email to your Microsoft Outlook contacts and/or send instant messages to your IM contacts offering the video to them on your behalf. By viewing the video content, you expressly consent to said activity.”

The creepy thing about this is they think this gives them permission to do this. The fact that so many legitimate less illegitimate companies have such similar fine print means they can hide in the open with out anyone reading this agreement because they do not read ANY agreement.

Here are some other examples of abusive EULA (end user license agreements):

Need examples of abusive user agreements that you are probably already party to:

From Facebook:

By posting User Content to any part of the Site, you automatically grant… worldwide license (with the right to sublicense) to use, copy… and distribute such User Content for any purpose….

Ever browsed Hilton.com to book a room? I hope you talked to your lawyer first in order to give up all rights like you agreed you would:

“Nevertheless, it is your intention, through this Agreement, and with the advice of counsel, fully and finally settle and release all such matters, and all claims relative thereto, which do now exist, may exist, or have existed between and among the parties hereto, including the Indemnified Parties. You hereby acknowledge that you have been advised by your legal counsel, understand and acknowledge the significance and consequence of this release and of this specific waiver of Section 1542 and other such laws.”

When you install the flash player in your browser you agree that Macromedia can audit your computer:

You agree that Macromedia may audit (search your computer?) your use of the Software for compliance with these terms at any time, upon reasonable notice. In the event that such audit reveals any use of the Software by you other than in full compliance with the terms of this Agreement, you shall reimburse Macromedia for all reasonable expenses related to such audit in addition to any other liabilities you may incur as a result of such non-compliance.”

From a Southwest Airlines video contest:

Entrants grant permission to Sponsor to use their names, likenesses, biographical information for promotional or advertising purposes in all media worldwide, without notice or further compensation

RCA Thompson Customer Service aggreement:

In order to ask a question about a product or receive support, you must “register an account” and consent to allowing them to sell your personal information.

And of coarse almost all of them contain this sweet note at the end:

“Please check back on this page often – We reserve the right, at any time and from time to time, to update, revise, supplement, and otherwise modify this Agreement and to impose new or additional rules, policies, terms, or conditions on your use of the Service without prior notification. Such revisions will be effective immediately and incorporated into this Agreement. Your continued use of the Service will be deemed to constitute your acceptance of any and all such Additional Terms.”

If it makes you feel better, here is a fun way to combat it with your own Terms from reasonableagreement.org:

This is a counter agreement they created and recommend that you place everywhere: on the back of your business card, bumper stickers, t-shirt, email sig, etc. Basically it says that that they (the store) agrees that your don’t agree to bogus agreements. That you are immune that any agreement that someone tries to claim you’ve entered into just by using their product or service. In other words, you saying unless you sit down and talk to me like a human being, and we negotiate a contract – I don’t accept it and I’m given them fair and open warning that I don’t accept it, in the same manner they tried to push it on me – unavoidable sneak attack.

READ CAREFULLY. By [accepting this material|accepting this
payment|accepting this business-card|viewing this t-shirt|reading this
sticker] you agree, on behalf of your employer, to release me from all
obligations and waivers arising from any and all NON-NEGOTIATED
agreements, licenses, terms-of-service, shrinkwrap, clickwrap,
browsewrap, confidentiality, non-disclosure, non-compete and acceptable
use policies (“BOGUS AGREEMENTS”) that I have entered into with your
employer, its partners, licensors, agents and assigns, in perpetuity,
without prejudice to my ongoing rights and privileges. You further
represent that you have the authority to release me from any BOGUS
AGREEMENTS on behalf of your employer.

A couple of great websites in addition to those mentioned above:

  • Eulascan – a collection of reviews of end user agreements
  • Terms of Embarrassment – A good post on info world with lots of comments from intelligent readers
  • I’m sure they are tons more but I’m tired of writing, so I’ll let you tell me in the comments 🙂

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