"Ep. 80: Why are EULAs so hard to read?"
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Ep. 80: Why are EULAs so hard to read?
-- everyone welcome to reporters' roundtable primary people in San Francisco this is our weekly show we dive into a single tech topic each time.
And today we're going to be talking about.
-- let's end user license agreements in terms of service and the like now one of my favorite podcast -- -- tell -- where the show came from one of my favorite podcasts.
Is NPR aside from ours is NPR's planet money.
And in March they did this great episode called why our credit card agreement so long.
I loved it.
But to me the credit card discussion is simple compared the stuff we deal with and tackle all the time which is terms of services and -- a UPs acceptable use policies and the like.
So today I'm stealing outright the planet money podcast idea because I didn't sign anything saying I couldn't.
And we're doing reporters' roundtable on Hewlett's.
My -- for this discussion is Gabriel Ramsey who is actually an attorney. Who writes you --
Thank you very in the house thank you for coming in appreciate it.
-- gave also. Works on them taken down hacker networks nominees.
In actually call collaborating with the department the DOJ well yes in next week's elections to take -- -- in the life.
We've been pretty successful. -- one next.
One day when gave it finishes his work day that volume of spam traffic in the United States -- up with the purposely that was a large part of the into the work that you that you and your group did yep that's right -- --
So thank you.
Yup my pleasure and our republic -- --
So this gonna be great discussion now of course before we get -- -- this discussion if you've been following Twitter and FaceBook all that you know that we asked a famous actor Richard -- who's a fan of CNET.
If he would reduce the favor of Reading a couple of -- -- forests and we we gave him actually excerpts from the Apple iTunes --
And I just want him I want to start the show out.
With an introduction of the Apple iTunes Ullah.
This is it read by Richard drive.
-- used in Apple's.
You need to be down. At -- -- --
Do not agreed. To the terms of its license.
I love that now that that just to get a -- up of course what most people think in their head.
When they are reading a you -- it's probably more like of this and this is also Richard Dreyfuss reading the the termination policy view.
Ice and -- acted. On it admitted it.
-- acts -- its legs and and they are technically out now that -- at.
If you don't welcome I hit with any. --
-- -- -- -- -- -- --
All that and -- it.
And know Richard thank you it isn't that what you imagined in your head when your reading when it actually if you read one of these things and and gave as a somebody who who. Works on these legal agreements.
Is that the the voice you have in your head when you're writing and am -- -- not Aden not exactly the voice and and if I read your agreements like most folks I think.
Well you'll write the agreement indeed I do the so so I get this straight so.
Use them among other things that we've discussed the you do you you participate in in the writing in the creation of these legal are agreements between.
Service providers and consumers so how does that worked as a tech company -- -- and --
Can you give us an agreement that nobody will reader understand what's going.
-- in fact the opposite is almost uniformly the case of there's a pension that we're always trying to -- to.
Balance between predict when we're doing these things on the one hand -- dual specificity in and and detail is necessary to convey all the ideas that you went conveyed to users with that might compass Apple's scope of the service -- -- -- hand.
He wanted to be in plain English were the relative plain English so people can actually understand what's going on.
Well it did discuss that that dumb that conflict which I think is that the natural conflict of legal agreements and that.
On the one hand you want.
A legal agreement to be specific on the other hand people -- -- can these things ever meet somehow in the middle.
I think think hand and and it it really just takes a dose of restraint.
On behalf of lawyers candidates pragmatism on the app leaders -- them when you start with a lot of detail all the things that you -- can today.
I'm perhaps in the first draft and install. And work through it the second or third fort drafts thinking if I'm gonna read this -- what would my tensions and right.
It does anybody read these things I think very rarely I mean my rule is I read it if it actually makes me click through it simply because it gets my attention. If there's -- affirmative -- required or if it's somebody I've read about in the news recently.
Honestly that you might make me skim through this thing -- landlords not like what.
So for example there's privacy issues that better in the news and I may not be necessarily -- concerns about it but it's enough to get my attention that the next time on site.
Service now and and actually scan through the agreement just to see what's there.
You you have.
That the legal mind to understand what's being said here so what goes through your head when you're when you're trying to stay focused on one of these long -- -- mean.
Some of these are several pages long that the FaceBook privacy agreement is about 6000 words long -- is a very long magazine article so.
How do you stay focused. And walk -- through head when your reading that's one of these agreements.
Yeah I mean really been good the -- in terms of service comes down to some with severe lack thereof I read headers -- we -- that the subject matter matter topics.
And I -- scan through their be some territory that I'm just an interest in -- -- get to you who owns what if you're uploading content for example like CNET.
Section heading my read a little more closely because that's an interest that is -- personal interest and it.
Well one of the I think that the the big challenges that we all have with these agreements.
And it goes back to the very introduction of the iTunes Hewlett and pretty much all software agreements are saying that same thing.
If you do not agree.
To what is being -- here just don't use that the damn thing.
And in the old days of software when you would buy boxed software the agreement said if I remember correctly.
Take it back tear the place you bought from and they will give you a refund.
So they are clear you don't like the agreement no one's twisting your arm.
But that's not really the case as it is it's not that clear a bargain.
Well it depends on the type of the service and -- started.
Square array of hundreds of years ago the basic premise was developed that.
You could agree to something by an actual or refrain -- -- -- that's enough to make an agreement to get something in return about.
That same concept applies where you're talking about that.
Terms on the back of your parking ticket parking garage -- software terms of service -- website terms.
And so that can in fact be a deal. It may turn on.
That it -- maternal and house.
Interactive services are asked to view more than that there is this concept of -- -- that is -- while.
Assent just by.
Going to -- level this is the harder case if all you're doing is coming to pass -- site on your first visit. And -- not quite done anything.
I'm sure there are decisions out there and it's -- users agree to something a little harder case than if you click through boxer you actually sort of news.
So that's an affirmative activists.
A cent so one of things that we're we're looking at bounced around and I believe.
You know the south part of maps of the -- sent that's something.
Where they actually use the term if I'm not -- -- -- just put in my head because I -- the show was coming up a contract of adhesion.
What that's an important term to understand when it comes to license agreement is enough for the consumer -- talk about that little.
Sure yes of conductivity -- -- just as a simple matter.
Our contracts that are not negotiated theirs perhaps unequal bargaining power between one party the other --
I need to take it or leave it type contract.
That's all that means they're not inherently. Illegal percent from.
-- but there's certain -- in the -- other people around them Denton try to equalize the that an -- bargaining position.
Yes so if I want to.
Do would deal with you like I ask you to moma lawn and and we we make Contra I'll pay you you know -- about mow my lawn and you say well I can't do it this -- that -- market. You can walk away I can walk away but at some point we we make an agreement and we -- we shake hands on -- -- something we both agreed on.
When I buy a piece of software there is no bargaining it's either right take it or leave it so is it possible to.
Look at one of these -- -- or or a new piece of something that and say you know what I'm fine even when right.
The two sites that little bit if I.
Decide to do a book write a book for a publisher and they send me -- boilerplate. Standard form contract and its thirteen pages long which is not uncommon.
I go through it and I say in all of that paragraph about writes in. India.
I don't agree with because -- the special relationship with somebody in India wanna change that across about atop them -- and we change.
You cannot do this on -- eighty page long and software licenses. Or Kenya is there -- -- the can argument and it change the contract or at all distinctively.
If you're talking about public facing really broadly distribute consumer facing web -- for example -- and that's just not possible and you you know for probably obvious reasons it.
Every -- five million users of a web service got to negotiate their terms of what has become too costly to operate the service Internet would.
Not be -- in context so obviously we we can't go to that extreme but.
I think understanding what you're going to -- students don't.
-- how do you the level a little bit the disparity in and power or between a the vendors of the services that and the consumers aside from just the consumer saying no.
Is there anything can be done to give the consumer more power -- there's there's some practically second think of and a couple things that on the practical and it really this is really in the control of -- -- the service provider but it behooves them to.
Take this approach which is simply too.
Have a simplified version of your terms that is sort of the cliff notes version perhaps at the beginning of a more detailed version and it just gets the basic points across because. I think that would -- to a lot less dispute in better understand Americans.
Well if we could do support and -- I'm gonna read something here from the Twitter terms of service which -- I read just before we came in here.
And Twitter that Twitter q.s and the Twitter are complex US -- even an -- your albums is great.
It's a very long -- OS.
-- but they have these call outs in shaded highlighted text.
Saying based -- base with cliff notes version that's like you say -- tips. Including they say things like what you say on Twitter may be viewed all around the world instantly.
You are what you tweet.
Thank you Twitter that health and then later on they say.
The license this license is you authorizing -- which it right.
This license is you authorizing us to make your tweets available to the rest of the world and to let others do the same again.
Thank you Twitter making it very clear the -- -- -- published.
Well -- the end of the day disputes -- arise as the government comes asking questions. There may be an -- -- users of reservist who wanna creek creek.
So from the point of view of service provider -- protect yourself against all kinds of risks all that detail --
You're much better protected but you go there what kind of risk coming at you you've been involved and I imagine you've done some litigation around these what what what can happen with the that a good q.s can prevent -- against or you've seen of that he OS leave -- company open to.
-- so let's let's just take.
Privacy issues for example when will didn't mention that you have.
Thirty different types of metrics that you might have to use dropped into between 29 -- -- you have missed an explicit item by item opt in or opt out possibility.
You use you -- you you amiss when the engineers -- got to drop down permit for thirty in terms of service have a global policy which can hang your hat on.
You -- consumer class actions come -- later when you might be able to rely on the -- yet we didn't have a drop down but we informed you that of the -- item in very general way we need to.
We need to rely on the contract.
So are these contracts. Considering the fact that it's -- well known and there's probably an expert witness who would say.
You know nobody -- these things and everybody knows that nobody reads these things therefore.
They are not really good contracts. Because they are not read and understood people just click yes to get to where they want to go.
Because that that.
Are these contracts that you agree to by clicking through. Or ignoring.
Are these actually binding contract hasn't been anybody to fight on that regard.
Most certainly been lots of fights -- uniformly the courts have said that type of fact alone is not enough to -- the contract and as long as there was.
Sufficient notice that the terms were there when the user's site.
Obvious place you're bound by them but.
Mature a while ago the losses it has a couple of ways -- even playing -- one is there may be.
Interpretations. Of the contract it's -- favorite consumer -- if there's -- and then it into the war.
Maybe there's very particular types of terms that -- -- -- contract away its it is the right orbit.
To go to court. In the arbitration -- real.
That matter of public policy here.
Not use. Of those are so if if if US says you agree not to sue if that's actually an unimportant part of a contract in Munich you can agree that you -- -- -- won't see you -- -- -- the forum that happens then there is something that says.
You you cannot -- -- consumer contract in other words it right quarter.
Then -- -- For me it. Has admitted --
What I wanna keep talking about this and talk about some examples some good in valueless and some bad ones so.
Let's take a little pause -- will commercial break -- we come back we'll get some really good examples.
-- -- --
-- we're back thank you.
We've been talking generalities.
About why these forms -- so long why people want them what we can do but let's get into some specifics and I'll start with -- -- -- examples.
-- red -- Actually this -- play this one this plate damages you can find back with real fast.
This is part.
Of the -- not burden for use in the operation of nuclear facilities aircraft navigation or communication systems or air traffic control systems or life support machines or other equipment in with the failure of the Apple software could lead to debt.
Personal injury or severe -- our environmental damage.
It just that so oddly specific in the middle of this big thing about licensing and content and acceptable use.
Why is that super specific thing and it -- seems almost superfluous.
Well I mean there's a thousand times and incomes are three want to limit damages.
-- Contain the risk later on again this is the whole idea of terms of service and -- what you think there's a risk might arise that you would ruin -- vision about the images.
-- the way -- -- the way it's done for long time read the back of your parking that's the the next time department parking you know what.
I do -- -- back and they all say the same thing it's all boilerplate and all says you can park here and because.
And some we can let some nefarious guy in who smashes your current a million tiny -- and you can't do boo about it.
And I just was like what he'd do they all think that there's nothing you can do. Well.
Again if it comes down disputes -- wrong if there's ambiguity -- in the contract and the law may give the consumer the benefit of the doubt so.
That's -- the that contract cases get litigated not mean you may have a term that seems wrote the real news but. It the end of the day. The courts might.
Allow the consumer a little bit interpretive month for their benefit.
So give us an example -- you've worked on a bunch of these things so what are some of the the commoner or better yet some of the to request that you've gotten from from companies or or that you have advised them to put into a term service a term --
Term of service agreement. On behalf of your after clients.
Also one if it comes to mind is.
If it's a user -- content site for example some -- consumers submit content.
The question of whether the website should say that they own the content or merely take a license as one is broken we -- now but some number of years back with a 67 years ago -- the number -- sites that say we don't --
And there isn't tremendous backlash -- comedians to -- it with -- -- material impact on their businesses and so they would then.
We think this idea and say well maybe we should only take about a licensed the extent we need to use this -- when we don't real and that's been well received.
-- that's when she comes --
I guess -- interest thing.
User generated content sites are making everybody aware of common terms in publishing law which is the concept in particular of the the non exclusive license and -- the -- Twitter has this -- Twitter will say you you own your words but we have rights to use them however we want.
And so it's like you're still responsible even though they can do whatever they want with it it is that kind of a thing that people after wrap their heads -- it is although.
It's -- you know it's part of the value of the service they can do the value of a service that that a company like Twitter gets since.
The ability to use the content way that they can monetize and in and benefit from.
And the user gets the benefit of using the service -- for their own purposes and that's that's immediately is a fundamental matter.
It seems like fair exchange and -- -- the basis of every kind of -- web services agreement I think what about some other.
Common requests are a couple questions that you -- wouldn't -- yeah well.
Lots and lots of times rules of behavior if there's user interaction elements like bands were sites tend to get more you -- -- -- there's -- -- it.
Because it depends on the types of U interactions the user might.
Might have an objective forum.
So sometimes. You you know there may be the no profanity titan limitations to the other into the spectrum where.
It's free for all we don't mind back kind of conduct we just don't physically threatened some of that that's probably we're terms are most tailor these -- really practical -- action.
The and that's where things I think some of the terms are really interesting because it's it's the pornography argument can you can't define -- -- you know when you see it.
And a lot of that -- to serve I was reading the Comcast. IS PU's policy.
And a lot of it is so open to interpretation that it seems to me.
That thickest here immune seems they -- tied up on lawsuits forever one of their agreements here and prohibited uses for that for using contest that that's the your permitted to violate the rules regulation terms of -- for policies Apple applicable to any network server computer database service application system.
A website that -- access or use so in other words.
It is against Comcast's TOS to violate the -- and another service I just cannot see that being.
Practically. Possible to deal with what could because -- so many levels of interpretation so -- and even throw the stuff then.
Well the we're using Comcast as an example there Susan for copyright infringement something the user did move.
And also needs service writer finds -- in the middle of this dispute.
They wanna put the blame where the blame is -- -- -- -- service provider will say hey user you should have agreed to you you -- to somebody else's terms of service and content provider for example another forum.
That that's not our problem that -- and that's what that type.
Terms and -- they turn you off and -- now you you do but but but so they're there but they're making themselves.
I don't like being the parent would they're not given full information of both sides I mean they're just thing we just don't wanna deal through gonna shut down.
Yeah I think I think impulses it's understandable that the term does -- universal like a lot of these terms and so that to get back to the media more important.
Concept is just that consumers understand it that's in -- and I and I think the voting with the feet.
Element -- is have a fair one if you don't like it --
They should but -- -- and whistles.
Yeah I mean right where. At the written findings are conservatives only does not have -- -- term there's a the free market argument.
I I wish that were the case but in so many of these of these systems I mean if you don't agree -- Facebook's privacy policies.
There is no other FaceBook. And all you guys doing social network start ups whatever there is no other.
The sort of you to move out of it appeared on the big the agreement itself -- it's all it there's a lot about consumer expectations -- soon.
Extend is really robust public dialog about this type of thing.
Everything from a specific issue like privacy to just.
What can swear words can use an online forum that's.
That debate is important because it puts pressure on everybody to get some reasonable program yeah and things --
Consume what's the the goofy -- for the worst thing you've seen him in and user agreement yet why did my homework leading up -- debate on and I found. I mentioned the name but an --
Software license. That went for almost sixty pages.
And prohibited use -- from uninstalling the application once it's installed now I I can't imagine how that would be enforceable. Under any.
In interpretation of existing -- I think you could say that's against public what it it is so.
I don't understand and adware groups like the toolbar -- yeah and it -- are you a user installs a toolbar that records their click since monetize users ways.
Perhaps even -- -- hijacks their browsing experience and the end user agreement for that particular piece of software since you can't install you can't an installer.
I'm using now where.
Technology for the work and what you do what where their remedies there is no specification of the remedies was just sort of this pronouncement that you're not allowed to do that.
That that to me seems continued volume can you do that in a contract where you say you may not do such and such without saying or else we will do this other thing you you -- yeah and in you don't have to understand the measuring the interior damage from arm at the time.
Would you put -- in the contract that can -- -- -- later.
That's when the -- begin in the lawyers -- -- indeed.
And ask about.
Oh yeah I wanna talk about. Location and and and location -- privacy location and and privacy of association which of these are big FaceBook and Google Maps things.
What are people bring to an -- and are we wells that up in the legal framework that we have here to eat in your opinion to.
Adequately protect. Consumers from the information that is being gathered on who they know where they go what they see that are yet.
Well I mean it's it's obviously sort of it.
And that I dynamic that is in flux right now but again it comes down to you how explicitly to consumers understand precisely what's going on behind the -- with -- information.
And this really in the privacy issues -- the core of the tension between.
Come disclosing what you're doing a -- specificity in a sixty page agreement which does have some value -- and sixty pages explain great.
Detail what's happening with somebody's personal information in which means for example the but then the other side of the -- -- who's -- -- it really -- it and -- and that's.
I I think if we got Twitter is a good one need to just is right to the point you know in a very fundamental visceral way.
The gets uses attentions that he have a concern that might dig a little deeper in -- -- reach understanding.
-- -- legal agreement -- the policy.
The English is quite good and it although what's going on -- FaceBook so.
There's no real way to some fighting for example.
When your friends use a platform if your friend connect with an application replace it will be able to access your name profile picture Federer.
It will also be able to access your connections except it will not be able to access your friendly.
If you already had connected with or have a separate account with that website you may also be able to expect you with friend on -- -- if etc. etc. terror.
It's actually very clear if you sit down and in your study Carroll at in in your college -- and and try to figure it out but it's like.
Come on -- 6000 words nobody's gonna read this thing.
I hybrid recently that there is an effort food at Stanford and -- come up with graphical representations of different types of privacy uses. And so we sort of like you know iconic representations.
W become understood and we consume how far -- -- over. You you might think of it that way depends on how badly with the way it's.
-- speaking of which. I have to ask I have to.
Ask you about this why is it that these long agreements which.
The software the -- -- actually I think wants the consumer to understand.
Are often presented. In little three line windows.
That aren't enough for the brain even -- the information at the scrolls before now they all have links to print or email --
But they present them and easily look just like there mocking you cannot read -- -- click okay.
Yeah yeah I yeah I mean so in in.
Assessing the reasonableness of -- -- -- agreement yet the functional technical details I think we're the first ultimately really does lines -- provider.
-- Symbian three and it should be a simple easy to use font and a -- web page.
-- when I look at -- I can consume it and stand it that's that is an important thing. I think.
That and is that the advice you give your your -- and it is clear at these practical issues of which is as important probably more importantly solutions make -- understand we make the funding after.
-- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- --
And any other great examples -- -- well I mean I I mentioned -- ownership person's license issue.
I I think by and large there there's not that many horrible onerous terms on the the when -- went down about nine and installing adware is.
-- -- -- --
I'm but I think this sort of boilerplate.
-- -- general reservation of rights that you it's not exactly clear what might need on the record button are something to consumers should should think about and and and service providers. One of.
Things I've heard from a startup -- -- nor is that he was very interested in he he put a servers. In Europe.
And the reason that he put -- service -- -- from being a little off the -- -- here was because he felt they it was a Italy cloud storage service he felt that.
Privacy protections -- his protection against subpoena.
Was greater or better in Germany that was here and he didn't want any of its infrastructure to touch the US because he was afraid would not be able to protect its consumers well enough what what are your views on that.
Yeah I think it's its -- is a very real issue in Europe in general under European data privacy directive and there are pretty stringent rules on the ability to access.
-- in the -- for example but.
Exporting it out of you -- and that's something that one might to try it intentionally take advantage of and deciding where to host their data if it is an issue.
Do you think from a global competitive perspective that there is a chance that the United States laws and and consumer privacy protection.
Could level up to to match that he -- an issue of global competitiveness.
Well I mean I think you yeah I can argue both sides of it because in -- some level.
That the prohibitions on the use of -- -- -- director over.
Really ignore the borderless nature of the Internet and some -- They might be perceived as and perhaps I use and and and workable.
And so you know maybe there -- -- somewhere in the middle. Certainly you can extract more value under the US pricing regime if -- web service provider.
And that might have positive economic and.
We got one if in question from -- and our government says are you aware of the PC its popular haven't seen one.
Where they gave a reward of 1000 dollars for reading their Ullah and only one person claimed that.
Now -- not aware of that but it doesn't surprise me Alden when we do the URL to the -- available if it right well IA and at this point there we just -- -- -- Eaton. It are are.
Is that when I mean we've we've done shows here on reports -- -- the game of vacation of the Internet and about.
Using game mechanics and and tweaking people's brains to give them incentives to do what.
People want and you could lead -- something like that when it comes to striking these legal agreements.
Yeah I think so I mean that the point a while ago bouts of visual representation of terms of service incentives. Like the one you just mentioned and or even the general point that was making about dialogue and in the press.
About privacy -- terms of service issue all these things are ways to.
You get consumers to actually think about and understand and consume what's happening in in the -- environment in a way that's very different and pouring 310 point font that 63 page terms of service and I think all those types of methods there are a great step Ford and really the most practical way for -- and consumers understand it's happening to them.
Right any how can we believe -- people who watch a show who are working on their own tech products software services that your.
Any advice finally has been closed off to two people who are working with the site from user. To call you up and have you right they're they're -- than any advice -- and how they should.
Protecting themselves and the consumer.
Well I think news that the watchword is just reasonableness. And it's very easy to -- -- -- these things if you're look at look at examples of web sources that you know and respect and like to replace the start.
And then put written words that you that you.
Might continued -- if you're sitting in the room with them and I think that's a pretty good guiding principle --
Reach some modicum of reached more than --
An agreement that you yourself would not be uncomfortable agreement as -- -- sitting here -- negotiating it.
In real English how might that play out I think you did ultimately the agreement may not exactly that way but it's that it's a good principal --
To help guide you right.
They gave -- -- thank you very much for coming in.
Thanks him for producing this has been reporters' roundtable next week we're gonna do another great show I think what we're going to talk about.
It's cell -- -- radiation as you guys all know it's become a big story in the news again as we've said.
And and -- -- to the rescue show lately that data is no longer quite as inconclusive and used to be about the dangers.
Of mobile phone radiation in your brain and and I wanna get some experts here talk about that I've already got one lined up we'll get another one as well.
Don't miss that show week from today on Friday at --
Again -- thank you.
Thank Stephen we'll -- that's -- next week by.
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