1 00:00:04,440 --> 00:00:12,639 Speaker 1: Welcome to Tech Stuff, a production from iHeartRadio. Hey thereon 2 00:00:12,760 --> 00:00:16,000 Speaker 1: Welcome to Tech Stuff, I'm your host, Jonathan Strickland. I'm 3 00:00:16,000 --> 00:00:19,560 Speaker 1: an executive producer with iHeart Podcasts and how the tech 4 00:00:19,600 --> 00:00:22,760 Speaker 1: are you? So? Not that long ago, I talked about 5 00:00:22,760 --> 00:00:26,000 Speaker 1: a story about Roku and how the company made a 6 00:00:26,079 --> 00:00:30,720 Speaker 1: change to its end User License Agreement or EULA, and 7 00:00:30,960 --> 00:00:34,160 Speaker 1: it raised quite a few eyebrows, even though there's been 8 00:00:34,320 --> 00:00:37,960 Speaker 1: precedent for this. So the new terms included language regarding 9 00:00:38,120 --> 00:00:41,800 Speaker 1: how to resolve disputes with the company. If you're a 10 00:00:41,840 --> 00:00:45,160 Speaker 1: customer and you have a dispute with Roku and you've 11 00:00:45,320 --> 00:00:48,559 Speaker 1: agreed to their ULA, this is how it works. So essentially, 12 00:00:48,720 --> 00:00:53,560 Speaker 1: Roku would require customers to agree to an informal dispute 13 00:00:53,720 --> 00:00:56,880 Speaker 1: resolution clause. Now, this would mean that a user would 14 00:00:56,920 --> 00:01:00,040 Speaker 1: have to agree to bring any legal complaints directly to 15 00:01:00,600 --> 00:01:04,640 Speaker 1: Roku lawyers first before going any further, and at that point, 16 00:01:04,680 --> 00:01:08,000 Speaker 1: the lawyer would presumably present a resolution to the consumer. 17 00:01:08,520 --> 00:01:12,200 Speaker 1: And even beyond that, there's a forced arbitration clause that 18 00:01:12,319 --> 00:01:15,520 Speaker 1: essentially says a Roku customer signs away their rights to 19 00:01:15,520 --> 00:01:20,280 Speaker 1: bring lawsuits or to join class action lawsuits brought against Roku. 20 00:01:20,800 --> 00:01:23,840 Speaker 1: This in itself is not unprecedented. It's not the only 21 00:01:23,880 --> 00:01:26,560 Speaker 1: time a company has said, Hey, in order for you 22 00:01:26,640 --> 00:01:29,360 Speaker 1: to use this stuff, you have to agree that you 23 00:01:29,440 --> 00:01:31,600 Speaker 1: won't sue us if you have a problem with it. 24 00:01:32,560 --> 00:01:36,479 Speaker 1: Other companies have included forced arbitration clauses in their EULA statements. 25 00:01:36,560 --> 00:01:39,120 Speaker 1: And those are those things that nobody ever reads, right, 26 00:01:39,400 --> 00:01:41,959 Speaker 1: And when I say nobody, I don't really mean no one, 27 00:01:42,040 --> 00:01:45,880 Speaker 1: but like, there have been various pieces I've read that 28 00:01:45,959 --> 00:01:50,080 Speaker 1: have suggested that only one tenth of one percent of 29 00:01:50,120 --> 00:01:53,200 Speaker 1: all people who agree to a ULA have bothered to 30 00:01:53,240 --> 00:01:56,120 Speaker 1: read any of it, let alone the whole thing. These 31 00:01:56,160 --> 00:02:00,560 Speaker 1: agreements are designed to protect companies from liability. They're also 32 00:02:00,680 --> 00:02:05,320 Speaker 1: meant to extend copyright protections for stuff that isn't typically 33 00:02:05,360 --> 00:02:09,120 Speaker 1: covered under traditional copyright law, or to fill in gaps, 34 00:02:09,360 --> 00:02:12,760 Speaker 1: and generally speaking, they tend to hold up in court, 35 00:02:12,880 --> 00:02:15,400 Speaker 1: at least they do if they're not poorly constructed. We'll 36 00:02:15,440 --> 00:02:18,240 Speaker 1: talk more about a couple of court cases later in 37 00:02:18,280 --> 00:02:21,440 Speaker 1: this episode to kind of illustrate that. But things get 38 00:02:21,480 --> 00:02:24,440 Speaker 1: worse from here, right, So Roku says, Hey, if you 39 00:02:25,200 --> 00:02:27,680 Speaker 1: agree to this, it means you can't sue US if 40 00:02:27,720 --> 00:02:31,800 Speaker 1: something were to happen and you had a dispute, well 41 00:02:32,680 --> 00:02:36,000 Speaker 1: they also had it where if you had a device 42 00:02:36,080 --> 00:02:39,200 Speaker 1: that uses Roku services, like a television with Roku built 43 00:02:39,200 --> 00:02:42,440 Speaker 1: into it, or a Roku streaming device, whatever it may be, 44 00:02:42,840 --> 00:02:45,200 Speaker 1: then you would get prompted to agree to these new 45 00:02:45,360 --> 00:02:48,480 Speaker 1: changes with a big old agree button. So there'd be 46 00:02:48,520 --> 00:02:51,280 Speaker 1: like one option to agree. There was no other option. 47 00:02:51,320 --> 00:02:53,840 Speaker 1: You couldn't choose no, I do not agree. So in 48 00:02:53,919 --> 00:02:57,440 Speaker 1: order to opt out of this ula, you would actually 49 00:02:57,480 --> 00:02:59,880 Speaker 1: have to track down the information so that you could 50 00:03:00,120 --> 00:03:04,919 Speaker 1: send a handwritten or type letter through the old postal service, Yeah, 51 00:03:05,200 --> 00:03:09,640 Speaker 1: good old fashioned US mail. And even then you could 52 00:03:09,639 --> 00:03:11,720 Speaker 1: only do it if you had opted out within thirty 53 00:03:11,800 --> 00:03:14,880 Speaker 1: days of the new terms applying to you. Now, these 54 00:03:15,000 --> 00:03:18,040 Speaker 1: terms went into effect on February twenty, twenty twenty four, 55 00:03:18,160 --> 00:03:21,520 Speaker 1: so that time is already up. The deadline has passed. 56 00:03:21,760 --> 00:03:24,320 Speaker 1: Not that I think most people would have taken that effort, 57 00:03:24,600 --> 00:03:28,040 Speaker 1: you know, to write in and opt out of these terms, 58 00:03:28,520 --> 00:03:30,880 Speaker 1: Like it's the sort of thing that a company does 59 00:03:31,000 --> 00:03:34,720 Speaker 1: knowing that practically no one out there is going to 60 00:03:34,760 --> 00:03:38,320 Speaker 1: take the effort to opt out, Like you can opt 61 00:03:38,320 --> 00:03:40,960 Speaker 1: in very easily just click that little button, but to 62 00:03:41,000 --> 00:03:43,600 Speaker 1: opt out. You know, it reminds me of a passage 63 00:03:43,600 --> 00:03:46,920 Speaker 1: in a Hitchhiker's Guide to the Galaxy where you had 64 00:03:46,920 --> 00:03:50,360 Speaker 1: to find the terms of the agreement by going into 65 00:03:50,560 --> 00:03:55,200 Speaker 1: a very dark and dangerous basement of a building and 66 00:03:55,280 --> 00:03:57,720 Speaker 1: find it in a disused lavatory that had a sign 67 00:03:57,760 --> 00:04:01,040 Speaker 1: on it saying beware of the leopard. Akin to that, 68 00:04:01,920 --> 00:04:04,840 Speaker 1: and even writing in didn't cut it, like you had 69 00:04:04,880 --> 00:04:07,240 Speaker 1: to do more than that. Customers would have to include 70 00:04:07,360 --> 00:04:09,960 Speaker 1: a lot of information. They had to include their own 71 00:04:09,960 --> 00:04:14,040 Speaker 1: personal information, of course, like their name and their contact info, 72 00:04:14,320 --> 00:04:16,920 Speaker 1: but they also had to list whichever Roku products they 73 00:04:16,920 --> 00:04:19,800 Speaker 1: were concerned about, so presumably all the Roku products that 74 00:04:19,839 --> 00:04:24,240 Speaker 1: they actually owned and used, and then preferably they were 75 00:04:24,279 --> 00:04:27,520 Speaker 1: to include a copy of the receipt for those items, 76 00:04:28,040 --> 00:04:31,440 Speaker 1: although that was also said to be quote unquote optional, 77 00:04:31,480 --> 00:04:33,440 Speaker 1: but it was listed as one of the things you 78 00:04:33,480 --> 00:04:35,520 Speaker 1: were supposed to send in was a copy of your receipt. 79 00:04:35,880 --> 00:04:38,440 Speaker 1: And a big old nod to Devin cold Away of 80 00:04:38,560 --> 00:04:41,680 Speaker 1: tech Crunch for writing the article Roku disables TVs and 81 00:04:41,720 --> 00:04:45,440 Speaker 1: streaming devices until users consent to new terms, because that 82 00:04:45,520 --> 00:04:48,960 Speaker 1: really is what inspired this episode. And kind of gave 83 00:04:49,000 --> 00:04:52,960 Speaker 1: me the launching point for it. Anyway, that Roku example, 84 00:04:53,160 --> 00:04:56,720 Speaker 1: while seeming to be pretty egregious, is really just one 85 00:04:57,240 --> 00:05:00,520 Speaker 1: in which companies have created lengthy, complicated, and and sometimes 86 00:05:00,600 --> 00:05:04,479 Speaker 1: downright shady terms that they expect customers to agree to, 87 00:05:04,800 --> 00:05:07,040 Speaker 1: and most of the time customers do agree to them, 88 00:05:07,120 --> 00:05:10,520 Speaker 1: because again, no one's bothered to read the actual agreement, 89 00:05:10,880 --> 00:05:15,000 Speaker 1: and you know, it's hard to fault customers to do this. 90 00:05:15,880 --> 00:05:17,440 Speaker 1: I want to tell you I am not the person 91 00:05:17,520 --> 00:05:20,479 Speaker 1: who reads ayula. I don't read all of these EULAs 92 00:05:20,480 --> 00:05:22,719 Speaker 1: all the way through. I might scan one once in 93 00:05:22,760 --> 00:05:26,400 Speaker 1: a blue moon, but that is the exception, not the rule. 94 00:05:26,440 --> 00:05:28,840 Speaker 1: So I am not putting myself above anyone else here, 95 00:05:29,279 --> 00:05:34,920 Speaker 1: because who has time to read them? Some EULAs get 96 00:05:34,960 --> 00:05:38,839 Speaker 1: insanely long. Jason Cohen of PC Magazine has an article 97 00:05:38,880 --> 00:05:42,880 Speaker 1: titled it would take seventeen hours to read the terms 98 00:05:42,920 --> 00:05:47,159 Speaker 1: and conditions of the thirteen most popular apps. This was 99 00:05:47,360 --> 00:05:50,080 Speaker 1: written back in twenty twenty, so who knows, it may 100 00:05:50,120 --> 00:05:53,479 Speaker 1: be even more in twenty twenty four. So I think 101 00:05:53,520 --> 00:05:57,719 Speaker 1: folks can be forgiven for skipping reading sessions in order 102 00:05:57,760 --> 00:06:00,200 Speaker 1: to use whatever it was they wanted to use. I've 103 00:06:00,200 --> 00:06:03,599 Speaker 1: seen lots of different summaries of how long some of 104 00:06:03,600 --> 00:06:06,200 Speaker 1: these EULAs are. Like Microsoft had one that was more 105 00:06:06,240 --> 00:06:09,600 Speaker 1: than eighteen thousand words long. Some of them are topping 106 00:06:09,720 --> 00:06:15,880 Speaker 1: above twenty thousand words. That's a lot of material. This episode, 107 00:06:15,960 --> 00:06:19,480 Speaker 1: the script I've written out is less than four thousand words, 108 00:06:19,560 --> 00:06:21,599 Speaker 1: and as I'm going through it, you guys know, it 109 00:06:21,640 --> 00:06:24,560 Speaker 1: takes me like more than half an hour to get 110 00:06:24,600 --> 00:06:28,520 Speaker 1: through these episodes. So that's just speaking it out to you. 111 00:06:29,640 --> 00:06:33,039 Speaker 1: These are really long agreements. So today I wanted to 112 00:06:33,080 --> 00:06:36,200 Speaker 1: talk a little bit about why EULAs exist in the 113 00:06:36,200 --> 00:06:39,599 Speaker 1: first place, and to cover what their purpose happens to be. 114 00:06:39,720 --> 00:06:41,800 Speaker 1: Some examples maybe that have been a little bit on 115 00:06:41,839 --> 00:06:44,880 Speaker 1: the extreme side, maybe a little bit about the legal cases. 116 00:06:44,920 --> 00:06:47,680 Speaker 1: So let's just jump right in now. To understand the 117 00:06:47,760 --> 00:06:50,520 Speaker 1: humble eula. One thing we need to do is understand 118 00:06:50,560 --> 00:06:54,960 Speaker 1: how digital products are different from physical ones beyond the 119 00:06:54,960 --> 00:06:58,520 Speaker 1: obvious that is. So, for example, let's say you went 120 00:06:58,560 --> 00:07:01,360 Speaker 1: out to a local music's or to purchase an album 121 00:07:01,400 --> 00:07:04,400 Speaker 1: from your favorite artist or group. This album happens to 122 00:07:04,440 --> 00:07:07,640 Speaker 1: be on vinyl, So you're buying a vinyl long playing 123 00:07:07,880 --> 00:07:10,680 Speaker 1: record album, and you bring your purchase home, and then 124 00:07:10,680 --> 00:07:13,360 Speaker 1: you do whatever you want with it. You can listen 125 00:07:13,400 --> 00:07:15,480 Speaker 1: to it. You can listen to it as many times 126 00:07:15,520 --> 00:07:18,520 Speaker 1: as you like. It doesn't matter if you've just listened 127 00:07:18,520 --> 00:07:20,480 Speaker 1: to it one hundred times. You can listen to it 128 00:07:20,480 --> 00:07:23,080 Speaker 1: for one hundred and one. You can trade it with 129 00:07:23,160 --> 00:07:26,680 Speaker 1: a friend for something else. You could gift it to someone. 130 00:07:26,720 --> 00:07:29,000 Speaker 1: You could just give it away. You could even sell 131 00:07:29,040 --> 00:07:32,080 Speaker 1: it if you suddenly remembered that you don't own a turntable, 132 00:07:32,160 --> 00:07:33,800 Speaker 1: so there's nothing else you could do with it. If 133 00:07:33,840 --> 00:07:36,080 Speaker 1: you wanted. You could even just shatter the vinyl in 134 00:07:36,120 --> 00:07:39,520 Speaker 1: a display of unbridled passion. The physical object of that 135 00:07:39,600 --> 00:07:45,080 Speaker 1: album is yours. You own that physical object, but it 136 00:07:45,200 --> 00:07:49,680 Speaker 1: is not your intellectual property right. Buying the album obviously 137 00:07:49,720 --> 00:07:52,560 Speaker 1: does not give you ownership of the music that's on 138 00:07:52,600 --> 00:07:55,280 Speaker 1: that album. That seems obvious. If I went out and 139 00:07:55,280 --> 00:07:58,280 Speaker 1: bought a copy of all of the Beatles albums, I 140 00:07:58,280 --> 00:08:02,040 Speaker 1: wouldn't suddenly own the rights to the Beatles discography. That 141 00:08:02,080 --> 00:08:05,600 Speaker 1: would be a chaotic world if it were otherwise. So 142 00:08:06,000 --> 00:08:08,920 Speaker 1: you wouldn't have the right to make endless copies of 143 00:08:08,960 --> 00:08:11,360 Speaker 1: this album to give away to friends. You couldn't do 144 00:08:11,400 --> 00:08:13,520 Speaker 1: that because you don't own the music. Here in the 145 00:08:13,640 --> 00:08:17,280 Speaker 1: United States, you could make a backup copy for yourself. 146 00:08:17,720 --> 00:08:21,280 Speaker 1: That is allowed under fair use. So if you bought 147 00:08:21,280 --> 00:08:24,280 Speaker 1: an album, you could make a backup of it. If 148 00:08:24,280 --> 00:08:26,240 Speaker 1: you bought it on vinyl and you thought, I want 149 00:08:26,240 --> 00:08:27,880 Speaker 1: to make sure I can listen to this even if 150 00:08:27,880 --> 00:08:30,920 Speaker 1: something happens to this vinyl album, then you could copy 151 00:08:30,960 --> 00:08:34,440 Speaker 1: it to like cassette or even a digital file. But 152 00:08:34,640 --> 00:08:37,280 Speaker 1: that's about the extent of your rights. As far as 153 00:08:37,320 --> 00:08:41,120 Speaker 1: that goes. With a digital copy, things are clearly different. 154 00:08:41,320 --> 00:08:44,480 Speaker 1: There's no physical medium to speak of. There's a file, 155 00:08:44,760 --> 00:08:47,520 Speaker 1: and that just consists of zeros and ones arranged in 156 00:08:47,559 --> 00:08:50,520 Speaker 1: such a way that, when processed by the proper program, 157 00:08:50,880 --> 00:08:53,640 Speaker 1: is gonna play back a piece of music. You can 158 00:08:54,320 --> 00:08:58,600 Speaker 1: buy such a file, but because that file isn't imprisoned 159 00:08:58,600 --> 00:09:01,480 Speaker 1: in some physical form, the copyright owners want to have 160 00:09:01,520 --> 00:09:05,880 Speaker 1: a way to keep a reasonable or sometimes unreasonable amount 161 00:09:05,880 --> 00:09:09,640 Speaker 1: of control over the distribution of that file. After all, 162 00:09:09,800 --> 00:09:13,600 Speaker 1: if your livelihood depends upon selling digital content, you don't 163 00:09:13,640 --> 00:09:16,680 Speaker 1: want to make a single sale and then see your 164 00:09:16,720 --> 00:09:20,040 Speaker 1: customer go on to make an infinite number of copies 165 00:09:20,080 --> 00:09:23,040 Speaker 1: of that work and then distribute it for less money 166 00:09:23,120 --> 00:09:25,280 Speaker 1: or even for free, because you would be out of 167 00:09:25,280 --> 00:09:27,200 Speaker 1: a job and all of your hard work would be 168 00:09:27,280 --> 00:09:31,280 Speaker 1: out of your control. This very obvious distinction between physical 169 00:09:31,320 --> 00:09:35,079 Speaker 1: media and digital media, which extends beyond just music into 170 00:09:35,320 --> 00:09:38,000 Speaker 1: lots of other realms, creates a bit of a challenge 171 00:09:38,040 --> 00:09:42,000 Speaker 1: for the entities that produce the media in question. We're 172 00:09:42,040 --> 00:09:46,599 Speaker 1: able to treat physical media as personal property. Typically, the 173 00:09:46,720 --> 00:09:50,080 Speaker 1: challenges of making endless copies of physical media are such 174 00:09:50,160 --> 00:09:52,560 Speaker 1: that there isn't that much of a threat to the 175 00:09:52,600 --> 00:09:55,720 Speaker 1: powers that be once you get your grubby little hands 176 00:09:55,720 --> 00:09:58,880 Speaker 1: on that vinyl album. That doesn't mean that the powers 177 00:09:59,120 --> 00:10:02,760 Speaker 1: that be are always cool with advancements in physical media. 178 00:10:02,960 --> 00:10:07,719 Speaker 1: Film and TV studio companies and music studios notoriously have 179 00:10:07,840 --> 00:10:11,480 Speaker 1: been wary of this. Film and TV studios fought against 180 00:10:11,480 --> 00:10:14,959 Speaker 1: the Humble VCR when it became commercially available, and the 181 00:10:15,040 --> 00:10:18,160 Speaker 1: music industry wasn't really keen on the concept of recordable 182 00:10:18,200 --> 00:10:22,080 Speaker 1: cassette tapes or writeable compact discs. But generally speaking, the 183 00:10:22,120 --> 00:10:25,439 Speaker 1: realities and limitations of making physical copies are such that 184 00:10:25,559 --> 00:10:28,720 Speaker 1: any opposition to the technology fades away over time, because 185 00:10:28,960 --> 00:10:31,320 Speaker 1: it turns out the trouble you have to go to 186 00:10:31,520 --> 00:10:34,240 Speaker 1: in order to make a significant number of copies of 187 00:10:34,280 --> 00:10:37,160 Speaker 1: physical media is such that very few people will actually 188 00:10:37,160 --> 00:10:39,760 Speaker 1: bother with it. Right, Like, there are devices out there 189 00:10:39,840 --> 00:10:42,320 Speaker 1: that would allow you to do things like transfer a 190 00:10:42,360 --> 00:10:46,280 Speaker 1: recording from one medium to a whole bunch of copies 191 00:10:46,280 --> 00:10:48,720 Speaker 1: at once, but even then it was limited because you're 192 00:10:48,720 --> 00:10:50,880 Speaker 1: talking about physical media. So you might have something where 193 00:10:50,880 --> 00:10:54,360 Speaker 1: you can make one master copy and then create ten 194 00:10:54,440 --> 00:10:57,080 Speaker 1: copies at a time, but that's still ten. It's not 195 00:10:57,800 --> 00:11:03,000 Speaker 1: you know, thousands or million. So eventually a lot of 196 00:11:03,000 --> 00:11:05,560 Speaker 1: these companies kind of backed off, but a quick side 197 00:11:05,640 --> 00:11:08,280 Speaker 1: on the VCR issue, that one was one that would 198 00:11:08,280 --> 00:11:10,960 Speaker 1: make its way all the way to the US Supreme Court, 199 00:11:11,320 --> 00:11:16,239 Speaker 1: namely the Sony Corporation of America versus Universal City Studios, Incorporated. 200 00:11:16,280 --> 00:11:18,600 Speaker 1: So this was in nineteen eighty four. So in the 201 00:11:18,640 --> 00:11:22,760 Speaker 1: nineteen seventies, when Sony introduced the Betamax machine, a few 202 00:11:22,800 --> 00:11:25,440 Speaker 1: studios got very upset at what they viewed as a 203 00:11:25,480 --> 00:11:29,160 Speaker 1: device that was just designed for copyright infringement. So Universal 204 00:11:29,280 --> 00:11:32,040 Speaker 1: sued and alleged that Sony should be held liable for 205 00:11:32,080 --> 00:11:35,560 Speaker 1: each and every instance of copyright infringement that resulted from 206 00:11:35,760 --> 00:11:38,880 Speaker 1: customers using Betamax in this way, and the case went 207 00:11:38,920 --> 00:11:41,240 Speaker 1: back and forth in the court system. Sony would win 208 00:11:41,400 --> 00:11:44,520 Speaker 1: one case, then Universal would get the decision reversed on appeal, 209 00:11:44,559 --> 00:11:47,800 Speaker 1: and then ultimately Sony submitted the case to the Supreme Court. 210 00:11:48,280 --> 00:11:50,920 Speaker 1: During that case, the court ruled that using a device 211 00:11:50,960 --> 00:11:54,160 Speaker 1: like a VCR for the purposes of time shifting, that is, 212 00:11:54,320 --> 00:11:57,760 Speaker 1: being able to watch media on your schedule, not on 213 00:11:57,880 --> 00:12:00,000 Speaker 1: a channel schedule. Because remember this is at a time 214 00:12:00,000 --> 00:12:03,959 Speaker 1: time where you were just watching broadcast television or cable TV, 215 00:12:04,400 --> 00:12:06,959 Speaker 1: and it was just TV schedules. There was no other 216 00:12:07,000 --> 00:12:09,560 Speaker 1: way to watch. There was no on demand watching. So 217 00:12:10,080 --> 00:12:13,360 Speaker 1: to use a VCR to record a program so that 218 00:12:13,400 --> 00:12:15,400 Speaker 1: you could watch it when you were actually home, the 219 00:12:15,440 --> 00:12:18,720 Speaker 1: court decided that was under fair use. They also found 220 00:12:18,760 --> 00:12:21,120 Speaker 1: that the argument that the Beta Max and devices like 221 00:12:21,160 --> 00:12:24,559 Speaker 1: it were made expressly for the purposes of copyright infringement 222 00:12:24,720 --> 00:12:28,160 Speaker 1: were false. That Beta Max could make copies, but it 223 00:12:28,200 --> 00:12:31,960 Speaker 1: could also just playback tapes that were sold in stores. 224 00:12:32,400 --> 00:12:34,920 Speaker 1: And one other interesting element of this case. One of 225 00:12:34,960 --> 00:12:38,480 Speaker 1: the people who provided testimony in support of VCR technology 226 00:12:38,679 --> 00:12:41,680 Speaker 1: was mister Rogers, as in Fred Rogers, the creator and 227 00:12:41,760 --> 00:12:45,080 Speaker 1: host of the Public television program mister Rogers neighborhood. He 228 00:12:45,240 --> 00:12:48,520 Speaker 1: liked VCRs just the way they were. Okay, we're going 229 00:12:48,600 --> 00:12:52,440 Speaker 1: to talk more about ULA's and the differences between digital 230 00:12:52,440 --> 00:12:55,120 Speaker 1: and physical media, but first let's take a quick break 231 00:12:55,160 --> 00:13:07,880 Speaker 1: to thank our sponsors. We're back. So before I was 232 00:13:07,880 --> 00:13:11,520 Speaker 1: talking about physical media. But digital media is different from 233 00:13:11,559 --> 00:13:14,240 Speaker 1: physical media, and there's no getting around it. It can 234 00:13:14,280 --> 00:13:17,920 Speaker 1: be incredibly easy to make copies of digital media, and 235 00:13:18,480 --> 00:13:21,559 Speaker 1: it isn't governed by the same set of physical restrictions 236 00:13:21,600 --> 00:13:25,160 Speaker 1: and limitations that we get with the physical stuff we buy. However, 237 00:13:25,200 --> 00:13:30,480 Speaker 1: there's also often a need to copy digital media legitimately. So, 238 00:13:30,559 --> 00:13:33,640 Speaker 1: for example, if you want to save a file to 239 00:13:33,760 --> 00:13:37,440 Speaker 1: your hard drive, that is copying, and you might have 240 00:13:37,559 --> 00:13:40,280 Speaker 1: to save something to a hard drive in order to 241 00:13:40,400 --> 00:13:42,880 Speaker 1: be able to use the thing you purchase, like some software. 242 00:13:43,200 --> 00:13:45,760 Speaker 1: Let's just talk about software in the good old days 243 00:13:45,760 --> 00:13:48,840 Speaker 1: of physical media, stuff like optical discs, you know, like 244 00:13:48,880 --> 00:13:51,640 Speaker 1: a CD. So let's say you've gone out to a 245 00:13:51,679 --> 00:13:54,640 Speaker 1: physical brick and mortar store because back in the day, 246 00:13:54,960 --> 00:13:58,520 Speaker 1: and you buy a copy of some software that you 247 00:13:58,600 --> 00:14:01,440 Speaker 1: want to use, and you purchase it legally, right, you've 248 00:14:01,559 --> 00:14:05,280 Speaker 1: spent your money on this in a legal retail establishment. 249 00:14:05,360 --> 00:14:08,400 Speaker 1: You come back, the software is on a compact disc, 250 00:14:08,760 --> 00:14:10,640 Speaker 1: and in order to use it, you actually need to 251 00:14:11,000 --> 00:14:14,960 Speaker 1: transfer the file from the compact disc to your hard 252 00:14:15,040 --> 00:14:16,719 Speaker 1: drive and then you're going to be able to use 253 00:14:16,720 --> 00:14:21,360 Speaker 1: the software. Except you're not actually pulling the file off 254 00:14:21,400 --> 00:14:24,240 Speaker 1: of the CD, like removing it from the CD and 255 00:14:24,280 --> 00:14:27,280 Speaker 1: then poorting it over to your computer. You're copying the 256 00:14:27,360 --> 00:14:31,120 Speaker 1: file from your CD to your computer. The file information 257 00:14:31,200 --> 00:14:34,600 Speaker 1: is still on the CD, right, it's in two places. Now, 258 00:14:34,600 --> 00:14:36,520 Speaker 1: it's on your computer and it's on the CD. But 259 00:14:36,560 --> 00:14:38,200 Speaker 1: you've had to do this in order to run the 260 00:14:38,240 --> 00:14:41,240 Speaker 1: software properly, rather than relying on your optical drive the 261 00:14:41,280 --> 00:14:44,840 Speaker 1: whole time. So here's a case where copying the file 262 00:14:45,040 --> 00:14:47,320 Speaker 1: is part of the process in order to use the 263 00:14:47,360 --> 00:14:51,040 Speaker 1: product as it was intended. So this is an allowable 264 00:14:51,400 --> 00:14:55,160 Speaker 1: use case. But making infinite copies of the file that's 265 00:14:55,200 --> 00:14:58,440 Speaker 1: on that CD and then distributing it to everyone you know, 266 00:14:58,680 --> 00:15:02,560 Speaker 1: obviously that's not a legitimate use case. So how does 267 00:15:02,600 --> 00:15:07,240 Speaker 1: the file's producer distinguish between these two scenarios. They do 268 00:15:07,320 --> 00:15:11,000 Speaker 1: it by creating a licensing agreement. So in this case, 269 00:15:11,040 --> 00:15:14,840 Speaker 1: the agreement would grant the licensee the customer, in other words, 270 00:15:15,320 --> 00:15:17,160 Speaker 1: the right to make a copy of the file for 271 00:15:17,200 --> 00:15:20,280 Speaker 1: the purposes of saving the information to their hard drive. 272 00:15:20,600 --> 00:15:22,800 Speaker 1: But this agreement would also spell out that this is 273 00:15:22,840 --> 00:15:26,200 Speaker 1: really the only acceptable instance for making a copy, with 274 00:15:26,480 --> 00:15:30,480 Speaker 1: maybe an exception for making a backup for the interest 275 00:15:30,520 --> 00:15:33,960 Speaker 1: of fair use. That's a possible other clause that could 276 00:15:34,000 --> 00:15:37,360 Speaker 1: be there. So the license agreement defines how the customer 277 00:15:37,400 --> 00:15:40,360 Speaker 1: can use the software legally, and the customer has to 278 00:15:40,400 --> 00:15:43,360 Speaker 1: acknowledge and agree to the license before they make use 279 00:15:43,360 --> 00:15:45,840 Speaker 1: of the software. Sometimes all they have to do is 280 00:15:45,920 --> 00:15:48,200 Speaker 1: just make use of the software, and that ends up 281 00:15:48,240 --> 00:15:51,720 Speaker 1: being an acknowledgment an agreement to the EULA right like 282 00:15:52,320 --> 00:15:54,320 Speaker 1: they may not have to actually click on a button 283 00:15:54,440 --> 00:15:57,000 Speaker 1: or anything. It may be that the EULA spells out 284 00:15:57,040 --> 00:16:00,640 Speaker 1: that by using the software, it intrinsically means the customer 285 00:16:00,640 --> 00:16:04,360 Speaker 1: has agreed to the terms, and the concept is that 286 00:16:04,480 --> 00:16:07,440 Speaker 1: all parties are aware of and agreed to these terms 287 00:16:07,440 --> 00:16:10,000 Speaker 1: of use, and then things can go on their own 288 00:16:10,040 --> 00:16:12,520 Speaker 1: merry way. One thing to keep in mind is that 289 00:16:12,680 --> 00:16:16,280 Speaker 1: because of the license issue, what we're talking about is 290 00:16:16,280 --> 00:16:20,920 Speaker 1: not ownership, right, it's access. That's what the license grants 291 00:16:21,000 --> 00:16:24,720 Speaker 1: the licensee. It grants them access to whatever it is 292 00:16:24,880 --> 00:16:28,320 Speaker 1: that's licensed, but they don't own it. The person that 293 00:16:28,800 --> 00:16:32,640 Speaker 1: or entity that sold it owns it. So even if 294 00:16:32,680 --> 00:16:35,360 Speaker 1: you have a copy sitting on your computer, you don't 295 00:16:35,400 --> 00:16:38,800 Speaker 1: own that copy. You're just licensed to access it. That's 296 00:16:38,840 --> 00:16:42,240 Speaker 1: the foundational idea behind a ULAP. It protects the producer 297 00:16:42,280 --> 00:16:45,560 Speaker 1: and holds customers accountable for accessing the licensed material in 298 00:16:45,600 --> 00:16:48,760 Speaker 1: a very specific and approved way. That's a real kicker, 299 00:16:48,800 --> 00:16:52,760 Speaker 1: isn't it, Because being able to access material means that 300 00:16:52,800 --> 00:16:56,400 Speaker 1: the producer can actually define the rules that favor them. 301 00:16:56,560 --> 00:16:59,080 Speaker 1: I mean, they're the only party that's making up these rules. 302 00:16:59,160 --> 00:17:02,360 Speaker 1: This is not a negociation. It's not a process where 303 00:17:02,640 --> 00:17:07,840 Speaker 1: collaboratively buyer and seller come together and they heckle and 304 00:17:07,880 --> 00:17:10,679 Speaker 1: they come to an agreement. This is where the seller 305 00:17:10,720 --> 00:17:15,000 Speaker 1: gets to dictate all the terms, and they can redefine 306 00:17:15,040 --> 00:17:18,840 Speaker 1: the rules with little to no warning. They can change 307 00:17:18,880 --> 00:17:21,879 Speaker 1: the rules after people have already agreed to a different 308 00:17:21,920 --> 00:17:24,920 Speaker 1: set of rules. That's how we get situations like what's 309 00:17:24,920 --> 00:17:29,760 Speaker 1: happening with Roku that you as a customer, maybe you've 310 00:17:29,800 --> 00:17:32,760 Speaker 1: read the whole eula top to bottom, and maybe you're like, 311 00:17:33,280 --> 00:17:35,119 Speaker 1: there's some stuff in here I don't really like, but 312 00:17:35,320 --> 00:17:38,080 Speaker 1: overall I can agree to this, and you move forward, 313 00:17:38,400 --> 00:17:41,640 Speaker 1: and then they change the rules of the agreement on you, 314 00:17:42,240 --> 00:17:45,280 Speaker 1: and the next thing, you know, because of the nature 315 00:17:45,320 --> 00:17:48,000 Speaker 1: of you las, you are stuck with an agreement that 316 00:17:48,080 --> 00:17:54,080 Speaker 1: you no longer really like or or feel is warranted. 317 00:17:54,680 --> 00:17:57,600 Speaker 1: One example brought up in a book titled The End 318 00:17:57,640 --> 00:18:02,400 Speaker 1: of Ownership by Aaron Parson Now and Jason Schultz, which 319 00:18:02,440 --> 00:18:05,760 Speaker 1: I actually purchased for this episode. Great book, by the way, 320 00:18:06,040 --> 00:18:09,400 Speaker 1: I recommend checking it out. But one case is a 321 00:18:09,440 --> 00:18:15,240 Speaker 1: pretty infamous one with Amazon and George Orwell's nineteen eighty four. Now, 322 00:18:15,280 --> 00:18:18,200 Speaker 1: the fact that it involves nineteen eighty four in particular 323 00:18:18,760 --> 00:18:22,439 Speaker 1: is coincidental, but it's still kind of ironic. So what 324 00:18:22,640 --> 00:18:26,120 Speaker 1: happened was that you had some people who purchased an 325 00:18:26,160 --> 00:18:30,120 Speaker 1: ebook copy of the classic dystopian novel nineteen eighty four 326 00:18:30,160 --> 00:18:33,280 Speaker 1: by George Orwell, which, among other things, warrens of the 327 00:18:33,359 --> 00:18:37,400 Speaker 1: dangers of authoritarian governments and mass surveillance and the control 328 00:18:37,480 --> 00:18:40,480 Speaker 1: of information. But then it turned out that the vendor 329 00:18:40,560 --> 00:18:43,800 Speaker 1: that was selling this ebook over at Amazon didn't actually 330 00:18:43,920 --> 00:18:47,760 Speaker 1: have legal permission to do that. So what did Amazon 331 00:18:47,880 --> 00:18:52,440 Speaker 1: do Well, it pulled the digital copy from the people 332 00:18:52,440 --> 00:18:55,479 Speaker 1: who purchased it, and it then issued a refund. So 333 00:18:55,520 --> 00:18:58,040 Speaker 1: it meant people would turn on an ebook reader like 334 00:18:58,080 --> 00:19:01,240 Speaker 1: a Kindle and then suddenly they see that the copy 335 00:19:01,280 --> 00:19:04,320 Speaker 1: of nineteen eighty four that they had purchased was gone. 336 00:19:04,920 --> 00:19:07,800 Speaker 1: And again, very ironic. It looks like the control of information. 337 00:19:07,880 --> 00:19:11,280 Speaker 1: It looks like the thing you bought got reclaimed. And 338 00:19:11,600 --> 00:19:13,840 Speaker 1: when you think about it, that's pretty wild, right. I mean, 339 00:19:13,840 --> 00:19:16,640 Speaker 1: if you had bought a copy of a book from 340 00:19:16,640 --> 00:19:20,480 Speaker 1: a bookstore, like a physical book, you wouldn't expect someone 341 00:19:20,520 --> 00:19:23,200 Speaker 1: from that bookstore to show up at your home to say, hey, 342 00:19:23,800 --> 00:19:26,359 Speaker 1: turns out the publisher of that book didn't have the 343 00:19:26,440 --> 00:19:28,920 Speaker 1: right to publish it, so I'm gonna have to take 344 00:19:28,960 --> 00:19:32,159 Speaker 1: it back. That would be crazy. And yet due to 345 00:19:32,240 --> 00:19:35,720 Speaker 1: the nature of digital distribution, this can and did happen 346 00:19:35,800 --> 00:19:38,879 Speaker 1: with Amazon and nineteen eighty four. So a lot of 347 00:19:38,880 --> 00:19:41,040 Speaker 1: news outlets really had a field day about this, and 348 00:19:41,119 --> 00:19:44,760 Speaker 1: I get it. I mean, it's very like poetic and ironic. 349 00:19:45,080 --> 00:19:47,919 Speaker 1: But Amazon was in a tough place because the vendor 350 00:19:48,000 --> 00:19:50,200 Speaker 1: did not have the right to sell the book, which 351 00:19:50,240 --> 00:19:53,800 Speaker 1: meant the rightful parties that could sell the book would 352 00:19:53,840 --> 00:19:55,879 Speaker 1: have a really good reason to go after Amazon for 353 00:19:55,960 --> 00:19:58,879 Speaker 1: allowing it to all happen if Amazon didn't do something 354 00:19:58,920 --> 00:20:02,199 Speaker 1: about it. As a modern eula can be structured to 355 00:20:02,280 --> 00:20:04,600 Speaker 1: allow for this kind of thing, where a company can 356 00:20:04,760 --> 00:20:08,640 Speaker 1: reclaim digital material even if you thought you owned it. 357 00:20:08,880 --> 00:20:12,840 Speaker 1: So another great example would be if you purchased a 358 00:20:12,920 --> 00:20:16,600 Speaker 1: digital title on a service like a platform. It's one 359 00:20:16,640 --> 00:20:20,920 Speaker 1: thing to be a subscriber to say Netflix, for example, 360 00:20:21,200 --> 00:20:23,560 Speaker 1: it's another thing. Let's say that you are on Amazon 361 00:20:23,640 --> 00:20:28,399 Speaker 1: Prime and you've purchased a digital copy of a movie. 362 00:20:28,920 --> 00:20:33,240 Speaker 1: Could it be possible for Amazon to revoke that access 363 00:20:33,280 --> 00:20:36,320 Speaker 1: to that digital title in the future. Absolutely, that could happen. 364 00:20:37,000 --> 00:20:39,359 Speaker 1: You know, you could purchase a DVD of the movie, 365 00:20:39,400 --> 00:20:42,479 Speaker 1: and you've got that DVD forever, right until the DVD 366 00:20:42,760 --> 00:20:44,560 Speaker 1: degrades to a point where you can't use it or 367 00:20:44,600 --> 00:20:46,920 Speaker 1: you don't have a player that can play it anymore. 368 00:20:47,200 --> 00:20:49,159 Speaker 1: They could still go obsolete that way, but otherwise you 369 00:20:49,200 --> 00:20:52,840 Speaker 1: still have access to it digitally. If something were to happen, 370 00:20:52,960 --> 00:20:56,280 Speaker 1: Amazon could potentially just remove it from your library and 371 00:20:56,320 --> 00:21:00,879 Speaker 1: now you can't access it anymore. That's a possibilit So 372 00:21:01,760 --> 00:21:06,280 Speaker 1: the license always has conditions, and if you violate those conditions, 373 00:21:06,280 --> 00:21:08,359 Speaker 1: then you could lose access to the thing you thought 374 00:21:08,960 --> 00:21:11,679 Speaker 1: you had purchased. It can be taken away from you, 375 00:21:11,920 --> 00:21:14,080 Speaker 1: and those conditions can change pretty much at the whim 376 00:21:14,119 --> 00:21:16,199 Speaker 1: of the company that's behind the thing. And it's kind 377 00:21:16,240 --> 00:21:19,080 Speaker 1: of like what Darth Vader said to Lando Calrissian, I 378 00:21:19,119 --> 00:21:22,000 Speaker 1: am altering the deal. Pray I do not alter it 379 00:21:22,040 --> 00:21:26,399 Speaker 1: any further. This is really an issue with digital media 380 00:21:26,440 --> 00:21:29,719 Speaker 1: in general, not just because of ULA's So again, I 381 00:21:29,760 --> 00:21:33,239 Speaker 1: was talking about Netflix and licensing agreements. Well, there are 382 00:21:33,280 --> 00:21:36,440 Speaker 1: license agreements between Netflix and various studios out there, right, 383 00:21:36,480 --> 00:21:39,159 Speaker 1: So you have no guarantee that a title that you 384 00:21:39,240 --> 00:21:42,879 Speaker 1: really like is going to remain on any given streaming service. 385 00:21:43,040 --> 00:21:45,119 Speaker 1: One day it might be there, and then the next 386 00:21:45,200 --> 00:21:47,840 Speaker 1: day it could be gone because of some agreement made 387 00:21:47,840 --> 00:21:50,280 Speaker 1: between the service and the company that owns the rights 388 00:21:50,320 --> 00:21:53,439 Speaker 1: to that title, and it expired and wasn't renewed. I 389 00:21:53,480 --> 00:21:57,119 Speaker 1: always think of that Mitchell and Web Look, which is 390 00:21:57,280 --> 00:22:00,919 Speaker 1: a British comedy sketch show with Rob Web and David Mitchell. 391 00:22:01,200 --> 00:22:04,439 Speaker 1: I found that on Netflix years ago and fell in 392 00:22:04,480 --> 00:22:08,119 Speaker 1: love with that series, loved it and one day the 393 00:22:08,160 --> 00:22:12,679 Speaker 1: series just disappeared. At one point, just the third season disappeared. 394 00:22:12,720 --> 00:22:15,200 Speaker 1: Seasons one, two, and four were still there, but three 395 00:22:15,320 --> 00:22:17,280 Speaker 1: went away, and then eventually all of them went away. 396 00:22:17,480 --> 00:22:19,640 Speaker 1: And then I looked to see where I could get 397 00:22:19,680 --> 00:22:22,120 Speaker 1: access to it, and I couldn't anywhere in America. There 398 00:22:22,119 --> 00:22:26,320 Speaker 1: were no legal ways to access the material. I eventually 399 00:22:26,400 --> 00:22:30,679 Speaker 1: had to purchase the English DVDs and get a region 400 00:22:30,760 --> 00:22:34,320 Speaker 1: free player so that I could watch the show because 401 00:22:34,320 --> 00:22:36,639 Speaker 1: I no longer had access to it. And that's just 402 00:22:37,119 --> 00:22:40,399 Speaker 1: the way it is. You don't own the media. For 403 00:22:40,520 --> 00:22:44,080 Speaker 1: media that exists on servers, Like on an online video game, 404 00:22:44,240 --> 00:22:46,840 Speaker 1: a company might choose to shut those servers down in 405 00:22:46,960 --> 00:22:51,800 Speaker 1: order to reduce costs, and effectively that kills the game. 406 00:22:51,960 --> 00:22:53,879 Speaker 1: So even if you had purchased a copy of this 407 00:22:54,000 --> 00:22:57,119 Speaker 1: game at full retail price when it came out, you 408 00:22:57,119 --> 00:22:59,399 Speaker 1: wouldn't be able to play that game anymore because the 409 00:22:59,440 --> 00:23:02,200 Speaker 1: servers that existed that allowed you to play that game 410 00:23:02,560 --> 00:23:05,439 Speaker 1: are now offline. Like that's a real problem, not just 411 00:23:05,480 --> 00:23:09,159 Speaker 1: for like multiplayer online games, which that's pretty obvious, right. 412 00:23:09,200 --> 00:23:12,560 Speaker 1: If it's an online game, then if the servers go down, 413 00:23:12,600 --> 00:23:15,640 Speaker 1: there's no server to log into, you can't play anymore. 414 00:23:15,800 --> 00:23:18,720 Speaker 1: But there are single player games that, as part of 415 00:23:18,760 --> 00:23:23,760 Speaker 1: the digital rights management system, require you to contact a 416 00:23:23,800 --> 00:23:26,760 Speaker 1: specific server that verifies the copy of the game you're 417 00:23:26,760 --> 00:23:30,680 Speaker 1: playing is a legitimate copy. And if those servers go down, 418 00:23:31,240 --> 00:23:34,160 Speaker 1: you have a legitimate copy of a single player game 419 00:23:34,200 --> 00:23:39,080 Speaker 1: that's not an online experience that cannot work anymore because 420 00:23:39,119 --> 00:23:42,120 Speaker 1: there's no longer a server for it to ping to 421 00:23:42,119 --> 00:23:44,840 Speaker 1: to verify that your copy is legitimate. This is a 422 00:23:44,880 --> 00:23:48,120 Speaker 1: real problem. And because you never actually owned a copy 423 00:23:48,240 --> 00:23:50,480 Speaker 1: of the game, you really just owned a license to 424 00:23:50,600 --> 00:23:55,879 Speaker 1: access that game under certain conditions, you're kind of stuck. Okay, 425 00:23:55,920 --> 00:23:59,760 Speaker 1: we've got a ton more stuff to talk about, including 426 00:24:00,119 --> 00:24:04,159 Speaker 1: an actual court case, but before we get further into that, 427 00:24:04,320 --> 00:24:16,680 Speaker 1: let's take another quick break to thank our sponsors. All Right, 428 00:24:16,760 --> 00:24:19,639 Speaker 1: So there's a piece I read for this that I 429 00:24:19,680 --> 00:24:22,359 Speaker 1: recommend y'all check out. Jason Kobler wrote a piece for 430 00:24:22,440 --> 00:24:27,360 Speaker 1: Motherboard and it's titled Corporations use end user license agreements 431 00:24:27,400 --> 00:24:30,480 Speaker 1: to create a parallel legal system, And the title really 432 00:24:30,520 --> 00:24:33,199 Speaker 1: sums things up pretty nicely. So, in order to secure 433 00:24:33,280 --> 00:24:36,320 Speaker 1: the protections that the company desires, and in order to 434 00:24:36,400 --> 00:24:41,040 Speaker 1: force customers into behaviors that ultimately benefit the company. These 435 00:24:41,200 --> 00:24:45,320 Speaker 1: organizations craft legal agreements that restrict customer rights and allow 436 00:24:45,359 --> 00:24:49,199 Speaker 1: for practices that aren't otherwise covered by law. The traditional 437 00:24:49,240 --> 00:24:53,800 Speaker 1: aspects of property law do not apply. Right. We've talked 438 00:24:53,800 --> 00:24:57,720 Speaker 1: about that, because there are differences between physical and digital 439 00:24:57,960 --> 00:25:01,280 Speaker 1: types of media. The rights of property ownership you would 440 00:25:01,480 --> 00:25:05,440 Speaker 1: originally assume would apply to you, they don't apply. Moreover, 441 00:25:05,520 --> 00:25:08,439 Speaker 1: these agreements can be so long and sometimes filled with 442 00:25:08,520 --> 00:25:11,360 Speaker 1: jargon that customers are not incentivized to read through it all, 443 00:25:11,400 --> 00:25:14,920 Speaker 1: so the deck is stacked in favor of the companies. 444 00:25:15,280 --> 00:25:18,840 Speaker 1: Sometimes you're not even allowed to read an agreement until 445 00:25:18,840 --> 00:25:21,240 Speaker 1: you've actually gone through the trouble of making the purchase. 446 00:25:21,680 --> 00:25:24,920 Speaker 1: So it's you can't read before you decide to buy, 447 00:25:25,359 --> 00:25:27,719 Speaker 1: it's when you buy, and then you are able to 448 00:25:27,760 --> 00:25:30,680 Speaker 1: access the agreement, So you don't necessarily know what you're 449 00:25:30,680 --> 00:25:35,320 Speaker 1: getting into until after money has already changed hands. Maybe 450 00:25:35,359 --> 00:25:37,720 Speaker 1: then you would be able to secure a refund, but 451 00:25:38,080 --> 00:25:41,040 Speaker 1: with digital property, that's not always a guaranteed, nor is 452 00:25:41,040 --> 00:25:44,920 Speaker 1: it always easy, right Like, some platforms make it easier 453 00:25:44,960 --> 00:25:49,160 Speaker 1: than others, but it's not always easy to get a refund. 454 00:25:49,359 --> 00:25:53,080 Speaker 1: If by the way that you're not able to read 455 00:25:53,080 --> 00:25:55,400 Speaker 1: the agreement until after you've made a purchase. You are 456 00:25:55,440 --> 00:25:58,320 Speaker 1: supposed to be able to get a refund because it 457 00:25:58,359 --> 00:26:01,600 Speaker 1: would be ludicrous otherwise, like you don't know what you're 458 00:26:01,600 --> 00:26:04,160 Speaker 1: getting into until you've made a purchase. Then you're told 459 00:26:04,240 --> 00:26:07,080 Speaker 1: too late what the deal is. And if you said, well, 460 00:26:07,400 --> 00:26:09,840 Speaker 1: I don't accept those terms, you have to be able 461 00:26:09,880 --> 00:26:12,280 Speaker 1: to get a refund or else what's the point. So 462 00:26:12,680 --> 00:26:15,520 Speaker 1: Coupler points out more than a few cases in which 463 00:26:15,560 --> 00:26:19,200 Speaker 1: companies used a EULA to step well beyond just defining 464 00:26:19,320 --> 00:26:22,199 Speaker 1: terms of ownership or use. So, for example, there's the 465 00:26:22,200 --> 00:26:25,200 Speaker 1: case of John Deere. That's the company that's best known 466 00:26:25,240 --> 00:26:28,280 Speaker 1: for making farming equipment like tractors. And we've talked about 467 00:26:28,320 --> 00:26:31,359 Speaker 1: this company a lot in episodes about the right to repair, 468 00:26:31,520 --> 00:26:33,879 Speaker 1: which we'll talk about in a second. John Deere is 469 00:26:33,920 --> 00:26:36,200 Speaker 1: a company that for a very long time has taken 470 00:26:36,200 --> 00:26:39,600 Speaker 1: steps to restrict how and where farmers can maintain and 471 00:26:39,680 --> 00:26:42,479 Speaker 1: repair their own equipment. So the company wants to have 472 00:26:42,520 --> 00:26:46,159 Speaker 1: control over that whole system, much like Apple does with 473 00:26:46,320 --> 00:26:49,800 Speaker 1: its products, and to that end, the EULA with John 474 00:26:49,840 --> 00:26:53,080 Speaker 1: Deere equipment included clauses that said farmers were to take 475 00:26:53,119 --> 00:26:57,200 Speaker 1: their equipment only to official John Deere licensed repair shops. 476 00:26:57,280 --> 00:26:59,720 Speaker 1: And if you happen to be a farmer who lived 477 00:26:59,760 --> 00:27:02,200 Speaker 1: a really long way from such a place, and then 478 00:27:02,200 --> 00:27:05,119 Speaker 1: your tractor broke down, you'd really be up the creek, 479 00:27:05,200 --> 00:27:07,800 Speaker 1: because you know you've made this agreement not to take 480 00:27:07,800 --> 00:27:10,119 Speaker 1: your tractor to like the shop down the road that 481 00:27:10,440 --> 00:27:14,720 Speaker 1: isn't a licensed John Deere repair shop. ULA's were not 482 00:27:14,800 --> 00:27:18,000 Speaker 1: the only weapon John Deere used to achieve this ecosystem, 483 00:27:18,000 --> 00:27:20,520 Speaker 1: but it was kind of part of the arsenal. Another 484 00:27:20,600 --> 00:27:23,480 Speaker 1: example that Kobler sites in his article was for you 485 00:27:23,640 --> 00:27:26,840 Speaker 1: torrant or however you'd like to pronounce it. So this 486 00:27:27,080 --> 00:27:30,439 Speaker 1: was or is a bit torrent client, and torrents already 487 00:27:30,520 --> 00:27:32,639 Speaker 1: have their own shaky history. A lot of people have 488 00:27:32,760 --> 00:27:37,040 Speaker 1: used torrents to trade in pirated material. But this torrent 489 00:27:37,160 --> 00:27:40,919 Speaker 1: client up the ante back in twenty fifteen when users 490 00:27:40,960 --> 00:27:45,240 Speaker 1: were prompted to accept an agreement before actually using the service. 491 00:27:45,440 --> 00:27:48,280 Speaker 1: This agreement said that users would allow for the installation 492 00:27:48,359 --> 00:27:52,760 Speaker 1: of a cryptocurrency minor on their own machines. So if 493 00:27:52,760 --> 00:27:55,040 Speaker 1: you didn't read the agreement, let's say you signed up 494 00:27:55,080 --> 00:27:58,400 Speaker 1: to the U torrant client. Most folks did not bother 495 00:27:58,520 --> 00:28:00,960 Speaker 1: to read this agreement. I wouldn't know that you had 496 00:28:01,040 --> 00:28:04,600 Speaker 1: just agreed to join a cryptocurrency mining operation and that 497 00:28:04,680 --> 00:28:08,160 Speaker 1: your computer's resources were going to be borrowed for that purpose. 498 00:28:08,680 --> 00:28:13,240 Speaker 1: And of course you're not mining cryptocurrency for yourself. Instead, 499 00:28:13,760 --> 00:28:17,680 Speaker 1: your computational resources were going to a much larger operation 500 00:28:17,840 --> 00:28:21,600 Speaker 1: that benefits the U Torrent folks, which is pretty sneaky, 501 00:28:22,000 --> 00:28:26,560 Speaker 1: but it was in the ULA. So how do ULA's 502 00:28:26,640 --> 00:28:32,360 Speaker 1: fare in court? Well, generally speaking, they do pretty darn well. Courts, 503 00:28:32,440 --> 00:28:35,040 Speaker 1: at least here in the United States, have favored companies 504 00:28:35,400 --> 00:28:39,040 Speaker 1: more than they have favored customers traditionally. So, for example, 505 00:28:39,280 --> 00:28:42,640 Speaker 1: there was a court case called Feldman versus Google Incorporated 506 00:28:43,040 --> 00:28:47,000 Speaker 1: in two thousand and seven. The plaintiff, Feldman, was a 507 00:28:47,120 --> 00:28:51,560 Speaker 1: lawyer who had purchased ads from Google, and Feldman would 508 00:28:51,600 --> 00:28:54,520 Speaker 1: owe Google money whenever people would click on one of 509 00:28:54,560 --> 00:28:58,560 Speaker 1: his ads. But Feldman said he was victim of click fraud, 510 00:28:58,880 --> 00:29:01,800 Speaker 1: that folks who had no interest in retaining his services 511 00:29:02,000 --> 00:29:04,880 Speaker 1: were clicking on his ads anyway, and they were driving 512 00:29:04,920 --> 00:29:08,400 Speaker 1: up costs and costing him money. So Feldman filed a 513 00:29:08,520 --> 00:29:12,640 Speaker 1: lawsuit in Pennsylvania and said that in part, he wasn't 514 00:29:12,680 --> 00:29:19,000 Speaker 1: given appropriate notice of Google's clauses before entering into this arrangement. 515 00:29:19,360 --> 00:29:22,920 Speaker 1: Google moved to have the case tried in Santa Clara County, California, 516 00:29:22,960 --> 00:29:26,120 Speaker 1: because the EULA actually included a statement that said all 517 00:29:26,120 --> 00:29:29,440 Speaker 1: disputes were to be resolved there, and the EULA also 518 00:29:29,440 --> 00:29:33,080 Speaker 1: included passages that provided protection against legal liability in the 519 00:29:33,120 --> 00:29:35,480 Speaker 1: case of click fraud. Now, Feldman said he did not 520 00:29:35,640 --> 00:29:38,480 Speaker 1: have appropriate notice to this agreement and that there was 521 00:29:38,520 --> 00:29:41,880 Speaker 1: no mutual assent upon the agreement and thus it would 522 00:29:41,880 --> 00:29:44,600 Speaker 1: make it invalid as a contract. But the court found 523 00:29:44,680 --> 00:29:47,360 Speaker 1: that Feldman had to click the agree button in order 524 00:29:47,360 --> 00:29:49,400 Speaker 1: to use the service in the first place, and that 525 00:29:49,480 --> 00:29:53,880 Speaker 1: this amounted to signing a contract agreement, and so Feldman's 526 00:29:53,920 --> 00:29:57,480 Speaker 1: case was unsuccessful. That he apparently didn't read the agreement 527 00:29:57,560 --> 00:30:01,600 Speaker 1: first really fell on him on Google. He also had 528 00:30:01,760 --> 00:30:04,800 Speaker 1: argued that it was invalid because there was no information 529 00:30:04,840 --> 00:30:08,320 Speaker 1: about pricing in that agreement, but the court found that 530 00:30:08,560 --> 00:30:13,560 Speaker 1: there were enough indications of the process to determine pricing 531 00:30:14,040 --> 00:30:18,440 Speaker 1: that not including the pricing itself didn't matter, because what 532 00:30:18,560 --> 00:30:21,720 Speaker 1: the EULA did have in it was the essentially the 533 00:30:21,720 --> 00:30:26,120 Speaker 1: formula to calculate what pricing would be, so Feldman ultimately 534 00:30:26,160 --> 00:30:30,000 Speaker 1: lost this case. Now, some contract lawyers and some other 535 00:30:30,040 --> 00:30:34,040 Speaker 1: folks have pointed out that traditionally, with most contracts, you 536 00:30:34,160 --> 00:30:36,800 Speaker 1: do have a negotiation period so you can come to 537 00:30:36,960 --> 00:30:40,160 Speaker 1: terms that are agreeable to both parties. But in the 538 00:30:40,200 --> 00:30:44,400 Speaker 1: case of ayula, there is no negotiation. There's no back 539 00:30:44,440 --> 00:30:47,440 Speaker 1: and forth traditionally, so instead you either agree to the 540 00:30:47,560 --> 00:30:50,800 Speaker 1: terms or you don't, and if you don't, you don't 541 00:30:50,920 --> 00:30:53,320 Speaker 1: use the product or service. Those are really your options. 542 00:30:53,600 --> 00:30:56,160 Speaker 1: There's no way for you to get more favorable terms 543 00:30:56,200 --> 00:30:59,640 Speaker 1: in most cases. But obviously the other party, the company, 544 00:30:59,680 --> 00:31:02,320 Speaker 1: can change things and ask you to agree to altered 545 00:31:02,480 --> 00:31:06,280 Speaker 1: terms of service, which is an unbalanced power dynamic going 546 00:31:06,320 --> 00:31:09,320 Speaker 1: on here. Now, there are some instances where a court 547 00:31:09,480 --> 00:31:12,760 Speaker 1: could find in favor of the consumer. For example, let's 548 00:31:12,800 --> 00:31:15,480 Speaker 1: say a company makes a product with a eula attached 549 00:31:15,480 --> 00:31:17,960 Speaker 1: to it. The customers are not able to read the 550 00:31:18,000 --> 00:31:22,120 Speaker 1: eula until after they've purchased the product, so called shrink 551 00:31:22,120 --> 00:31:26,280 Speaker 1: wrap eula. A customer buys the product, then they're able 552 00:31:26,360 --> 00:31:29,040 Speaker 1: to read the eula. The customer then objects to the 553 00:31:29,080 --> 00:31:31,960 Speaker 1: eula and they want to return the product for a refund. 554 00:31:32,200 --> 00:31:34,960 Speaker 1: If there is no reasonable time frame for them to 555 00:31:35,040 --> 00:31:38,120 Speaker 1: make such a return, a court could find in favor 556 00:31:38,160 --> 00:31:41,080 Speaker 1: of the customer because they'd say, like, your EULA doesn't 557 00:31:41,400 --> 00:31:44,479 Speaker 1: isn't enforceable, because there's no way for the customer to 558 00:31:45,080 --> 00:31:48,800 Speaker 1: object to the EULA and have it mean anything. If 559 00:31:48,840 --> 00:31:51,320 Speaker 1: the company does give a reasonable amount of time, let's 560 00:31:51,320 --> 00:31:54,280 Speaker 1: say that they give you thirty days to make a return. 561 00:31:54,680 --> 00:31:58,480 Speaker 1: If you object to the ula and if you fail 562 00:31:58,760 --> 00:32:01,160 Speaker 1: to return it within the thirty days, then the court 563 00:32:01,200 --> 00:32:03,320 Speaker 1: is probably going to find in favor of the company 564 00:32:03,320 --> 00:32:06,880 Speaker 1: because they'd say, well, they gave you a reasonable timeframe 565 00:32:06,920 --> 00:32:10,680 Speaker 1: to request a refund, and if you didn't respond within 566 00:32:10,720 --> 00:32:13,880 Speaker 1: that timeframe, that's on you. If a customer can make 567 00:32:13,920 --> 00:32:15,920 Speaker 1: a case that the terms of a EULA are too 568 00:32:16,040 --> 00:32:19,800 Speaker 1: vague or too complicated for a reasonable person to understand them, 569 00:32:20,160 --> 00:32:22,920 Speaker 1: then the courts could also find that that particular EULA 570 00:32:23,160 --> 00:32:26,040 Speaker 1: is unenforceable. So that's one reason a company might be 571 00:32:26,080 --> 00:32:29,520 Speaker 1: discouraged from obfuscating things with a lot of legal jargon, 572 00:32:29,760 --> 00:32:33,040 Speaker 1: because it can come back to haunt them if someone 573 00:32:33,160 --> 00:32:36,960 Speaker 1: bothers to bring a lawsuit against them. Lawsuits are really expensive, though, 574 00:32:37,320 --> 00:32:40,640 Speaker 1: so unless the customer is really determined to stick it 575 00:32:40,640 --> 00:32:43,640 Speaker 1: to this company, it's not likely to happen. But if 576 00:32:43,680 --> 00:32:47,440 Speaker 1: it does happen, the consumer can show, hey, this EULA 577 00:32:48,080 --> 00:32:53,120 Speaker 1: is purposefully complex and vague. A court might find that 578 00:32:53,160 --> 00:32:56,640 Speaker 1: particular eula to be unenforceable, but you know that's a 579 00:32:56,680 --> 00:33:01,040 Speaker 1: long shot. It's such a huge undertaking and it's so expensive. 580 00:33:01,800 --> 00:33:06,479 Speaker 1: So maybe companies could avoid making things confusing with legal language, 581 00:33:06,480 --> 00:33:09,640 Speaker 1: but they could still bury consumers in ulas that are 582 00:33:09,760 --> 00:33:13,440 Speaker 1: thousands of words long, and it might not be complicated 583 00:33:13,560 --> 00:33:18,800 Speaker 1: or vague. It might just be dull and exhausting. So again, 584 00:33:19,720 --> 00:33:21,960 Speaker 1: no one really bothers to read them. But if they 585 00:33:21,960 --> 00:33:23,880 Speaker 1: were to try and challenge them in court, the court 586 00:33:23,920 --> 00:33:26,360 Speaker 1: might say, well, yeah, it's long and it's boring, but 587 00:33:26,400 --> 00:33:31,480 Speaker 1: nothing here is vague or complicated, so technically it stands. 588 00:33:32,680 --> 00:33:36,000 Speaker 1: There are also social changes that are pushing back against 589 00:33:36,160 --> 00:33:39,760 Speaker 1: some EULAs. I mentioned John Deere earlier. That's a company 590 00:33:39,760 --> 00:33:42,360 Speaker 1: that's been affected by the recent right to repair movement. 591 00:33:42,800 --> 00:33:45,640 Speaker 1: Advocates have really pushed for laws that give consumers more 592 00:33:45,680 --> 00:33:49,320 Speaker 1: control over how they maintain and repair their purchases, and 593 00:33:49,360 --> 00:33:52,840 Speaker 1: they have pushed back against this closed ecosystem approach used 594 00:33:52,880 --> 00:33:55,720 Speaker 1: by companies like John Deere and Apple, and there's been 595 00:33:55,760 --> 00:33:58,760 Speaker 1: progress in several states here in the United States, though 596 00:33:58,800 --> 00:34:02,160 Speaker 1: it's not really a nationwide trend as of yet. But 597 00:34:02,240 --> 00:34:04,560 Speaker 1: obviously this is a really big step. You know, getting 598 00:34:04,920 --> 00:34:08,200 Speaker 1: states to create new legislation that makes certain passages in 599 00:34:08,239 --> 00:34:11,319 Speaker 1: certain EULAs unenforceable isn't the sort of thing that the 600 00:34:11,360 --> 00:34:15,759 Speaker 1: average person can really do themselves. It requires much larger movements. 601 00:34:15,880 --> 00:34:19,080 Speaker 1: So again, when it comes to the average consumer, it 602 00:34:19,160 --> 00:34:21,879 Speaker 1: often feels like there's not much you can do, and 603 00:34:21,920 --> 00:34:26,000 Speaker 1: that's usually actually the case. Now. I know I've said 604 00:34:26,040 --> 00:34:29,719 Speaker 1: a lot of negative stuff about ULA's in this episode, 605 00:34:29,719 --> 00:34:33,120 Speaker 1: but they do actually serve a purpose. Ulas are needed 606 00:34:33,160 --> 00:34:37,759 Speaker 1: to cover gaps in intellectual property law, particularly here in 607 00:34:37,360 --> 00:34:43,239 Speaker 1: the digital space. They aren't all malicious or overbearing, and 608 00:34:43,280 --> 00:34:46,040 Speaker 1: you could argue that they actually stand as evidence that 609 00:34:46,160 --> 00:34:50,399 Speaker 1: legislators need to make new property ownership laws that cover 610 00:34:50,920 --> 00:34:55,160 Speaker 1: the digital space and modern technologies, and that these laws 611 00:34:55,239 --> 00:34:58,799 Speaker 1: would then supersede EULAs or just make them moot. In fact, 612 00:34:58,840 --> 00:35:01,200 Speaker 1: a lot of people have argued for this that we 613 00:35:01,320 --> 00:35:05,520 Speaker 1: need new property laws that would cover things in the 614 00:35:05,719 --> 00:35:09,879 Speaker 1: digital realm, and that This would really go a long 615 00:35:09,920 --> 00:35:14,279 Speaker 1: way to solving these issues. But it's really hard to 616 00:35:14,280 --> 00:35:16,799 Speaker 1: get a body like the US Congress to take up 617 00:35:16,840 --> 00:35:20,719 Speaker 1: matters of property ownership. It just isn't something that is 618 00:35:20,760 --> 00:35:24,319 Speaker 1: a super high priority right now, So I wouldn't hold 619 00:35:24,320 --> 00:35:26,920 Speaker 1: my breath for it anyway. That about sums it up 620 00:35:26,920 --> 00:35:31,440 Speaker 1: for youula's except for this bit, should you read every 621 00:35:31,520 --> 00:35:35,200 Speaker 1: EULA before you agree to it? Well, I honestly can't 622 00:35:35,239 --> 00:35:37,480 Speaker 1: tell you that it would do you much good. You 623 00:35:37,560 --> 00:35:39,799 Speaker 1: might have a better understanding of what it is you're 624 00:35:39,800 --> 00:35:43,160 Speaker 1: getting into. I'm not sure that that's a good enough reason. 625 00:35:43,360 --> 00:35:45,680 Speaker 1: Maybe you would read something that you really object to 626 00:35:45,719 --> 00:35:49,000 Speaker 1: and you just decide this isn't for me. That's you know, 627 00:35:49,120 --> 00:35:52,040 Speaker 1: that's legitimate, But goodness knows, if you're like me, you 628 00:35:52,120 --> 00:35:55,680 Speaker 1: do not have the time to read through a novel's 629 00:35:55,760 --> 00:35:58,279 Speaker 1: worth of legal language just to be able to play 630 00:35:58,280 --> 00:36:00,759 Speaker 1: a game or listen to music or use a piece 631 00:36:00,760 --> 00:36:03,040 Speaker 1: of software. If you do want to be part of 632 00:36:03,080 --> 00:36:05,440 Speaker 1: that tenth of a percent of people who bother to 633 00:36:05,440 --> 00:36:07,839 Speaker 1: read any of the ULA at all, go for it. 634 00:36:08,320 --> 00:36:10,920 Speaker 1: You'll be bucking the trend and showing companies that you 635 00:36:11,040 --> 00:36:14,120 Speaker 1: mean business. Unless you just hit. I agree at the end, 636 00:36:14,480 --> 00:36:18,520 Speaker 1: because then they got you. Anyway, that's sort of the 637 00:36:18,560 --> 00:36:22,000 Speaker 1: purpose and the use of EULA's. It is unfortunate that 638 00:36:22,320 --> 00:36:26,360 Speaker 1: there are companies that are kind of overstepping their bounds, 639 00:36:26,520 --> 00:36:29,840 Speaker 1: in my opinion, in order to craft ulas to really 640 00:36:30,480 --> 00:36:35,080 Speaker 1: restrict consumer rights. It's also unfortunate that the courts typically 641 00:36:35,120 --> 00:36:38,920 Speaker 1: find in favor of end user license agreements unless it 642 00:36:39,000 --> 00:36:43,040 Speaker 1: is considered to be unconscionable or too complex or vague. 643 00:36:43,480 --> 00:36:45,520 Speaker 1: And again, the only way that that even happens is 644 00:36:45,560 --> 00:36:48,279 Speaker 1: if someone brings a lawsuit to bring it to the 645 00:36:48,280 --> 00:36:52,120 Speaker 1: court's attention. It's not like courts are evaluating these license 646 00:36:52,160 --> 00:36:56,360 Speaker 1: agreements before they go out. That doesn't happen. So yeah, 647 00:36:56,400 --> 00:37:00,799 Speaker 1: it's kind of an unfair landscape and I don't see 648 00:37:00,800 --> 00:37:04,359 Speaker 1: it changing anytime soon. And yeah, all I can do 649 00:37:04,480 --> 00:37:07,480 Speaker 1: is set a flea out to all the companies out 650 00:37:07,520 --> 00:37:11,440 Speaker 1: there not to go bonkers with those terms in ULA's 651 00:37:11,520 --> 00:37:14,040 Speaker 1: because the more people find out about it, the more 652 00:37:14,080 --> 00:37:18,279 Speaker 1: ticked off they become, and you start to see movements 653 00:37:18,440 --> 00:37:22,719 Speaker 1: rise up that could very well bring legal changes that 654 00:37:23,040 --> 00:37:26,680 Speaker 1: will just completely invalidate those end user license agreements anyway, 655 00:37:26,960 --> 00:37:29,160 Speaker 1: So I mean, I guess I could say just keep 656 00:37:29,200 --> 00:37:32,640 Speaker 1: it up because the reckoning is covering, but I think 657 00:37:32,680 --> 00:37:36,200 Speaker 1: that gets a little too apocalyptic. I hope all of 658 00:37:36,239 --> 00:37:39,400 Speaker 1: you out there are well, and I'll talk to you again, 659 00:37:40,160 --> 00:37:49,839 Speaker 1: really soon. Tech Stuff is an iHeartRadio production. For more 660 00:37:49,880 --> 00:37:54,600 Speaker 1: podcasts from iHeartRadio, visit the iHeartRadio app, Apple Podcasts, or 661 00:37:54,640 --> 00:37:56,600 Speaker 1: wherever you listen to your favorite shows.