Speaker 1: Welcome to Tech Stuff, a production from iHeartRadio. Hey thereon
Speaker 1: Welcome to Tech Stuff, I'm your host, Jonathan Strickland. I'm
Speaker 1: an executive producer with iHeart Podcasts and how the tech
Speaker 1: are you? So? Not that long ago, I talked about
Speaker 1: a story about Roku and how the company made a
Speaker 1: change to its end User License Agreement or EULA, and
Speaker 1: it raised quite a few eyebrows, even though there's been
Speaker 1: precedent for this. So the new terms included language regarding
Speaker 1: how to resolve disputes with the company. If you're a
Speaker 1: customer and you have a dispute with Roku and you've
Speaker 1: agreed to their ULA, this is how it works. So essentially,
Speaker 1: Roku would require customers to agree to an informal dispute
Speaker 1: resolution clause. Now, this would mean that a user would
Speaker 1: have to agree to bring any legal complaints directly to
Speaker 1: Roku lawyers first before going any further, and at that point,
Speaker 1: the lawyer would presumably present a resolution to the consumer.
Speaker 1: And even beyond that, there's a forced arbitration clause that
Speaker 1: essentially says a Roku customer signs away their rights to
Speaker 1: bring lawsuits or to join class action lawsuits brought against Roku.
Speaker 1: This in itself is not unprecedented. It's not the only
Speaker 1: time a company has said, Hey, in order for you
Speaker 1: to use this stuff, you have to agree that you
Speaker 1: won't sue us if you have a problem with it.
Speaker 1: Other companies have included forced arbitration clauses in their EULA statements.
Speaker 1: And those are those things that nobody ever reads, right,
Speaker 1: And when I say nobody, I don't really mean no one,
Speaker 1: but like, there have been various pieces I've read that
Speaker 1: have suggested that only one tenth of one percent of
Speaker 1: all people who agree to a ULA have bothered to
Speaker 1: read any of it, let alone the whole thing. These
Speaker 1: agreements are designed to protect companies from liability. They're also
Speaker 1: meant to extend copyright protections for stuff that isn't typically
Speaker 1: covered under traditional copyright law, or to fill in gaps,
Speaker 1: and generally speaking, they tend to hold up in court,
Speaker 1: at least they do if they're not poorly constructed. We'll
Speaker 1: talk more about a couple of court cases later in
Speaker 1: this episode to kind of illustrate that. But things get
Speaker 1: worse from here, right, So Roku says, Hey, if you
Speaker 1: agree to this, it means you can't sue US if
Speaker 1: something were to happen and you had a dispute, well
Speaker 1: they also had it where if you had a device
Speaker 1: that uses Roku services, like a television with Roku built
Speaker 1: into it, or a Roku streaming device, whatever it may be,
Speaker 1: then you would get prompted to agree to these new
Speaker 1: changes with a big old agree button. So there'd be
Speaker 1: like one option to agree. There was no other option.
Speaker 1: You couldn't choose no, I do not agree. So in
Speaker 1: order to opt out of this ula, you would actually
Speaker 1: have to track down the information so that you could
Speaker 1: send a handwritten or type letter through the old postal service, Yeah,
Speaker 1: good old fashioned US mail. And even then you could
Speaker 1: only do it if you had opted out within thirty
Speaker 1: days of the new terms applying to you. Now, these
Speaker 1: terms went into effect on February twenty, twenty twenty four,
Speaker 1: so that time is already up. The deadline has passed.
Speaker 1: Not that I think most people would have taken that effort,
Speaker 1: you know, to write in and opt out of these terms,
Speaker 1: Like it's the sort of thing that a company does
Speaker 1: knowing that practically no one out there is going to
Speaker 1: take the effort to opt out, Like you can opt
Speaker 1: in very easily just click that little button, but to
Speaker 1: opt out. You know, it reminds me of a passage
Speaker 1: in a Hitchhiker's Guide to the Galaxy where you had
Speaker 1: to find the terms of the agreement by going into
Speaker 1: a very dark and dangerous basement of a building and
Speaker 1: find it in a disused lavatory that had a sign
Speaker 1: on it saying beware of the leopard. Akin to that,
Speaker 1: and even writing in didn't cut it, like you had
Speaker 1: to do more than that. Customers would have to include
Speaker 1: a lot of information. They had to include their own
Speaker 1: personal information, of course, like their name and their contact info,
Speaker 1: but they also had to list whichever Roku products they
Speaker 1: were concerned about, so presumably all the Roku products that
Speaker 1: they actually owned and used, and then preferably they were
Speaker 1: to include a copy of the receipt for those items,
Speaker 1: although that was also said to be quote unquote optional,
Speaker 1: but it was listed as one of the things you
Speaker 1: were supposed to send in was a copy of your receipt.
Speaker 1: And a big old nod to Devin cold Away of
Speaker 1: tech Crunch for writing the article Roku disables TVs and
Speaker 1: streaming devices until users consent to new terms, because that
Speaker 1: really is what inspired this episode. And kind of gave
Speaker 1: me the launching point for it. Anyway, that Roku example,
Speaker 1: while seeming to be pretty egregious, is really just one
Speaker 1: in which companies have created lengthy, complicated, and and sometimes
Speaker 1: downright shady terms that they expect customers to agree to,
Speaker 1: and most of the time customers do agree to them,
Speaker 1: because again, no one's bothered to read the actual agreement,
Speaker 1: and you know, it's hard to fault customers to do this.
Speaker 1: I want to tell you I am not the person
Speaker 1: who reads ayula. I don't read all of these EULAs
Speaker 1: all the way through. I might scan one once in
Speaker 1: a blue moon, but that is the exception, not the rule.
Speaker 1: So I am not putting myself above anyone else here,
Speaker 1: because who has time to read them? Some EULAs get
Speaker 1: insanely long. Jason Cohen of PC Magazine has an article
Speaker 1: titled it would take seventeen hours to read the terms
Speaker 1: and conditions of the thirteen most popular apps. This was
Speaker 1: written back in twenty twenty, so who knows, it may
Speaker 1: be even more in twenty twenty four. So I think
Speaker 1: folks can be forgiven for skipping reading sessions in order
Speaker 1: to use whatever it was they wanted to use. I've
Speaker 1: seen lots of different summaries of how long some of
Speaker 1: these EULAs are. Like Microsoft had one that was more
Speaker 1: than eighteen thousand words long. Some of them are topping
Speaker 1: above twenty thousand words. That's a lot of material. This episode,
Speaker 1: the script I've written out is less than four thousand words,
Speaker 1: and as I'm going through it, you guys know, it
Speaker 1: takes me like more than half an hour to get
Speaker 1: through these episodes. So that's just speaking it out to you.
Speaker 1: These are really long agreements. So today I wanted to
Speaker 1: talk a little bit about why EULAs exist in the
Speaker 1: first place, and to cover what their purpose happens to be.
Speaker 1: Some examples maybe that have been a little bit on
Speaker 1: the extreme side, maybe a little bit about the legal cases.
Speaker 1: So let's just jump right in now. To understand the
Speaker 1: humble eula. One thing we need to do is understand
Speaker 1: how digital products are different from physical ones beyond the
Speaker 1: obvious that is. So, for example, let's say you went
Speaker 1: out to a local music's or to purchase an album
Speaker 1: from your favorite artist or group. This album happens to
Speaker 1: be on vinyl, So you're buying a vinyl long playing
Speaker 1: record album, and you bring your purchase home, and then
Speaker 1: you do whatever you want with it. You can listen
Speaker 1: to it. You can listen to it as many times
Speaker 1: as you like. It doesn't matter if you've just listened
Speaker 1: to it one hundred times. You can listen to it
Speaker 1: for one hundred and one. You can trade it with
Speaker 1: a friend for something else. You could gift it to someone.
Speaker 1: You could just give it away. You could even sell
Speaker 1: it if you suddenly remembered that you don't own a turntable,
Speaker 1: so there's nothing else you could do with it. If
Speaker 1: you wanted. You could even just shatter the vinyl in
Speaker 1: a display of unbridled passion. The physical object of that
Speaker 1: album is yours. You own that physical object, but it
Speaker 1: is not your intellectual property right. Buying the album obviously
Speaker 1: does not give you ownership of the music that's on
Speaker 1: that album. That seems obvious. If I went out and
Speaker 1: bought a copy of all of the Beatles albums, I
Speaker 1: wouldn't suddenly own the rights to the Beatles discography. That
Speaker 1: would be a chaotic world if it were otherwise. So
Speaker 1: you wouldn't have the right to make endless copies of
Speaker 1: this album to give away to friends. You couldn't do
Speaker 1: that because you don't own the music. Here in the
Speaker 1: United States, you could make a backup copy for yourself.
Speaker 1: That is allowed under fair use. So if you bought
Speaker 1: an album, you could make a backup of it. If
Speaker 1: you bought it on vinyl and you thought, I want
Speaker 1: to make sure I can listen to this even if
Speaker 1: something happens to this vinyl album, then you could copy
Speaker 1: it to like cassette or even a digital file. But
Speaker 1: that's about the extent of your rights. As far as
Speaker 1: that goes. With a digital copy, things are clearly different.
Speaker 1: There's no physical medium to speak of. There's a file,
Speaker 1: and that just consists of zeros and ones arranged in
Speaker 1: such a way that, when processed by the proper program,
Speaker 1: is gonna play back a piece of music. You can
Speaker 1: buy such a file, but because that file isn't imprisoned
Speaker 1: in some physical form, the copyright owners want to have
Speaker 1: a way to keep a reasonable or sometimes unreasonable amount
Speaker 1: of control over the distribution of that file. After all,
Speaker 1: if your livelihood depends upon selling digital content, you don't
Speaker 1: want to make a single sale and then see your
Speaker 1: customer go on to make an infinite number of copies
Speaker 1: of that work and then distribute it for less money
Speaker 1: or even for free, because you would be out of
Speaker 1: a job and all of your hard work would be
Speaker 1: out of your control. This very obvious distinction between physical
Speaker 1: media and digital media, which extends beyond just music into
Speaker 1: lots of other realms, creates a bit of a challenge
Speaker 1: for the entities that produce the media in question. We're
Speaker 1: able to treat physical media as personal property. Typically, the
Speaker 1: challenges of making endless copies of physical media are such
Speaker 1: that there isn't that much of a threat to the
Speaker 1: powers that be once you get your grubby little hands
Speaker 1: on that vinyl album. That doesn't mean that the powers
Speaker 1: that be are always cool with advancements in physical media.
Speaker 1: Film and TV studio companies and music studios notoriously have
Speaker 1: been wary of this. Film and TV studios fought against
Speaker 1: the Humble VCR when it became commercially available, and the
Speaker 1: music industry wasn't really keen on the concept of recordable
Speaker 1: cassette tapes or writeable compact discs. But generally speaking, the
Speaker 1: realities and limitations of making physical copies are such that
Speaker 1: any opposition to the technology fades away over time, because
Speaker 1: it turns out the trouble you have to go to
Speaker 1: in order to make a significant number of copies of
Speaker 1: physical media is such that very few people will actually
Speaker 1: bother with it. Right, Like, there are devices out there
Speaker 1: that would allow you to do things like transfer a
Speaker 1: recording from one medium to a whole bunch of copies
Speaker 1: at once, but even then it was limited because you're
Speaker 1: talking about physical media. So you might have something where
Speaker 1: you can make one master copy and then create ten
Speaker 1: copies at a time, but that's still ten. It's not
Speaker 1: you know, thousands or million. So eventually a lot of
Speaker 1: these companies kind of backed off, but a quick side
Speaker 1: on the VCR issue, that one was one that would
Speaker 1: make its way all the way to the US Supreme Court,
Speaker 1: namely the Sony Corporation of America versus Universal City Studios, Incorporated.
Speaker 1: So this was in nineteen eighty four. So in the
Speaker 1: nineteen seventies, when Sony introduced the Betamax machine, a few
Speaker 1: studios got very upset at what they viewed as a
Speaker 1: device that was just designed for copyright infringement. So Universal
Speaker 1: sued and alleged that Sony should be held liable for
Speaker 1: each and every instance of copyright infringement that resulted from
Speaker 1: customers using Betamax in this way, and the case went
Speaker 1: back and forth in the court system. Sony would win
Speaker 1: one case, then Universal would get the decision reversed on appeal,
Speaker 1: and then ultimately Sony submitted the case to the Supreme Court.
Speaker 1: During that case, the court ruled that using a device
Speaker 1: like a VCR for the purposes of time shifting, that is,
Speaker 1: being able to watch media on your schedule, not on
Speaker 1: a channel schedule. Because remember this is at a time
Speaker 1: time where you were just watching broadcast television or cable TV,
Speaker 1: and it was just TV schedules. There was no other
Speaker 1: way to watch. There was no on demand watching. So
Speaker 1: to use a VCR to record a program so that
Speaker 1: you could watch it when you were actually home, the
Speaker 1: court decided that was under fair use. They also found
Speaker 1: that the argument that the Beta Max and devices like
Speaker 1: it were made expressly for the purposes of copyright infringement
Speaker 1: were false. That Beta Max could make copies, but it
Speaker 1: could also just playback tapes that were sold in stores.
Speaker 1: And one other interesting element of this case. One of
Speaker 1: the people who provided testimony in support of VCR technology
Speaker 1: was mister Rogers, as in Fred Rogers, the creator and
Speaker 1: host of the Public television program mister Rogers neighborhood. He
Speaker 1: liked VCRs just the way they were. Okay, we're going
Speaker 1: to talk more about ULA's and the differences between digital
Speaker 1: and physical media, but first let's take a quick break
Speaker 1: to thank our sponsors. We're back. So before I was
Speaker 1: talking about physical media. But digital media is different from
Speaker 1: physical media, and there's no getting around it. It can
Speaker 1: be incredibly easy to make copies of digital media, and
Speaker 1: it isn't governed by the same set of physical restrictions
Speaker 1: and limitations that we get with the physical stuff we buy. However,
Speaker 1: there's also often a need to copy digital media legitimately. So,
Speaker 1: for example, if you want to save a file to
Speaker 1: your hard drive, that is copying, and you might have
Speaker 1: to save something to a hard drive in order to
Speaker 1: be able to use the thing you purchase, like some software.
Speaker 1: Let's just talk about software in the good old days
Speaker 1: of physical media, stuff like optical discs, you know, like
Speaker 1: a CD. So let's say you've gone out to a
Speaker 1: physical brick and mortar store because back in the day,
Speaker 1: and you buy a copy of some software that you
Speaker 1: want to use, and you purchase it legally, right, you've
Speaker 1: spent your money on this in a legal retail establishment.
Speaker 1: You come back, the software is on a compact disc,
Speaker 1: and in order to use it, you actually need to
Speaker 1: transfer the file from the compact disc to your hard
Speaker 1: drive and then you're going to be able to use
Speaker 1: the software. Except you're not actually pulling the file off
Speaker 1: of the CD, like removing it from the CD and
Speaker 1: then poorting it over to your computer. You're copying the
Speaker 1: file from your CD to your computer. The file information
Speaker 1: is still on the CD, right, it's in two places. Now,
Speaker 1: it's on your computer and it's on the CD. But
Speaker 1: you've had to do this in order to run the
Speaker 1: software properly, rather than relying on your optical drive the
Speaker 1: whole time. So here's a case where copying the file
Speaker 1: is part of the process in order to use the
Speaker 1: product as it was intended. So this is an allowable
Speaker 1: use case. But making infinite copies of the file that's
Speaker 1: on that CD and then distributing it to everyone you know,
Speaker 1: obviously that's not a legitimate use case. So how does
Speaker 1: the file's producer distinguish between these two scenarios. They do
Speaker 1: it by creating a licensing agreement. So in this case,
Speaker 1: the agreement would grant the licensee the customer, in other words,
Speaker 1: the right to make a copy of the file for
Speaker 1: the purposes of saving the information to their hard drive.
Speaker 1: But this agreement would also spell out that this is
Speaker 1: really the only acceptable instance for making a copy, with
Speaker 1: maybe an exception for making a backup for the interest
Speaker 1: of fair use. That's a possible other clause that could
Speaker 1: be there. So the license agreement defines how the customer
Speaker 1: can use the software legally, and the customer has to
Speaker 1: acknowledge and agree to the license before they make use
Speaker 1: of the software. Sometimes all they have to do is
Speaker 1: just make use of the software, and that ends up
Speaker 1: being an acknowledgment an agreement to the EULA right like
Speaker 1: they may not have to actually click on a button
Speaker 1: or anything. It may be that the EULA spells out
Speaker 1: that by using the software, it intrinsically means the customer
Speaker 1: has agreed to the terms, and the concept is that
Speaker 1: all parties are aware of and agreed to these terms
Speaker 1: of use, and then things can go on their own
Speaker 1: merry way. One thing to keep in mind is that
Speaker 1: because of the license issue, what we're talking about is
Speaker 1: not ownership, right, it's access. That's what the license grants
Speaker 1: the licensee. It grants them access to whatever it is
Speaker 1: that's licensed, but they don't own it. The person that
Speaker 1: or entity that sold it owns it. So even if
Speaker 1: you have a copy sitting on your computer, you don't
Speaker 1: own that copy. You're just licensed to access it. That's
Speaker 1: the foundational idea behind a ULAP. It protects the producer
Speaker 1: and holds customers accountable for accessing the licensed material in
Speaker 1: a very specific and approved way. That's a real kicker,
Speaker 1: isn't it, Because being able to access material means that
Speaker 1: the producer can actually define the rules that favor them.
Speaker 1: I mean, they're the only party that's making up these rules.
Speaker 1: This is not a negociation. It's not a process where
Speaker 1: collaboratively buyer and seller come together and they heckle and
Speaker 1: they come to an agreement. This is where the seller
Speaker 1: gets to dictate all the terms, and they can redefine
Speaker 1: the rules with little to no warning. They can change
Speaker 1: the rules after people have already agreed to a different
Speaker 1: set of rules. That's how we get situations like what's
Speaker 1: happening with Roku that you as a customer, maybe you've
Speaker 1: read the whole eula top to bottom, and maybe you're like,
Speaker 1: there's some stuff in here I don't really like, but
Speaker 1: overall I can agree to this, and you move forward,
Speaker 1: and then they change the rules of the agreement on you,
Speaker 1: and the next thing, you know, because of the nature
Speaker 1: of you las, you are stuck with an agreement that
Speaker 1: you no longer really like or or feel is warranted.
Speaker 1: One example brought up in a book titled The End
Speaker 1: of Ownership by Aaron Parson Now and Jason Schultz, which
Speaker 1: I actually purchased for this episode. Great book, by the way,
Speaker 1: I recommend checking it out. But one case is a
Speaker 1: pretty infamous one with Amazon and George Orwell's nineteen eighty four. Now,
Speaker 1: the fact that it involves nineteen eighty four in particular
Speaker 1: is coincidental, but it's still kind of ironic. So what
Speaker 1: happened was that you had some people who purchased an
Speaker 1: ebook copy of the classic dystopian novel nineteen eighty four
Speaker 1: by George Orwell, which, among other things, warrens of the
Speaker 1: dangers of authoritarian governments and mass surveillance and the control
Speaker 1: of information. But then it turned out that the vendor
Speaker 1: that was selling this ebook over at Amazon didn't actually
Speaker 1: have legal permission to do that. So what did Amazon
Speaker 1: do Well, it pulled the digital copy from the people
Speaker 1: who purchased it, and it then issued a refund. So
Speaker 1: it meant people would turn on an ebook reader like
Speaker 1: a Kindle and then suddenly they see that the copy
Speaker 1: of nineteen eighty four that they had purchased was gone.
Speaker 1: And again, very ironic. It looks like the control of information.
Speaker 1: It looks like the thing you bought got reclaimed. And
Speaker 1: when you think about it, that's pretty wild, right. I mean,
Speaker 1: if you had bought a copy of a book from
Speaker 1: a bookstore, like a physical book, you wouldn't expect someone
Speaker 1: from that bookstore to show up at your home to say, hey,
Speaker 1: turns out the publisher of that book didn't have the
Speaker 1: right to publish it, so I'm gonna have to take
Speaker 1: it back. That would be crazy. And yet due to
Speaker 1: the nature of digital distribution, this can and did happen
Speaker 1: with Amazon and nineteen eighty four. So a lot of
Speaker 1: news outlets really had a field day about this, and
Speaker 1: I get it. I mean, it's very like poetic and ironic.
Speaker 1: But Amazon was in a tough place because the vendor
Speaker 1: did not have the right to sell the book, which
Speaker 1: meant the rightful parties that could sell the book would
Speaker 1: have a really good reason to go after Amazon for
Speaker 1: allowing it to all happen if Amazon didn't do something
Speaker 1: about it. As a modern eula can be structured to
Speaker 1: allow for this kind of thing, where a company can
Speaker 1: reclaim digital material even if you thought you owned it.
Speaker 1: So another great example would be if you purchased a
Speaker 1: digital title on a service like a platform. It's one
Speaker 1: thing to be a subscriber to say Netflix, for example,
Speaker 1: it's another thing. Let's say that you are on Amazon
Speaker 1: Prime and you've purchased a digital copy of a movie.
Speaker 1: Could it be possible for Amazon to revoke that access
Speaker 1: to that digital title in the future. Absolutely, that could happen.
Speaker 1: You know, you could purchase a DVD of the movie,
Speaker 1: and you've got that DVD forever, right until the DVD
Speaker 1: degrades to a point where you can't use it or
Speaker 1: you don't have a player that can play it anymore.
Speaker 1: They could still go obsolete that way, but otherwise you
Speaker 1: still have access to it digitally. If something were to happen,
Speaker 1: Amazon could potentially just remove it from your library and
Speaker 1: now you can't access it anymore. That's a possibilit So
Speaker 1: the license always has conditions, and if you violate those conditions,
Speaker 1: then you could lose access to the thing you thought
Speaker 1: you had purchased. It can be taken away from you,
Speaker 1: and those conditions can change pretty much at the whim
Speaker 1: of the company that's behind the thing. And it's kind
Speaker 1: of like what Darth Vader said to Lando Calrissian, I
Speaker 1: am altering the deal. Pray I do not alter it
Speaker 1: any further. This is really an issue with digital media
Speaker 1: in general, not just because of ULA's So again, I
Speaker 1: was talking about Netflix and licensing agreements. Well, there are
Speaker 1: license agreements between Netflix and various studios out there, right,
Speaker 1: So you have no guarantee that a title that you
Speaker 1: really like is going to remain on any given streaming service.
Speaker 1: One day it might be there, and then the next
Speaker 1: day it could be gone because of some agreement made
Speaker 1: between the service and the company that owns the rights
Speaker 1: to that title, and it expired and wasn't renewed. I
Speaker 1: always think of that Mitchell and Web Look, which is
Speaker 1: a British comedy sketch show with Rob Web and David Mitchell.
Speaker 1: I found that on Netflix years ago and fell in
Speaker 1: love with that series, loved it and one day the
Speaker 1: series just disappeared. At one point, just the third season disappeared.
Speaker 1: Seasons one, two, and four were still there, but three
Speaker 1: went away, and then eventually all of them went away.
Speaker 1: And then I looked to see where I could get
Speaker 1: access to it, and I couldn't anywhere in America. There
Speaker 1: were no legal ways to access the material. I eventually
Speaker 1: had to purchase the English DVDs and get a region
Speaker 1: free player so that I could watch the show because
Speaker 1: I no longer had access to it. And that's just
Speaker 1: the way it is. You don't own the media. For
Speaker 1: media that exists on servers, Like on an online video game,
Speaker 1: a company might choose to shut those servers down in
Speaker 1: order to reduce costs, and effectively that kills the game.
Speaker 1: So even if you had purchased a copy of this
Speaker 1: game at full retail price when it came out, you
Speaker 1: wouldn't be able to play that game anymore because the
Speaker 1: servers that existed that allowed you to play that game
Speaker 1: are now offline. Like that's a real problem, not just
Speaker 1: for like multiplayer online games, which that's pretty obvious, right.
Speaker 1: If it's an online game, then if the servers go down,
Speaker 1: there's no server to log into, you can't play anymore.
Speaker 1: But there are single player games that, as part of
Speaker 1: the digital rights management system, require you to contact a
Speaker 1: specific server that verifies the copy of the game you're
Speaker 1: playing is a legitimate copy. And if those servers go down,
Speaker 1: you have a legitimate copy of a single player game
Speaker 1: that's not an online experience that cannot work anymore because
Speaker 1: there's no longer a server for it to ping to
Speaker 1: to verify that your copy is legitimate. This is a
Speaker 1: real problem. And because you never actually owned a copy
Speaker 1: of the game, you really just owned a license to
Speaker 1: access that game under certain conditions, you're kind of stuck. Okay,
Speaker 1: we've got a ton more stuff to talk about, including
Speaker 1: an actual court case, but before we get further into that,
Speaker 1: let's take another quick break to thank our sponsors. All Right,
Speaker 1: So there's a piece I read for this that I
Speaker 1: recommend y'all check out. Jason Kobler wrote a piece for
Speaker 1: Motherboard and it's titled Corporations use end user license agreements
Speaker 1: to create a parallel legal system, And the title really
Speaker 1: sums things up pretty nicely. So, in order to secure
Speaker 1: the protections that the company desires, and in order to
Speaker 1: force customers into behaviors that ultimately benefit the company. These
Speaker 1: organizations craft legal agreements that restrict customer rights and allow
Speaker 1: for practices that aren't otherwise covered by law. The traditional
Speaker 1: aspects of property law do not apply. Right. We've talked
Speaker 1: about that, because there are differences between physical and digital
Speaker 1: types of media. The rights of property ownership you would
Speaker 1: originally assume would apply to you, they don't apply. Moreover,
Speaker 1: these agreements can be so long and sometimes filled with
Speaker 1: jargon that customers are not incentivized to read through it all,
Speaker 1: so the deck is stacked in favor of the companies.
Speaker 1: Sometimes you're not even allowed to read an agreement until
Speaker 1: you've actually gone through the trouble of making the purchase.
Speaker 1: So it's you can't read before you decide to buy,
Speaker 1: it's when you buy, and then you are able to
Speaker 1: access the agreement, So you don't necessarily know what you're
Speaker 1: getting into until after money has already changed hands. Maybe
Speaker 1: then you would be able to secure a refund, but
Speaker 1: with digital property, that's not always a guaranteed, nor is
Speaker 1: it always easy, right Like, some platforms make it easier
Speaker 1: than others, but it's not always easy to get a refund.
Speaker 1: If by the way that you're not able to read
Speaker 1: the agreement until after you've made a purchase. You are
Speaker 1: supposed to be able to get a refund because it
Speaker 1: would be ludicrous otherwise, like you don't know what you're
Speaker 1: getting into until you've made a purchase. Then you're told
Speaker 1: too late what the deal is. And if you said, well,
Speaker 1: I don't accept those terms, you have to be able
Speaker 1: to get a refund or else what's the point. So
Speaker 1: Coupler points out more than a few cases in which
Speaker 1: companies used a EULA to step well beyond just defining
Speaker 1: terms of ownership or use. So, for example, there's the
Speaker 1: case of John Deere. That's the company that's best known
Speaker 1: for making farming equipment like tractors. And we've talked about
Speaker 1: this company a lot in episodes about the right to repair,
Speaker 1: which we'll talk about in a second. John Deere is
Speaker 1: a company that for a very long time has taken
Speaker 1: steps to restrict how and where farmers can maintain and
Speaker 1: repair their own equipment. So the company wants to have
Speaker 1: control over that whole system, much like Apple does with
Speaker 1: its products, and to that end, the EULA with John
Speaker 1: Deere equipment included clauses that said farmers were to take
Speaker 1: their equipment only to official John Deere licensed repair shops.
Speaker 1: And if you happen to be a farmer who lived
Speaker 1: a really long way from such a place, and then
Speaker 1: your tractor broke down, you'd really be up the creek,
Speaker 1: because you know you've made this agreement not to take
Speaker 1: your tractor to like the shop down the road that
Speaker 1: isn't a licensed John Deere repair shop. ULA's were not
Speaker 1: the only weapon John Deere used to achieve this ecosystem,
Speaker 1: but it was kind of part of the arsenal. Another
Speaker 1: example that Kobler sites in his article was for you
Speaker 1: torrant or however you'd like to pronounce it. So this
Speaker 1: was or is a bit torrent client, and torrents already
Speaker 1: have their own shaky history. A lot of people have
Speaker 1: used torrents to trade in pirated material. But this torrent
Speaker 1: client up the ante back in twenty fifteen when users
Speaker 1: were prompted to accept an agreement before actually using the service.
Speaker 1: This agreement said that users would allow for the installation
Speaker 1: of a cryptocurrency minor on their own machines. So if
Speaker 1: you didn't read the agreement, let's say you signed up
Speaker 1: to the U torrant client. Most folks did not bother
Speaker 1: to read this agreement. I wouldn't know that you had
Speaker 1: just agreed to join a cryptocurrency mining operation and that
Speaker 1: your computer's resources were going to be borrowed for that purpose.
Speaker 1: And of course you're not mining cryptocurrency for yourself. Instead,
Speaker 1: your computational resources were going to a much larger operation
Speaker 1: that benefits the U Torrent folks, which is pretty sneaky,
Speaker 1: but it was in the ULA. So how do ULA's
Speaker 1: fare in court? Well, generally speaking, they do pretty darn well. Courts,
Speaker 1: at least here in the United States, have favored companies
Speaker 1: more than they have favored customers traditionally. So, for example,
Speaker 1: there was a court case called Feldman versus Google Incorporated
Speaker 1: in two thousand and seven. The plaintiff, Feldman, was a
Speaker 1: lawyer who had purchased ads from Google, and Feldman would
Speaker 1: owe Google money whenever people would click on one of
Speaker 1: his ads. But Feldman said he was victim of click fraud,
Speaker 1: that folks who had no interest in retaining his services
Speaker 1: were clicking on his ads anyway, and they were driving
Speaker 1: up costs and costing him money. So Feldman filed a
Speaker 1: lawsuit in Pennsylvania and said that in part, he wasn't
Speaker 1: given appropriate notice of Google's clauses before entering into this arrangement.
Speaker 1: Google moved to have the case tried in Santa Clara County, California,
Speaker 1: because the EULA actually included a statement that said all
Speaker 1: disputes were to be resolved there, and the EULA also
Speaker 1: included passages that provided protection against legal liability in the
Speaker 1: case of click fraud. Now, Feldman said he did not
Speaker 1: have appropriate notice to this agreement and that there was
Speaker 1: no mutual assent upon the agreement and thus it would
Speaker 1: make it invalid as a contract. But the court found
Speaker 1: that Feldman had to click the agree button in order
Speaker 1: to use the service in the first place, and that
Speaker 1: this amounted to signing a contract agreement, and so Feldman's
Speaker 1: case was unsuccessful. That he apparently didn't read the agreement
Speaker 1: first really fell on him on Google. He also had
Speaker 1: argued that it was invalid because there was no information
Speaker 1: about pricing in that agreement, but the court found that
Speaker 1: there were enough indications of the process to determine pricing
Speaker 1: that not including the pricing itself didn't matter, because what
Speaker 1: the EULA did have in it was the essentially the
Speaker 1: formula to calculate what pricing would be, so Feldman ultimately
Speaker 1: lost this case. Now, some contract lawyers and some other
Speaker 1: folks have pointed out that traditionally, with most contracts, you
Speaker 1: do have a negotiation period so you can come to
Speaker 1: terms that are agreeable to both parties. But in the
Speaker 1: case of ayula, there is no negotiation. There's no back
Speaker 1: and forth traditionally, so instead you either agree to the
Speaker 1: terms or you don't, and if you don't, you don't
Speaker 1: use the product or service. Those are really your options.
Speaker 1: There's no way for you to get more favorable terms
Speaker 1: in most cases. But obviously the other party, the company,
Speaker 1: can change things and ask you to agree to altered
Speaker 1: terms of service, which is an unbalanced power dynamic going
Speaker 1: on here. Now, there are some instances where a court
Speaker 1: could find in favor of the consumer. For example, let's
Speaker 1: say a company makes a product with a eula attached
Speaker 1: to it. The customers are not able to read the
Speaker 1: eula until after they've purchased the product, so called shrink
Speaker 1: wrap eula. A customer buys the product, then they're able
Speaker 1: to read the eula. The customer then objects to the
Speaker 1: eula and they want to return the product for a refund.
Speaker 1: If there is no reasonable time frame for them to
Speaker 1: make such a return, a court could find in favor
Speaker 1: of the customer because they'd say, like, your EULA doesn't
Speaker 1: isn't enforceable, because there's no way for the customer to
Speaker 1: object to the EULA and have it mean anything. If
Speaker 1: the company does give a reasonable amount of time, let's
Speaker 1: say that they give you thirty days to make a return.
Speaker 1: If you object to the ula and if you fail
Speaker 1: to return it within the thirty days, then the court
Speaker 1: is probably going to find in favor of the company
Speaker 1: because they'd say, well, they gave you a reasonable timeframe
Speaker 1: to request a refund, and if you didn't respond within
Speaker 1: that timeframe, that's on you. If a customer can make
Speaker 1: a case that the terms of a EULA are too
Speaker 1: vague or too complicated for a reasonable person to understand them,
Speaker 1: then the courts could also find that that particular EULA
Speaker 1: is unenforceable. So that's one reason a company might be
Speaker 1: discouraged from obfuscating things with a lot of legal jargon,
Speaker 1: because it can come back to haunt them if someone
Speaker 1: bothers to bring a lawsuit against them. Lawsuits are really expensive, though,
Speaker 1: so unless the customer is really determined to stick it
Speaker 1: to this company, it's not likely to happen. But if
Speaker 1: it does happen, the consumer can show, hey, this EULA
Speaker 1: is purposefully complex and vague. A court might find that
Speaker 1: particular eula to be unenforceable, but you know that's a
Speaker 1: long shot. It's such a huge undertaking and it's so expensive.
Speaker 1: So maybe companies could avoid making things confusing with legal language,
Speaker 1: but they could still bury consumers in ulas that are
Speaker 1: thousands of words long, and it might not be complicated
Speaker 1: or vague. It might just be dull and exhausting. So again,
Speaker 1: no one really bothers to read them. But if they
Speaker 1: were to try and challenge them in court, the court
Speaker 1: might say, well, yeah, it's long and it's boring, but
Speaker 1: nothing here is vague or complicated, so technically it stands.
Speaker 1: There are also social changes that are pushing back against
Speaker 1: some EULAs. I mentioned John Deere earlier. That's a company
Speaker 1: that's been affected by the recent right to repair movement.
Speaker 1: Advocates have really pushed for laws that give consumers more
Speaker 1: control over how they maintain and repair their purchases, and
Speaker 1: they have pushed back against this closed ecosystem approach used
Speaker 1: by companies like John Deere and Apple, and there's been
Speaker 1: progress in several states here in the United States, though
Speaker 1: it's not really a nationwide trend as of yet. But
Speaker 1: obviously this is a really big step. You know, getting
Speaker 1: states to create new legislation that makes certain passages in
Speaker 1: certain EULAs unenforceable isn't the sort of thing that the
Speaker 1: average person can really do themselves. It requires much larger movements.
Speaker 1: So again, when it comes to the average consumer, it
Speaker 1: often feels like there's not much you can do, and
Speaker 1: that's usually actually the case. Now. I know I've said
Speaker 1: a lot of negative stuff about ULA's in this episode,
Speaker 1: but they do actually serve a purpose. Ulas are needed
Speaker 1: to cover gaps in intellectual property law, particularly here in
Speaker 1: the digital space. They aren't all malicious or overbearing, and
Speaker 1: you could argue that they actually stand as evidence that
Speaker 1: legislators need to make new property ownership laws that cover
Speaker 1: the digital space and modern technologies, and that these laws
Speaker 1: would then supersede EULAs or just make them moot. In fact,
Speaker 1: a lot of people have argued for this that we
Speaker 1: need new property laws that would cover things in the
Speaker 1: digital realm, and that This would really go a long
Speaker 1: way to solving these issues. But it's really hard to
Speaker 1: get a body like the US Congress to take up
Speaker 1: matters of property ownership. It just isn't something that is
Speaker 1: a super high priority right now, So I wouldn't hold
Speaker 1: my breath for it anyway. That about sums it up
Speaker 1: for youula's except for this bit, should you read every
Speaker 1: EULA before you agree to it? Well, I honestly can't
Speaker 1: tell you that it would do you much good. You
Speaker 1: might have a better understanding of what it is you're
Speaker 1: getting into. I'm not sure that that's a good enough reason.
Speaker 1: Maybe you would read something that you really object to
Speaker 1: and you just decide this isn't for me. That's you know,
Speaker 1: that's legitimate, But goodness knows, if you're like me, you
Speaker 1: do not have the time to read through a novel's
Speaker 1: worth of legal language just to be able to play
Speaker 1: a game or listen to music or use a piece
Speaker 1: of software. If you do want to be part of
Speaker 1: that tenth of a percent of people who bother to
Speaker 1: read any of the ULA at all, go for it.
Speaker 1: You'll be bucking the trend and showing companies that you
Speaker 1: mean business. Unless you just hit. I agree at the end,
Speaker 1: because then they got you. Anyway, that's sort of the
Speaker 1: purpose and the use of EULA's. It is unfortunate that
Speaker 1: there are companies that are kind of overstepping their bounds,
Speaker 1: in my opinion, in order to craft ulas to really
Speaker 1: restrict consumer rights. It's also unfortunate that the courts typically
Speaker 1: find in favor of end user license agreements unless it
Speaker 1: is considered to be unconscionable or too complex or vague.
Speaker 1: And again, the only way that that even happens is
Speaker 1: if someone brings a lawsuit to bring it to the
Speaker 1: court's attention. It's not like courts are evaluating these license
Speaker 1: agreements before they go out. That doesn't happen. So yeah,
Speaker 1: it's kind of an unfair landscape and I don't see
Speaker 1: it changing anytime soon. And yeah, all I can do
Speaker 1: is set a flea out to all the companies out
Speaker 1: there not to go bonkers with those terms in ULA's
Speaker 1: because the more people find out about it, the more
Speaker 1: ticked off they become, and you start to see movements
Speaker 1: rise up that could very well bring legal changes that
Speaker 1: will just completely invalidate those end user license agreements anyway,
Speaker 1: So I mean, I guess I could say just keep
Speaker 1: it up because the reckoning is covering, but I think
Speaker 1: that gets a little too apocalyptic. I hope all of
Speaker 1: you out there are well, and I'll talk to you again,
Speaker 1: really soon. Tech Stuff is an iHeartRadio production. For more
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Speaker 1: wherever you listen to your favorite shows.