EFF sets sights on abusive EULAs

The Electronic Frontier Foundation's new Terms Of (Ab)Use project tracks news, litigation and fights related to abusive terms of service, EULAs and other electronic flimflam. Now's a good time to mention once again my own EULA, which I put at the bottom of my emails:

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

Using a TOS, online service providers can dictate their legal relationship with users through private contracts, rather than rely on the law as written. In the unregulated and unpredictable world of the Internet, such arrangements often provide the necessary ground rules for how various online services should be used.
Yet TOS agreements also raise a number of concerns for the consumer, as they can be a vehicle for abuse by online service providers. For starters, TOS provisions are usually written by the service providers themselves. As a result, they tend to end up being one-sided in the service provider's favor, and are often designed to be beyond any judicial scrutiny. Even more importantly, most users never even bother to read, let alone understand, these agreements, filled as they are with confusing legalese.
The time has come to shed light on what these Terms of Service agreements actually say, and what it means to users. In conjunction with our TOSBack project, EFF is working to make the contents of these TOS more transparent for the average user.

Terms Of (Ab)Use

Previously:

I write books. My latest is a YA science fiction novel called Homeland (it's the sequel to Little Brother). More books: Rapture of the Nerds (a novel, with Charlie Stross); With a Little Help (short stories); and The Great Big Beautiful Tomorrow (novella and nonfic). I speak all over the place and I tweet and tumble, too.

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Hans

My favourite has always been airline EULAs. They are written in their own special language:
DOUBLE OPEN JAWS NOT PERMITTED.
ADD-ONS NOT PERMITTED.
END-ON-END
END-ON-END COMBINATIONS PERMITTED. VALIDATE ALL FARE
COMPONENTS. TRAVEL MUST BE VIA THE POINT OF
COMBINATION.
OPEN JAWS/2-COMPONENT CIRCLE TRIPS/MULTI-COMPONENT
CIRCLE TRIPS

*Double open jaw* huh?

I hope EFF takes on mandatory binding arbitration. It amounts to a “the house always wins” clause. It is a difficult thing to take on directly, but it is one of the more odious of clauses in many EULAs.
Thalia

The vendors are legally required to to accept returns, if it wasn’t installed (if it’s a physical package and you didn’t have a chance to see the EULA before buying). The retailer might not be willing to handle it, but you can mail it to the original vendor and they will refund your money. If they don’t, their EULA will fry.
Laroquod

“If they don’t, their EULA will fry.”

And they’ll warm their hands on that while moving on to the next customer.
Xenu

When I installed Windows, the EULA had been altered to say that Microsoft owed me $1 billion. Okay Microsoft, where’s my money?
Anonymous

writing a eula in brainf**k programing language is really evil.
given that there are very few people who can translate that to plain text.
Mark Levitt

>have the restrictions of an EULA ever been tested in court? what were the results?

Many times:
http://ilt.eff.org/index.php/Contracts:_Click_Wrap_Licenses

Don’t just complain about the law. Call your congressional representative and join the EFF!
Anonymous

I am vaguely impressed by GoDaddy’s nearly weekly updates to their terms of service. I had no idea it was this bad.
SomeGuy

….from any and all NON-NEGOTIATED agreements, licenses, terms-of-service, shrinkwrap, clickwrap, browsewrap, gangstawrap….

When I started reading your EULA I really was thinking that would be there.

Oh well, feel free to use it with my compliments.
shadowfirebird

http://xkcd.com/501/

(If that counts as spam, I apologise.)
demidan

Thank you Cory, I have been using your EULA ever since you first posted it on BoingBoing. The number of people getting pissed off at it is amazing And silly.
Anonymous

I make a point of never reading EULAs. Lying about the “I have read the above” is insignificant compared to any stupid agreement I might accidentally make if I read the EULA.
the_headless_rabbit

I have always been under the impression that the terms of a deal must be negotiated before the money changes hands.
One side can’t force the other to agree to additional terms after the point of sale. In this view, an EULA is just an annoying meaningless pop-up to click through and ignore.

have the restrictions of an EULA ever been tested in court? what were the results?

of course, when its an online service, the shades of grey start to emerge….since there was no original point of sale, no initial agreement to a set of terms, what happens?

I imagine the obfuscation of meaning is exactly the point, but from the consumers perspective, a creative commons style break down, “you are free to do this, we are free to to this, with these conditions,” etc. would be very helpful.

of course, placing legal limits on an EULA would be far more helpful, but when do governments ever come to the aid of citizens when corporate profits are at stake?
Anonymous

Ah! Finally! iTunes/Apple, your ridiculous EULA days are numbered!
Thalia

Your bogus EULA is cute, but not enforceable. At least with other EULAs you can stop the process, before agreeing. Since I cannot unread (but I can uninstall) any judge seeing it would say no. Now if this is on the envelope of your letter, maybe you have a legitimate argument. Otherwise, it’s just grandstanding. Not that there is anything wrong with that.
MythicalMe

I’ve always thought that EULA’s on software updates and service packs were ridiculous. Hello, I already agreed to use your software when I first installed it. No, I don’t particularly want that security upgrade that will let people use my computer without my consent.

While were on it, I buy the software package from a retailer and if I disagree with EULA I can return it for a full refund??? I want some of the stuff you’re smoking.