Buried treasure in clickthrough agreements

by on April 6, 2013 at 10:34 am in Law, Medicine, Uncategorized | Permalink

Do you know anyone who stops to read “click-through” agreements on websites in the middle of performing a task? One company, PC Pitstop, deliberately buried a clause in its end-user license agreement in 2004, offering $1,000 to the first person who emailed the company at a certain address. It took five months and 3,000 sales until someone claimed the money. The situation hadn’t improved by 2010 when Gamestation played an April Fools’ Day joke by embedding a clause in their agreement saying that users were selling them their souls.

Here is another good bit:

Ponder the fact that a dermatologist must sign his name to forms almost 30,000 times a year, according to a 2008 article in the Southern Medical Journal.

The article is here and for the pointer I thank Olaf.

Alan Gunn April 6, 2013 at 11:02 am

When I buy a car, I don’t disassemble it to check on whether all the parts are what i want. Why would I treat the contract rights I’m getting with a product any differently? Only someone with no life would bother to read all the fine print.

Jonathan B April 6, 2013 at 11:33 am

I do think it’s surprising that it took 3000 sales to get someone who read the fine print but on the other end I think it’s surprising how many click-through agreements that one encounters as a normal Internet user. Gasp, think of all those lost work hours if people would actually read them.

Rahul April 6, 2013 at 1:22 pm

How enforceable are the terms in these contracts that no one reads? If the contract had a silly, unexpected, unfair clause (e.g. Netflix writing that lost DVD’s get billed at $1000-per-DVD) no court’s going to enforce it anyways. Are company lawyers writing contracts longer than they need to be?

What’s the legal position?

anon April 6, 2013 at 1:35 pm

If presented after payment, then I believe they are contracts of adhesion. See EULA.

IMHO, the real concern should be what information you are agreeing to share with the other party or third parties. To prevent that, a technical solution may be better. (Or what some people do is lie: Name: Bite Me Address: 1600 Pennsylvania Avenue NW, etc.)

Also see Collusion:

https://www.mozilla.org/en-US/collusion/

Norden April 6, 2013 at 11:39 am

Ignoring the now impenetrable complexity of many website/EULA contract agreements is a very rational response by most all people.

And that’s just the tip of the iceberg– overall government civil, administrative, and criminal law literally extends to hundreds of thousands of intricate rules & variables imposed on all the citizenry… well beyond the understanding of even the most accomplished lawyers. All one can do is press on with daily life, ignoring things beyond your control.

The fundamental problem is the loss of the rule-of-law in America in all legal aspects. Vast oceans of pseudo-laws & legalities quickly lose their credibility when the general populace can not understand them (and often not even know of them); “law” becomes a weapon against the people, rather than its defender.

Alan Coffey April 6, 2013 at 9:13 pm

+1

byomtov April 6, 2013 at 12:44 pm

Dermatologists sign 100+ forms per work day? Who did that calculation?

John Skookum April 6, 2013 at 8:11 pm

Radiologists do more than that. I have read as many as 250 films in a day. Each one has a dictated report that requires my signature. The signatures are electronic now, but still tedious. And every time I do it, I am placing at risk my career, my house, and everything else I own.

Olaf April 6, 2013 at 1:09 pm

Car analogy is not comparable – your expectations re “car parts” are within a much narrower range and more closely legally protected if they prove incorrect – there are all sorts of implied statements in selling a car. Entering into a contractual agreement on the terms set out therein is, legally a kind of holy grail of a liberal society, i.e. you are consensually “making the law itself”, the content of which could be pretty much anything and any expectations are only very loosely protected (depending on your legal regime / jurisdiction, your status as consumer or professional counterpart etc. etc.) The law gives you broad liberty to harm yourself by contract on the assumption you know what you are doing. And exactly this proves increasingly theoretical as the examples show, i.e. when it becomes customary to reduce to ones scrutiny of a contract to that of a car. If there is a clause in the middle by which you subject yourself to lifelong inservitude, do you expect the law to render it illegal or are you content that once that becomes known, there will be no “next” victim as the market reacts cleanly and starts avoiding the sneaky counterpart which used the clause? What about a hidden lifelong, irrevocable obligation to pay a small regular amount for some worthless “service”?

As contracts become less conscious, reflected agreements between the parties but more an imposition by one on the (convenient, trusting) other, all sorts of issues arise. Has been the case for quite some time, but is now increasing exponentially it seems. The world is always getting more complex in a technical sense – but if the terms by which people govern their relationships among each other (e.g. laws, contracts) are no longer reflected by their makers due to complexity, this does create problems at a higher level and broader nature than “blindly” buying a car.

Alan Gunn April 6, 2013 at 2:58 pm

I care a lot more about whether some critical part in my car will fail at 70 than about some term in the contract. If there’s something astonishingly bad in the contract courts won’t enforce it. As for the regular terms, they’re something you buy with the car, just like the fuel injection system. Is there some notion here that a sale is invalid unless the buyer understands every detail about what they’re buying? If so, all sales are invalid. If not, why have different rules for the mechanical stuff I don’t understand than for the legal stuff I don’t understand?

prior_approval April 6, 2013 at 1:45 pm

Copyleft – not just a legally binding contract, but a way not to care about corporate concerns.

Donald A. Coffin April 6, 2013 at 2:06 pm

And how many people read the HIPPA statements we now sign every time we see a healt-care provider/ (FWIW, I read them every time.)

Rahul April 6, 2013 at 2:44 pm

I read them too. Once I scratched some random clauses and initialed them. Nobody said anything.

My skj slope, skydiving school and paintball range all give you long contracts with tons of spots that need initialing. I always skip some key clauses (e.g. “hold harmless”) and nobody’s complained. So also for credit card receipts; if they can’t be bothered to check if I sign as G. W. Bush why do they care if I sign at all?

It all seems like a massive charade to me.

AndrewL April 6, 2013 at 3:52 pm

If you dispute a charge on your CC and the merchant produces the receipt with your signature on it, then your CC company will ask you if that is your signature on the receipt even if you signed “G.W. Bush” on it. If you lie and say it is not, then that is fraud. It doesn’t matter what you sign on that receipt, just that you are attesting that you are the authorized signer for charges on that card and that you agree to those charges.

liberalarts April 6, 2013 at 2:18 pm

My position is that I will not sign any petition that I have not read. It is also my position that I don’t read positions.

liberalarts April 6, 2013 at 2:18 pm

^ “petitions” not “positions”

Mitch Berkson April 7, 2013 at 10:50 am

It’s OK. No one read it.

Willitts April 6, 2013 at 2:30 pm

Reminds me of the red jelly bean clauses in celebrity contracts so the agents would know if the studio was reading and complying with them.

The contracts may not be enforceable under certain circumstances, but they are clearly not enforceable under any circumstances if they are non-existent.

From the seller’s end, the contracts are seldom enforced unless the end user commits an egregious violation, in which case the EULA most likely has enforceable value.

I’m most concerned about hidden surrender clauses that ARE invoked frequently and are clearly inequitable, such as auctioning off the entire contents of your rental storage unit for missed payments when the value of the contents far exceeds any damages suffered by the storage company. The non-payment might be simple negligence, miscommunication, or impossibility, and the contents may be irreplaceable in the event of lessor error.

I don’t think a landlord can auction off all your property for missed rent payments after an eviction, but I haven’t rented in decades so I don’t know the answer to that.

As an academic topic, the auctioning of storage contents after giving prospective buyers only a brief and distant view of items therein is interesting.

Leb April 8, 2013 at 6:22 pm

A landlord can do whatever they want with abandoned property, including selling or auctioning it off. With a home rental, the landlord will have had to go all the way through the eviction process to the point of obtaining a writ of possession (where the sheriff comes and physically removes the tenant). The tenant’s possessions are then placed on the curb, and anything not claimed is considered abandoned. With property simply left behind by a tenant who has lawfully moved out, property is considered abandoned after X amount of time (often 30 days), though laws on that vary depending on where you live. Tenant law in most states today does NOT allow landlords to hold a tenant’s possessions hostage or sell them off in lieu of rental loss. Only abandoned property can be sold, donated, or disposed of.

As far as storage renting goes, I personally don’t find surrender clauses inequitable at all, because the storage facility usually will give a very reasonable length of time for the tenant to either pay up or claim their property. They don’t sell off your stuff for paying a few days late… more like 60 or 90 days. If you don’t pay your rent and they can’t reach you for 2 or 3 months, why *shouldnt* they sell off your stuff? If no one is bothering to keep up with the rent, then you’ve pretty much abandoned your belongings. If something is truly irreplaceable, then either don’t store it in s storage unit, or make arrangements to ensure that the rent is never at risk of going unpaid.

Lucifer April 6, 2013 at 2:41 pm

The situation hadn’t improved by 2010 when Gamestation played an April Fools’ Day joke by embedding a clause in their agreement saying that users were selling them their souls.

I am laughing all the way to the bank.

Will Lewis April 6, 2013 at 2:55 pm

Fortunately, soul-selling clauses would probably be determined unconscionable and, therefore, unenforceable ;) Onerous terms of EULA’s and click-wrap licenses also stand a chance of unconscionability as to consumers. But there’s a very, very slim chance that a dermatologist would be afforded such a luxury.

Mitch Berkson April 7, 2013 at 10:55 am

There’s also this issue:

Until Today, If You Were 17, It Could Have Been Illegal To Read Seventeen.com Under the CFAA:
If you are 17 or under, a federal prosecutor could have charged you with computer hacking just for reading Seventeen magazine online

https://www.eff.org/deeplinks/2013/04/until-today-if-you-were-17-it-could-have-been-illegal-read-seventeencom-under-cfaa

Dan Weber April 8, 2013 at 3:05 pm

It’s too bad the EFF seems to have gone for rage views rather than reasoned discussion. Who writes that stuff, college interns?

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