Down and out in EULA-ville
End user license agreements that nobody can understand aren't that funny, and they can get you in a mess of trouble. Is there any way out of this foggy morass?
It's fair to say that fine print has never gotten much respect. Go ahead, ask your parents if they can name a bank statement or utility bill that explained something new to them.
These days, we overwhelmingly ignore every single notice that appears on our computers and phones every time we install, update, or sign up for something, whether it's an End User License Agreement, a list of Terms of Service, or just a plain old Agreement. And we're raising an entire generation to have even less respect for the fine print. But we're also inundated with unexpected fees, nasty online privacy violations, and the sinking sense that none of us knows exactly what our devices can and can't do.
Consider the case of the pre-teen child who, according to Facebook's Terms of Service, is not allowed to join up with Facebook, because they're not yet 13. But in a survey of 1,0007 households with children ages 10-14, 55 percent of parents with a 12-year-old reported that their child was signed up for the social networking site. More tellingly, out of all the parents whose children were on Facebook, 72 percent said their child signed up before they were 13, and among the parents who were aware their children had a Facebook account, 64 percent helped them create that technically illegitimate account.
It's one thing to skim, or skip entirely, the ever-so-slight changes to a minor iTunes upgrade, but it's another thing entirely to show your kids how to outright lie to their computers when there's something inconvenient on the screen. But it's hard not to sympathize with parents who help their kids shuffle quickly toward an “I agree.” With exceedingly few exceptions, the licensing agreements we're given are extremely long, terribly hard to grasp, and written to cover so many aspects of every single way you might use this thing you're just starting to use that it's both humorous and pointless in its incomprehensibility.
But software and web agreements that nobody can understand are not that funny, and they do have a point. If you tried getting your under-13 child onto Google Plus, and he later updated his profile or another Google service with his real age, he could lose access to his Gmail inbox, photos on Picasa, and other Google services, potentially forever, because that's in the Terms of Service.
The vast majority of people posting on Facebook and Twitter are unaware that those sites have the right to sell and share whatever they put up there (a right which Twitter is starting to monetize).
Those complex and largely ignored terms have led to one of the top country's lawyers admitting in open court that even he doesn't read the agreements that "pop up on my screen every time I get a new program", and so losing ground in defending his client's right to keep his Twitter activity out of investigators' hands. And, as you might imagine, nobody who's had any hands-on experience with the U.S. sub-prime mortgage crisis, the modern healthcare industry, or with signing up for a smartphone data plan has any faith that fine print and inscrutable license agreements are getting better.
Is there any way out of this foggy morass?
One could push for increasing the legal literacy of the population as a whole, for a less gotcha-based judicial system, and for a lot of other nice thoughts. But let's take a cue from Portugal, where Sandra Fisher-Martins is pushing for a universal right to understand important documents. In Portugal the stakes are even higher than in the U.S., due to the lower overall literacy rate. But the solution is the same: push, incentivize, and outright shame companies for their obtuse contracts, 16-page agreements, and intentionally easy-to-miss fees, while celebrating and rewarding the rare good showings. Use the market, not the courts and Congress, because the market is the language companies and their fleets of lawyers can understand.
One of those rare good showings has to be the online photo editing suite Aviary. Aviary's terms of service for its free product are spelled out in two columns: one with the familiar, overly cautious boilerplate ("Full Legal Agreement"), and, right next to it, a "Human-Friendly Summary." In the Full Legal Agreement, a section of the second area covered, "Site Content," reads like this:
All materials displayed or performed on the Site, other than content developed or posted by User ("User Content") including, but not limited to text, graphics, logos, tools, photographs, images, illustrations, audio and video, and animations ("Content") are the property of Aviary and/or third parties and are protected by United States and international copyright laws. As between you and Aviary, however, you own and retain sole and exclusive right, title and interest in and to all of your User Content (subject only to the limited license therein granted to Aviary under this Section 2). The Services may enable Users to develop derivative works based on other Users' Content.
In the "Human-Friendly Summary," that section is paraphrased like this:
+ We own our website.
+ You own your content.
+ If you allow another user to make a derivative, you still own your work.
+ Please don't disregard our copyright notices. :)
Because of the way Aviary worked to make their terms of service comprehensible to anyone smart enough to use their site, that smiley-face emoticon feels a lot less like a cynical marketing ploy than a knowing grin.
The content section of Aviary's agreement goes on to note the exceptions provided by Creative Commons (CC) licensing, and it's a good reference point. Creative Commons exists as the alternative to messy, individualized, and often hard-to-fathom copyright agreements. When you want to share something you've created under a Creative Commons license, you start with the basis that everything is free to use in any way, and then add on exceptions for attribution, commercial use, remixing, and the like. There is often strong criticism from a few corners, to be certain, but since Creative Commons' founding in 2001, nobody, to this writer's knowledge, has seen commercial and creative ruin under a CC license. Wired magazine, in fact just went all-CC with their photographers' works, and it's not because they're a publication that's positively flush with cash. It's just the smarter way to spread their work around, in the right places and contexts, and not weigh anybody down with multi-page licensing agreements.
There are, to be sure, movements and organizations dedicated to pushing for better licensing language and promoting those who use it. The UK-based Plain Language Campaign, for one, and its U.S., governmental counterpart, PlainLanguage.gov. But the only way you're going to ever stop lying about understanding and agreeing, to yourself or to future generations, is if you stand up for the good language and call out the bad.
Write to a software firm or web service when you can't make heads or tails of their license. Copy a section of particularly surreal wording and paste it to your favorite social network. Heck, get on the phone and ask a representative to explain exactly what the terms of service really are. If you hear the same kind of triplicate language, hit them with one of Albert Einstein's best phrasings: if you can't explain it simply, you don't understand it well enough. Do you want to use software that the maker doesn't even understand?
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