Category Archives: EULA

Facebook’s Voting on ToS

[Disclaimer:  While I’m a Facebook user, I do not know all of the ins and outs of this particular issue, as I’ve not paid too much attention since they rolled back to the old ToS.]

Facebook has announced that they plan to have members vote on the new Terms of Service they’ve been working on.  In fact, they even say that it’s been a group of Facebook lawyers and a group of law students.

Facebook lawyers, with the help of law students, have been reading the 3,000-plus comments, and the administrators of the original protest group against the terms of use changes are consolidating the feedback in a list of “key concerns,” according to Facebook. The company has also sought input from privacy, copyright, and Internet legal experts.

OK, so I’m glad that they’re seeking input from privacy and copyright experts, too.  Even more interesting, though, is that unless 7,000 people submit comments, they’re only going to take the response as advisory.

Facebook will hold a vote on any proposed change if at least 7,000 members submit comments. The results of the vote will be “advisory” if less than 30 percent of Facebook active users participate in the process. If 30 percent or more of active members vote, the results of the vote will be binding, according to Axten.

In theory, that’s very representative.  If the people don’t feel the need to vote, those that do shouldn’t be counted as a representative sample of the entire population.

But let’s also be honest and say that the average teenager does not have a complete understanding of copyright, privacy or any of the other potential legal issues strewn about a Terms of Service document.  To them, music has always been “free”, digital nannies are more effective at stopping them from copying Wikipedia articles for school papers than the fear of punishment, and privacy is something they can control through the use of fake identities online.  It’s not that they’re unable to comprehend, they just haven’t had to do so up to this point.  When given the choice of “Accept” or “Reject” when installing software… how many of you read the language and then click “Reject”?

So while I think it’s commendable that Facebook offer up it’s proposed ToS to the user population for a vote, I think it’s ultimately going to not be an effective means by which the “public” will get Terms of Service that are truly acceptable to them.  The simple truth is that Facebook is a service.   They offer it to the world for free and they have created a Terms of Service document which governs the user’s use.  If the user doesn’t like the ToS, they shouldn’t use the service.  Facebook should have some sort of internal moral compass to not do anything that’s a violation of their user’s rights (even if their users don’t fully understand such rights), but that isn’t a legal requirement.  At the end of the day, Facebook should post it’s Terms of Service in both legal and layperson’s terms – disclosing the good (and more importantly) the “bad”… in detail.

Hopefully, potential users can then make an informed choice about how they wish to use the service.


EULAs: The “I’m Rubber, You’re Glue” Edition

Back in August, I wrote about Cracking the EULA’s shell.  In that instance, a California court was headed down the path of declaring EULAs as contracts of adhesion.  This was a pretty hard blow to the EULA’s drafter (the vendor).

Today is a new EULA case, with a twist.  Long story short, a court ruled against a vendor again.

Moral of the Story:  If you’re using/relying on EULAs to protect you and your product… and you believe that your funky drafting and interesting language is going to be read in a way that always works out in your favor… think again.

[Thanks to ContractsProf Blog for the story!]

Grape Licensing

I saw this the other day:

Sunset Seedless grape package

Sunset Seedless grape package

and I’ve been thinking about the implications…  is it really possible to add this type of condition?  I think I agree with Madisonian’s evaluation of the situation, assuming that the grapes are patented.  But what if they’re not patented?  Can you restrict usage of a purchased good?  Thoughts would be appreciated.  🙂

From boingboing.

More on using other people’s work

I’ve written before on the topic of using other people’s work as the basis for your contracts.

Google apparently didn’t learn that they need to not necessarily borrow from themselves, either, for the EULA related to Google’s new browser, Chrome.

But the bigger issue in this new EULA from Google were the terms itself.  Specifically, the license for Google’s new browser states/d, in part, that Google will have “a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute” anything displayed through the browser.


At least they’ve changed it.  But the fact that it got in there at all is problematic.

Google, for their part, blames it on a copy/paste error… that it was erroneously inserted to make it similar to their usual language, to “keep things simple for their users”.

Um… sure.  😉

Lost in Translation

I downloaded an application this morning. All seemed well at first. The download was simple, installation was as easy as dragging the application to my Applications folder.

I fully expected some sort of click-through agreement. What I didn’t expect was that an application that was completely (up to this point) obviously written by a fluent English speaker would have a click-through license agreement in German. Heck, even the “I accept” button language was English.

Being the contracts geek that I am, I highlighted the license, went to Google Translation, and pasted it in (BabelFish, which used to be my preferred translator, has a 150 word limit). The translation took a few seconds. Here are a few of the resulting sections before and after:

3.2. Eine Trial-Version berechtigt allein zur Benutzung der Software zu Testzwecken. Ein Produktiveinsatz ist nicht gestattet.
3.2. A trial version only entitled to use the software for testing purposes. A productive use is not permitted.

5.2. Der Hersteller steht nicht dafür ein, dass die Software vollständig fehlerfrei ist. Sollte sich ein Fehler zeigen, der die Software für den üblichen Gebrauch untauglich macht, so liegt ein Mangel vor. Bei einem Mangel hat der Hersteller das Recht nach seiner Wahl den Mangel zu beseitigen oder eine Ersatzversion zu liefern (Nacherfüllung). Scheitert die Nacherfüllung zweimal, kann der Kunde nach seiner Wahl vom Vertrag zurücktreten oder die Herabsetzung des Preises verlangen.
5.2. The manufacturer does not ensure that the software completely error-free. If a mistake to show the software for the usual unfit makes, there is a shortage. With a shortage, the manufacturer the right after his election to eliminate the deficiency or a replacement version to be delivered (performance). The failure of the subsequent performance twice, the customer has his choice of the contract or the reduction in the price.

6.1. Der Hersteller übernimmt keine Haftung für Schäden, die auf einfacher Fahrlässigkeit beruhen, soweit sie sich nicht auf die Hauptleistungspflicht beziehen oder Verletzungen von Leben, Gesundheit oder Körper darstellen.
6.1. The manufacturer assumes no liability for damage resulting from simple negligence, to the extent it does not affect the main service obligation, or injury to life, health or body.

7.1. Es wird die Anwendung deutschen Rechtes vereinbart. Erfüllungsort ist die Schweiz und Trogen, AR.
7.2. Gegenüber Kaufleuten, juristischen Personen oder öffentlich-rechtlichen Sondervermögen wird die Schweiz und Trogen, AR als Gerichtsstand vereinbart.
7.3. Gegenüber Personen, die in der Schweiz keinen allgemeinen Gerichtsstand haben, wird die Schweiz und Trogen, AR als Gerichtsstand vereinbart.

7.1. It is the application of German law, agreed. The place is Switzerland and Trogen, AR.
7.2. Compared with merchants, legal persons or public service special asset, Switzerland and Trogen, AR as a jurisdiction.
7.3. Compared with those in Switzerland does not have a general jurisdiction, and Switzerland will Trogen, AR as a jurisdiction.

Now, except for jurisdiction and governing law, I’m not very displeased with the license.  In fact, it’s better for me than many English-language click-throughs that I’ve read.  And I like the way that some of the translations read. Overall, the Google Translation service was pretty darn good, even for something as twisty and potentially complex as a license agreement.

I’m really interested in anyone’s thoughts about the enforceability of such a document without a language clause stating that German would be the language used to interpret the document.  In other words, for a non-German speaker, do I have the defense (even if I click the “I accept” button) to say that I didn’t understand what I was agreeing to because I wasn’t presented a version in my tongue (as the rest of the application was)? Am I obligated to translate the document before clicking “I accept”?

Your comments would be appreciated.

Open Source Software Conditions versus Covenants

Meredith Miller, over on ContractsProf Blog, posted part of a review of an extremely interesting case the other day from the EFF‘s Michael Kwun.

I won’t attempt a rehashing of the analysis – the original is good enough.  But I will summarize.  In the case, the Federal Circuit Court drew a distinction between conditions (those things you must to do HAVE whatever the license is for) and covenants (those things your promise to do WITH whatever the license is for).  The result was a tick in the positive column for open source licensing proponents.

But the underlying argument may have some unforeseen aftereffects in the EULA realm.  Really interesting… and another issue to pay attention to in the future.

Cracking the EULA’s Shell

Wired Magazine has posted an article by Jennifer Granick regarding a few California cases (state and federal) where the judge has decided that the terms of the EULA aren’t as ironclad as they have been for the last 12 years.  Generally speaking, the state court ruled that the terms of an EULA are generally procedurally unconscionable, meaning that they’re going to be seen as contracts of adhesion… and the federal court ruled that vendor’s can’t change the terms of an agreement without providing the customer with notice of the change (ie: simple continued use of a service doesn’t automatically mean you’re bound to the change).  Jennifer does a great job of explaining the logic.

Given the title of the article, Courts Turn Against Abusive Clickwrap Contracts, it would appear that Wired is attempting to sensationalize just a little.  The truth is that the courts’ rulings aren’t that surprising (even if they came from California, a state known to be a little “fringe” about their opinions).  The courts are applying some general contract priciples to EULA’s… which vendors have been lucky enough to avoid for the last decade.  It’s about time.