A key factor here should be the complexity of the agreement compared to the value of the transaction.
If you're buying a house, you're laying out at least six figures and can be reasonably expected to read the fine print or hire somebody to do it for you, even if it takes multiple hours or several hundred dollars. If you're buying a $1 app or using a free service, expecting the same thing is facially absurd.
Meanwhile if you're buying a $5 bottle of drain cleaner, it's ridiculous to expect someone to read 20 pages, but 20 words is not so unreasonable.
This also bodes ill for "we may update this agreement at any time" because that's imposing the burden of re-reading the agreement every time you change it, which is pretty unreasonable for anything where the other party isn't paying you (or getting paid by you) hundreds or thousands of dollars a year.
Trying to paraphrase: Transaction costs should be proportional to value of transaction.
Such inquiry will help daylight the value these hoarders derive from our data.
"Misuse of this product is dangerous and may cause death. Advil is not responsible for damages caused by misuse. Read and follow instructions on back of bottle"
That's a bit wordy but it indicates who is responsible (you) and what the gravity of the situation is (possible death). With that established, it means the onus is on the user to do more reading.
IANAL but I would like to belive something like that would satisfy all parties.
I emphatically disagree. In https://news.ycombinator.com/item?id=23566627 I take a sample from Apple's privacy policy that is written at a college reading level, and show how a rewrite can say more, in less words, while being readable at a grade 7 level.
This is merely an example illustrating that the vast majority of complexity in legal documents is driven by lawyers trying to look smart and not caring how impenetrable their prose is.
Furthermore I believe we are one well-argued case away from concluding that consumer contracts are not enforceable if the language is too complex. Consider. You only have an enforceable contract if there is a meeting of minds. Automated complexity tests show that most consumer contracts require college level reading level to understand. Per https://www.wyliecomm.com/2019/03/us-literacy-rate/ it turns out that only 2% of US adults read at that level. Therefore no contract can exist with anyone in the remaining 98% of the public.
For comparison, 13% of Americans speak Spanish. Which means that if you the average consumer contract would be understood by more Americans if it was rewritten into plain Spanish!
We all know that this is true and the current state of affairs is beyond absurd. I do not believe that this absurdity will survive indefinitely.
We already have automated tests of language complexity. There already are courts that have said that materials have to be available to consumers in a form that they can understand. For example see http://www.illinoiscourts.gov/Media/enews/2018/032118_plain_... for such a ruling in Illinois. To end the absurdity just takes one clear precedent saying that a contract is not enforceable if not understood, and cannot assume to have been understood by the average consumer if it requires a reading level of over X on test Y.
There are certainly terms of art that have well established meanings in certain fields but those should be used sparingly and don’t explain the massive amount of cruft in most contracts.
No one is well served by using deliberately arcane language.
Check out Ken Adams’ books and blogs[1] if you’d like to read more about this.
[1]: https://www.adamsdrafting.com/a-proponent-of-tested-contract...
Also, just having a lawyer read it isn't sufficient. They still need to communicate to you whatever information you need to be able to avoid violating the contract/law (if that is your intent).
EULAs all the way down...
Merely providing a bullet point summary of the contract (as I’ve seen some do, iirc GoG.com is one) is not enough—those bullet points would need to actually become the contract of record.
There is no reason the absence of contracts should lead to a breakdown of the tech industry. Tech companies are already protected by extremely generous copyright laws. Maybe they wouldn’t be able to collect everyone’s data all the time, but that’s a good thing.
I can’t speak as much to other industries because I know less about them. But I think e.g. landlords have a reasonable expectation that renters do read their contracts. I know I read my lease—that seems like a normal, reasonable thing to do. Reading a software ToS or Privacy Policy is, by contrast, exceptionally abnormal.
I also imagine it was much shorter than a typical software ToS/EULA.
> Reading a software ToS or Privacy Policy is, by contrast, exceptionally abnormal.
Part of the cause here is path dependence - we've been conditioned to ignore EULAs in the pre/early-Internet era, back when software walked and quacked like a product, not a service.
What else is in ToS’s that tech companies absolutely must be able to enforce?
If we want to get rid of these complicated 'agreements', we need to change the way our legal system operates.
No the Courts do not require complexity.
The famous example in law school being writing a agreement on a cocktail napkin being an enforceable contract.
The legal system may be in need of reforms, but in these instances the complexity and length of tech company TOS or PP is a direct result of these entities having an army of in-house and outside counsel looking after their own interests.
There is simply a power imbalance between FAANG companies and even their most legally savvy and educated user. This has nothing to do with the courts, and if you don't believe me, then reach out to one of the FAANG legal departments and tell them you want to use their service but need to negotiate the TOS/PP first.
Google "contract on a cocktail napkin", most of the top results will be for million dollar contracts on cocktail napkins...so maybe we just have a different opinion about "enforceable, but almost worthless."
IANAL, but I have never heard of a lawyer writing a contract on a napkin, or advising a client to do so; and they say verbal contracts are worth the paper they're written on.
Where did I or anyone say that is what lawyers advise. In fact I specifically said it is because of their army of lawyers tech companies have long and complex TOS and PP.
The point is TOS and PP are not complex because Courts require them, and the cocktail napkin contracts are examples (the pinnacle law school example) of how simple contracts can be while still being enforceable.
>Contracts are only important when there is a disagreement.
No, contracts are most important before the disagreement because they are what help avoid the disagreement. It would be very difficult to explain in this forum, but if you know what Summary Judgment is, breach of contract cases essentially never end in summary judgement, which is actually very counter intuitive because one would think with all breach of contract case should end in summary judgement...because the contract should speak for itself right? In other word one would think either the contract was performed/breached or it wasn't right? The thing is whether a contract was performed or breached is a question of fact for the fact finder; thus, contract cases never end at summary judgement and would always have to go to a finder of fact (judge or jury). You would probably have to spend a semester or 2 to fully grasp this concept and even then, it probably takes some actual practice of law with contract cases to fully grasp why contracts do not resolve contractual disagreements. The reality is once there is a dispute and you are seeking enforcement you would much rather have the cocktail napkin than a complex agreement, it will save you years of litigation and the cost of the same.
Yes that is generally what breach of contract cases are about...do you think a breach of contract case for extremely complex agreements are any different in nature?
Do you think there are more or less questions regarding interpretation, intent and meaning, with respect to complex agreements or simple agreements? In my experience litigating these matters the more complex an agreement the more protracted the litigation, in fact in some of the jurisdiction I practice there are specific divisions (complex civil litigation divisions) where those types of agreements generally end up.
Eg.
To use this service, you agree:
* You have no criminal convictions
* You have only 3 donkeys.
* No family member has ever owned a kazoo.
[ I agree ]
Copyright (c) <year> <copyright holders>
Permission is hereby granted, free of charge, to any person obtaining a copy
of this software and associated documentation files (the "Software"), to deal
in the Software without restriction, including without limitation the rights
to use, copy, modify, merge, publish, distribute, sublicense, and/or sell
copies of the Software, and to permit persons to whom the Software is
furnished to do so, subject to the following conditions:
The above copyright notice and this permission notice shall be included in all
copies or substantial portions of the Software.
THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE
AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER
LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM,
OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE
SOFTWARE.
So yeah, I'm going to go ahead and continue to believe that these EULA's are definitely not written with the user in mind.
Cases on behalf of Larry Ellison, however...
Is this a bug or a feature?
>as they are based on the idea that consumers can and should read lengthy, confusing documents.
The resolution of such lawsuits are based around the notion that consumers should be able to read such documentations. The law suits themselves are about a deeper issue of consent. I would see this action as nullifying the resolutions but not the problem. It is unjust, but to the consumers.
Contrary to what you think it is very possible to have short legal agreements. The GDPR data policy basic template is quite comprehensive and rather short for instance, although it could get better. We could also imagine some informative shortened version with icons and standardized information in the same way you have for food components or drug warnings, or crucially apps permissions nowadays, that would cover 95% of the legalese in the user agreements.
[1] https://www.abajournal.com/news/article/chief_justice_robert...
Under common law, there is no legal contract without a meeting of minds. There can be no meeting of minds without comprehension. Per studies of reading abilities, only 2% of Americans read at a college level. (See https://www.wyliecomm.com/2019/03/us-literacy-rate/ for a source.) Therefore such contracts should not be legally enforceable on the other 98% of Americans.
This reasoning applies only to contracts where members of the general public were expected to review the contract unassisted. By contrast in a business contract where both sides retained legal counsel, the complexity of the language is not prima facie evidence that the contract was unlikely to be understood.
If we decide that uninformed consent is still consent, we open a significant problem. And if we try to patch it by selectively applying the standard, we introduce arbitrariness which is an even larger problem.
I should add that despite what people here are saying, the complexity of the wording is usually driven by legal requirements, not a desire to confuse people.