I do it. You do it. Everyone does it. Especially at night, when you just want what you want, and you sail through promises and whispers of commitment – saying anything that works to attain the goal you want so badly.
Of course I’m talking about end-user agreements; you know, those little windows that stand between you and the digital content or rare web item you’ve just got to have. In our frenzies, we click “yes,” “accept,” “I Agree” – whatever it takes to download that file, buy that tchotchke or get that membership. Do you read the agreement? No. Do you take the time to even scroll down to the end? Hell no.
And that frenzied clicking has gotten a couple of people in trouble. Not just from the transaction, but the aftermath of the sale gone sideways.
In a most stunning development (when I read the account, I was floored) of end user agreements gone awry, it turns out that these shoppers really got taken when they clicked that aforementioned button. They bought some stuff from a website (isn’t that how all of these stories begin), and the service wasn’t quite up to par. In fact, it was non-existent. Sure, they got their merchandise, but it was late and not in good shape. When the unlucky couple called the site’s customer service, they didn’t come away with any hope the problems would be resolved. So they did what some of us do; they went to another website that allowed them to report the issues they had with the first company – likely to get some of the frustration off of their chests and warn anyone else unlucky enough to cross paths with the retailer. By the way, they had to click an end user agreement with the second site.
Then, the fun started. Turns out in the EULA for the retailer, there was a clause that stated if the client complained about the products they received or the service they obtained in print or on the Internet, the client would be assessed with a $4,000.00 fine. You see where this is headed; the buyers complained, the retailer found out about it, and charged the poor folks $4,000.00. But, there was an escape clause – if the buyer recanted or deleted the negative things they said about the retailer, the $4k would be forgiven.
Hooray! Because, in this day and age, most of us don’t have four thousand dollars just laying around, they scrambled back to the second website to get their comment removed. When they tried to take the damaging, albeit truthful, post down, they were informed that to do so, they needed to pay the second website $2,000.00 to erase their negative comment. At this point, the couple are stuck between a rock and a hard place. Last I heard, an attorney took up their cause pro bono.
The most trenchant commentary I have seen thus far is on an episode of South Park. In it, Cartman (the jerky character) always clicked yes to EULA’s without reading them. When he asked if the other boys in the group just clicked yes to EULAs, they all informed him that there was no way they would click yes before first reading the document. In the end, it turned out that Steve Jobs slid a clause in the Apple EULA that required everyone who agreed to become a part of a human centipede. Thus, Cartman was shown the error of his ways.
Now, can we read every EULA we enter into. Yes. Is it an expeditious use of our time? Probably not. These things are all boilerplate, really. If you’ve read one, you’ve read them all. However, in a very small percentage of cases, there are clauses that could cause you some serious damage.
Is it legal to include these punitive clauses in EULAs? Yes. Is it accepted? Not really. Are they ripe for legal challenges? Certainly. The problem is, a legal challenge would cost as much as the fine contemplated in the EULA. So what do you do?
Here’s a trick – read one or two of them from start to finish. Get familiar with the section headings and terms that are used. Once you’re armed with that knowledge, scan all of the future ones you’re asked to enter. By that time, you’ll immediately see something that’s out of place.
That is, unless you want to become a human centipede. Then, I really don’t think anything can help you.