So one of the jurors in the MySpace trial reads
every terms of service agreement she encounters, but does anyone else? And if not, why not? New York Law School professor
James Grimmelmann explains why companies have them and why we think we can ignore them.
BOB GARFIELD: So we know that one of the jurors in the Lori Drew case reads every terms of service agreement, but does anyone else? And, if not, why not? James Grimmelmann teaches law at the Institute for Information Law and Policy at the New York Law School. He says terms of service agreements exist because lawyers want to protect companies from any possibility that anyone could go after them, for anything. JAMES GRIMMELMANN: Could we get sued because we didn't warn people there might be disturbing content here? Could we get sued because we kicked somebody off for being abusive? They don't rely on the fact that you actually know what terms of service are. They just need to be able to say that you said you agreed, and you could have read them. Therefore, don't hold your failure to do so against us. BOB GARFIELD: Okay, but it’s still a legally binding contract, right? JAMES GRIMMELMANN: The courts have been pretty clear that if they make you check a box to agree and give you a chance to read the terms, then that counts. If it’s just a link at the bottom of the website, something you could have clicked on but may never have seen, that’s still unsettled. BOB GARFIELD: Okay, so I subscribe to iTunes and in order to do that I have to go through like 29 single-spaced pages of various [LAUGHING] disclaimers and click “I accept.” And now I have iTunes but what else have I got? Have I got any kind of personal legal liability? JAMES GRIMMELMANN: You've agreed to potentially some scary things. You've agreed to let them potentially sue you in California, you have agreed to hold them harmless if they cause your computer to emit smoke and blow up, and you've definitely agreed to pay for anything that you purchase on iTunes, even if it was your dog clicking the mouse. BOB GARFIELD: And I guess if the precedent in the Lori Drew case holds up, I've also put myself in jeopardy of jail for hacking should I, say, share a 99-cent iTune with my wife. JAMES GRIMMELMANN: Exactly. One way of thinking about these is that the terms of service are essentially no shirt, no shoes, no service for online sites. [BOB LAUGHS] And we've now taken an interpretation that would make being barefoot a crime. BOB GARFIELD: Now, [LAUGHS] I have, over my lifetime, bought many automobiles and also had quite a number of mortgages, and I have sat there turning page after page, initialing and ultimately signing away God knows what, without going over those documents. And I think that’s probably fairly common. But it’s also fairly common for people to read every word. Is there anyone who reads every word of the iTunes terms of service or anybody else’s terms of service? JAMES GRIMMELMANN: No. There’s a great study out of Carnegie-Mellon that looked at whether people read privacy policies, which are one component of these terms of service, and they found that if Americans read the privacy policies on all of the websites they visit, it would cost 365 billion dollars a year in lost time. [BOB LAUGHS] No one reads these things. It’s just not sensible to do it. BOB GARFIELD: You mentioned early on that the terms of service agreements are written by lawyers for the purposes of covering the corporate backside against any eventuality. But sometimes, I suppose, that would get in the way of appealing to potential users. Is there a countervailing force at corporations to make terms of service agreements briefer, simpler and less onerous? JAMES GRIMMELMANN: If the lawyers had their way, you couldn't use the website until you sent in a signed paper contract agreeing to all of the terms. And, of course, the developers and the marketers say, you cannot do that. No one would come here if you made them do that.
The rough compromise that gets worked out on most sites is that you don't have to click agreeing to anything, until some point when you would have gone through a complex process anyway. Maybe it’s the point when you enter your credit card information when you’re placing an order. Maybe it’s the point in time when you create an account, anytime when they have to force you to go through a long screen anyway to supply information. And at that point, who cares if we give the lawyers their say?
There are really no forces at all, though, that are operating to make the terms of service shorter and easier to read. BOB GARFIELD: I have to ask you, I don't know if there’s any legal way to analyze this, but it all seems like so much kabuki or shadow puppetry or something, where companies pretend that users read this stuff, and users pretend that they’ve read it, and click “I accept,” and law has taken place. [LAUGHING] Am I crazy? JAMES GRIMMELMANN: In one sense you've just described the magic of the legal system. What makes these online contracts, these terms of service, so strange is that the little rituals people go through are so obviously artificial and so divorced from anything people think about in their daily lives. BOB GARFIELD: Well, James, thank you very much. There’s a document you'll need to sign on the way out of the studio. It’s a release. You can either sign it when you leave or you could simply say “I accept” right now. JAMES GRIMMELMANN: I accept. BOB GARFIELD: James Grimmelmann is [LAUGHS] an associate professor at the Institute for Information Law and Policy at New York Law School.