I'm glad to see the wider exposure, but I don't see anything new here---this is essentially the same issue I ranted about two years ago (http://www.blahedo.org/blog/archives/001060.html). Right down to the "why don't they provide a diff?" problem.
Why shouldn't iTunes be used? Is there a problem with using iTunes instead of the others? Something has to be used as an example, surely, so why not a prominent and widely installed program that most "normal people" have used? Is there a reason you feel like you need to defend Apple and iTunes and ask the OP to pick on some other product? Apple is now bigger than Microsoft, they don't need a babysitter anymore.
As a sibling comment pointed out, 56 pages is much longer than the EULAs you've referenced here, so iTunes kind of stands out anyway.
EDIT: After actually looking at the article (heh), the reason they chose iTunes is because Seth Meyers' joke mentioned iTunes specifically ("You pass bills the way we agree to iTunes Terms and Conditions updates"). Is that a good enough reason to discuss something Apple has done in a non-gushing way?
I think the biggest reason that nobody reads these is because of the sheer size of EULA documents. They're dense paragraphs upon paragraphs of legal text. I don't think that it's the legalese that scares people away, but the fact that page numbers in the double digits is the norm.
I've found that reading and understanding is not particularly difficult, but when I install iTunes/Windows/whatnot, it's because I want to use that software. I'm sure a lot of people agree that they don't want to spend twenty, thirty minutes reading through a license that says approximately the same thing every other EULA has said before.
A shortened summary in plain English (or language of your choice, I suppose) would be best, but as the article points out, that would open them up to all of the legal holes that those 56 pages were busy closing. Creative Commons' "human-readable" licenses (http://creativecommons.org/licenses/by/3.0/, compared to http://creativecommons.org/licenses/by/3.0/legalcode) are a good idea and one that I support, but as far as I know they haven't been tested in court, which makes it difficult for a company with large amounts of money at stake to embrace that.
Last time I looked over it (I don't actually use iTunes anymore), a lot of the EULA was devoted to the content and how you can't pirate it, and so on. That seems to me to be the very things that the RIAA and other groups sue over. So even though you are correct, Apple's specific terms of use have not been tested, the idea (and who knows, possibly wording as well) behind it has been successfully used in court by the owners of the licensed materials.
I am able to buy CDs without signing any contract at all. So it appears that a contract is not necessary for copyright infringement to still be illegal and the contracts are completely unnecessary for the stated purpose of "preventing piracy", which is already illegal, even without a contract.
When Paypal updates their EULA and various other policies I get an email about it and I can't remember if it's the link or in the email itself but it has a summary of what has changed since the last one.
I believe the analysis of item #3 is incorrect. The explanation of not actually owning the product, while correct, is not the rationale for this section of the document. Can anyone with legal knowledge back me up on this?
3. Licensing: The terms state, "You agree that the Service, including but not limited to Products, graphics, user interface, audio clips, video clips [and] editorial content ... contains proprietary information and material that is owned by Apple and/or its licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright."
That sounds confusing. Handel explained it this way: When we buy something from iTunes, we are paying for the license to listen to music or watch a movie on our iPhone or other Apple device. But we are not buying the product itself and so we can't actually own it, he said.
"When you buy a book, you own the copy of that book but not the actual material," Handel said "What you are buying here is right to use music on certain devices."
The reference here is not to the items you're purchasing but rather "Products, graphics, user interface, audio clips, video clips [and] editorial content" - meaning the stuff they use to SELL/MARKET the music/movies/etc in iTunes, not the products themselves. They're talking about the reviews, the images, the sound clips or trailers, the actual iTunes interface - not the stuff you're buying.
I'm not a lawyer either, but it seems to me that you are correct. They analyzed a different section (which is in several of their EULAs; under the Mac/iPhone App Stores' as "USE OF PRODUCTS AND THE SERVICES " and under iTunes' as "USE OF PURCHASED OR RENTED CONTENT") while quoting a section that stated that you couldn't reverse-engineer iTunes itself. A sample of what they're referring to:
Apple is the provider of the Services that permit you to license software products and digital content (the “Products”) for end user use only under the terms and conditions set forth in this Agreement.
[snip]
You agree that the Services and certain Products include security technology that limits your use of Products and that, whether or not Products are limited by security technology, you shall use Products in compliance with the applicable usage rules established by Apple and its principals (“Usage Rules”), and that any other use of the Products may constitute a copyright infringement.
I'm no lawyer, but from my understanding you're interpreting it correct. Apple would however, even if just as a proxy, technically own any movies you are renting, just as Netflix owns any DVD's they ship you, even if they'll eventually be returned to Sony or somewhere, or used as coasters or Frisbee's around the Netflix offices.
Where do they get 56 pages? The document they link to is only 20 pages if printed, and is really 4 documents:
1. The terms of sale for the the iTunes store, the Mac app store, the iOS app store, and the iBook store.
2. The iTunes store terms and conditions.
3. The terms and conditions for the two app stores and the iBooks store.
4. Their privacy policy.
They don't link to it, but there is a EULA for the iTunes application itself. That's 79 pages. However, it includes 18 copies of the license, in 18 different languages. The English part is 2 pages--and it isn't even all Apple. It includes separate terms and conditions for Gracenote's CD identification service and 3Com's Kerbango Tuning Service.
Looking at it just item #2 you cite now, it alone is over 15,000 words long. The standard pagination formula used for paying for articles is 250 words per page.
Therefore, a standard legal definition of the length of this contract is that it is 15,000/250 = 60 pages long.
Wouldn't it be great if you could view the changes in a contract instead of the entire contract? And get other opinions of what the implications of each are?
It’s unlikely that Apple and the other EULA-providers would bother showing diffs, and they wouldn’t show user comments because of the legal dangers, so this would have to be a third-party service.
It could be a website where you can copy a random portion of the text from an updated EULA and paste it into a text field on the home page, and the site would take you to a page containing the latest version of that EULA, readably formatted. Alongside, it could show diffs and comments.
I wonder, is it legal to copy and display the EULAs themselves elsewhere? If not, is it legal to copy just the diffs?
Many of these contracts contain a clause that the company can change the contract in the future without restriction and without necessarily notifying you of the changes, and you agree in advance to the changes, without knowing what they might be.
Apple has a version of this: "Apple reserves the right at any time to modify this Agreement and to impose new or additional terms or conditions on your use of the Service. Such modifications and additional terms and conditions will be effective immediately and incorporated into this Agreement. Your continued use of the Service will be deemed acceptance thereof."
Note that no notification is necessary of the changes to obtain your consent.
If these sorts of contract clauses are really legally binding there is a very serious problem with the legal system.
A fundamental limitation on contracts is you must gain something for any contract or contract update to be binding. So EULA's are only enforceable if you don't already have the right to use the software / service. In other words, Sony could not prevent people from using other OS's on Plantations that where not updated, but a patch could constitute value that allows them to get a new contract with you. As to a service like Facebook things get a little more tricky (and I don't know how that works out).
We really need some more regulation in this area. "Standard" legal agreements are gradually eroding the rights of everyone, because while they are not law, every company you do business with uses the same "standards".
For example, try obtaining wireless phone service where you can sue the carrier if they wrong you in some way. You can't because every provider has "mandatory binding arbitration" clauses. If you have a problem, some business that the provider pays money to gets to render a decision on your behalf. Guess who they usually side with.
European law could be the model here. eg. In the UK such contracts are simply and plainly unenforcible because of Unfair Contract Terms Act 1977 and Unfair Terms in Consumer Contracts Regulations 1999.
Web contracts are an abomination. They are non-negatiable and are foisted on people who have no ability to obtain proper legal counsel. The cost for a qualified IP contract attorney to do an adequate document review of this document and explain its consequences to a typical member of the public that it is imposed upon would be more than $1000 per review. That would be necessary to enable informed signing.
We need laws getting this under control. These contracts should not be binding. The consumer side has no chance of understanding them even when they do read the documents. That means there is no real consent and no real moral contract. If companies insist on these extremely complex contracts for routine transactions, the companies should pay the full cost of legal representation for the other party.
I've read through all the comments but for some strange reason no one has mentioned the forced requirement of using KERBANGO TUNING SERVICE. How can you gloss over a requirement to use a 3rd party software when that isn't even the product you are trying to download? Do you boot up in the morning and wonder where that new toolbar came from? Do you ever wonder why your system is so slow? Forget the legal-ease, start wondering why your system runs so bad & you have stuff on it you don't want.
27 comments
[ 523 ms ] story [ 1235 ms ] threadAs a sibling comment pointed out, 56 pages is much longer than the EULAs you've referenced here, so iTunes kind of stands out anyway.
EDIT: After actually looking at the article (heh), the reason they chose iTunes is because Seth Meyers' joke mentioned iTunes specifically ("You pass bills the way we agree to iTunes Terms and Conditions updates"). Is that a good enough reason to discuss something Apple has done in a non-gushing way?
I've found that reading and understanding is not particularly difficult, but when I install iTunes/Windows/whatnot, it's because I want to use that software. I'm sure a lot of people agree that they don't want to spend twenty, thirty minutes reading through a license that says approximately the same thing every other EULA has said before.
A shortened summary in plain English (or language of your choice, I suppose) would be best, but as the article points out, that would open them up to all of the legal holes that those 56 pages were busy closing. Creative Commons' "human-readable" licenses (http://creativecommons.org/licenses/by/3.0/, compared to http://creativecommons.org/licenses/by/3.0/legalcode) are a good idea and one that I support, but as far as I know they haven't been tested in court, which makes it difficult for a company with large amounts of money at stake to embrace that.
3. Licensing: The terms state, "You agree that the Service, including but not limited to Products, graphics, user interface, audio clips, video clips [and] editorial content ... contains proprietary information and material that is owned by Apple and/or its licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright."
That sounds confusing. Handel explained it this way: When we buy something from iTunes, we are paying for the license to listen to music or watch a movie on our iPhone or other Apple device. But we are not buying the product itself and so we can't actually own it, he said. "When you buy a book, you own the copy of that book but not the actual material," Handel said "What you are buying here is right to use music on certain devices."
The reference here is not to the items you're purchasing but rather "Products, graphics, user interface, audio clips, video clips [and] editorial content" - meaning the stuff they use to SELL/MARKET the music/movies/etc in iTunes, not the products themselves. They're talking about the reviews, the images, the sound clips or trailers, the actual iTunes interface - not the stuff you're buying.
Apple is the provider of the Services that permit you to license software products and digital content (the “Products”) for end user use only under the terms and conditions set forth in this Agreement.
[snip]
You agree that the Services and certain Products include security technology that limits your use of Products and that, whether or not Products are limited by security technology, you shall use Products in compliance with the applicable usage rules established by Apple and its principals (“Usage Rules”), and that any other use of the Products may constitute a copyright infringement.
1. The terms of sale for the the iTunes store, the Mac app store, the iOS app store, and the iBook store.
2. The iTunes store terms and conditions.
3. The terms and conditions for the two app stores and the iBooks store.
4. Their privacy policy.
They don't link to it, but there is a EULA for the iTunes application itself. That's 79 pages. However, it includes 18 copies of the license, in 18 different languages. The English part is 2 pages--and it isn't even all Apple. It includes separate terms and conditions for Gracenote's CD identification service and 3Com's Kerbango Tuning Service.
Therefore, a standard legal definition of the length of this contract is that it is 15,000/250 = 60 pages long.
It could be a website where you can copy a random portion of the text from an updated EULA and paste it into a text field on the home page, and the site would take you to a page containing the latest version of that EULA, readably formatted. Alongside, it could show diffs and comments.
I wonder, is it legal to copy and display the EULAs themselves elsewhere? If not, is it legal to copy just the diffs?
Apple has a version of this: "Apple reserves the right at any time to modify this Agreement and to impose new or additional terms or conditions on your use of the Service. Such modifications and additional terms and conditions will be effective immediately and incorporated into this Agreement. Your continued use of the Service will be deemed acceptance thereof."
Note that no notification is necessary of the changes to obtain your consent.
If these sorts of contract clauses are really legally binding there is a very serious problem with the legal system.
90-sec clip #1 (SFW): http://www.southparkstudios.com/clips/382781/business-casual...
60-sec clip #2 (NSFW): http://www.southparkstudios.com/clips/382785/im-gonna-clickd...
Full Episode (NSFW): http://www.southparkstudios.com/full-episodes/s15e01-humance...
Note that the full episode is down until May 27, 2011 due to "contractual agreements" (e.g. bookmark for later).
For example, try obtaining wireless phone service where you can sue the carrier if they wrong you in some way. You can't because every provider has "mandatory binding arbitration" clauses. If you have a problem, some business that the provider pays money to gets to render a decision on your behalf. Guess who they usually side with.
http://www.oft.gov.uk/about-the-oft/legal-powers/legal/unfai...
https://secure.wikimedia.org/wikipedia/en/wiki/Consumer_prot...
I should note this only applies to consumer contracts. With contracts between businesses it's expected that they do know what they're doing.
We need laws getting this under control. These contracts should not be binding. The consumer side has no chance of understanding them even when they do read the documents. That means there is no real consent and no real moral contract. If companies insist on these extremely complex contracts for routine transactions, the companies should pay the full cost of legal representation for the other party.