The terms of service you have to accept before you can see them


I had a few hours to kill at the airport a few years ago before my flight was ready for boarding, so I turned on my laptop and connected to the airport's wireless network. Like most pay services, they way you sign up is to fire up a web browser and go to any web site. Regardless of what site you go to, you are redirected to the "Here's how to buy a day's worth of wireless networking" site.

So far so good.

At the sign-up page, they asked for the usual information and also had a reminder that signing up for the service implies that you have read and accepted their terms of service. There was a link to their terms of service.

Except that when you clicked the link, you were redirected to the sign-up page since you haven't signed up yet.

In order to sign up, you have to accept the terms of service that you can't see until you sign up.

I didn't sign up.

Apparently I'm not the only person who's run into this Catch-22.

Pre-emptive snarky comment: "Microsoft's license agreement for a bloated, inefficient and unreliable operating system is evil, anti-competitive, and offensive." When the legal department asks me to write a product license agreement, I'll keep your feedback in mind.

Comments (30)
  1. pcooper says:

    At one point at least, the pages of the Microsoft Official Curriculum books were shrink wrapped, with the first pages being the license agreement. At the top of the first page, it said that you were agreeing to the agreement by opening up the shrink-wrap (such as to read anything past the first page of it).

    And yes, Raymond, I understand that you have nothing to do with it. But I suspect that plenty of companies end up doing things their laywers tell them to without thinking about what a user actually wanting to read it would think.

  2. John says:

    I personally prefer the WTFPL: http://sam.zoy.org/wtfpl/

  3. The Dell story (first linked in the post) is hilarious. Apparently they saw the error of their ways later, for when I bought a Dell laptop in 2005 there was none of that nonsense.

    A related pet peeve of mine – though minor in comparison to the completely invisible one – is that when you do get to see the EULA before clicking through, eight times in ten it will be displayed in a fixed-size window that is barely large enough to show maybe thirty words at a time. I am somewhat proud of being the cause of an exception to this, though my coworkers thought I was just being unreasonable when I insisted that the EULA click-through dialog in our product had to be resizeable.

  4. Ulric says:

    that first dell link is incredible. In the sense that it’s incredible anyone would be so paranoid about accepting EULAs. Geez. a linux fanboy, of course.  

  5. ::Wendy:: says:

    The pre-emptive snarky comment is absolutely outstanding as one would expect.  Are there any general pre-emptive disclaimers that I could use in business meetings where people make requests that expect me to be more of a goddess than I already am?

  6. ::Wendy:: says:

    The pre-emptive snarky comment is absolutely outstanding as one would expect.  Are there any general pre-emptive disclaimers that I could use in business meetings where people make requests that expect me to be more of a goddess than I already am?

  7. mikeb says:

    > that first dell link is incredible. In the sense that it’s incredible anyone would be so paranoid about accepting EULAs. Geez. a linux fanboy, of course.<<

    Kind of like Raymond, eh?

    Isn’t it more incredible that companies routinely ask people to agree to contracts that are impossible to read?

  8. ezgoing says:

    I agree and will not accept terms of service if I can not read them first.  And unlike most, I do read them before I accept them.

    Ed

  9. Nobody Important says:

    Many years ago I rented a scooter from a hotel in Cozumel.  I was not allowed to see the scooter until after I signed a document confirming that I had personally performed a mechanical inspection of the scooter, verified that it was in perfect condition, agreed that any mechanical difficulties would be my fault, and assumed sole responsibility for the maintenance and repair of the scooter.  I signed the document and took off in a dilapidated  scooter.  Of course the scooter broke down when I got to the opposite side of the island.  I left the scooter on the side of the road and hitchhiked back to the hotel, where I was told not to worry.  At the end of each day, a hotel employee drove around the island and retrieved all the broken scooters.

  10. Nicole DesRosiers says:

    When at the closing meeting for my house, the lady went to great length to tell me that she wasn’t acting as legal counsel, she was just explaining the sections of the agreement to me.  I usually read contracts before I sign them, which, while she encouraged me to do whatever made me comfortable, was obviously taking longer than she had wanted to spend on our meeting.  That said, I discovered many interesting things, such as the fact that the bank could, by contract, take the house from me if it thought I was devaluing the property I was holding in trust until completing my mortgage.  I signed anyways — I’m fairly sure it was boilerplate — but I definitely noted that fact for future reference.

    That was a real eye-opener for me.  How many people don’t know the bank could do that?

  11. Roger says:

    Back in the nineties the company I worked at did Unix and competed with Microsoft.  Our EULA was the usual worthless "no warranty, no rights, no recourse" just like Microsoft’s and everyone elses.  I unsuccessfully tried to get our CEO to actually have something meaningful but he wasn’t standing for any of that.  I thought it hilarious that if you bought a can of baked beans and it turned out to be something different the manufacturer gave you more of a warranty that multi- hundred or thousand dollar software.

    And then Microsoft did something incredible.  The Microsoft EULA changed to say that software was warranted to behave substantially in accordance with the accompanying documentation for 90 days.  So if you buy Excel and on day 91 it turns into a flight simulator then tough, but on day 89 Microsoft warrants that won’t happen.  (Yes I chose that example deliberately :-)

    To this day I believe Microsoft is still the only EULA that warrants something rather than nothing.

  12. denis bider says:

    Correct me if I’m wrong, but with regard to software EULAs, I think ours (the Bitvise SSH client and server) are fairly reasonable, and that they are along the lines of Roger’s comment (there’s actually some sensible stuff in them).

    With regard to airports and hotels that bug you to pay $10 for a day of wireless access, I think that’s just annoying. I so much prefer to stay at a place that puts no pointless barriers between me and the net, where it just works.

    I mean, suppose you walk into a hotel room and want to charge your mobile, but then you realize it costs $10 in coins?

    Interestingly, I have found that motels with no fuss net access tend to dominate in Utah, Arizona, and Colorado, while the pay-for-use annoyance dominates in Vegas.

    Meanwhile, in motels around LA or San Francisco, net access tends simply not to work.

  13. RCCola says:

    "I so much prefer to stay at a place that puts no pointless barriers between me and the net, where it just works."

    …isn’t that a bit of a no brainer?

  14. Brian says:

    I blindly accept EULAs because they have always failed to hold up in court.  Especially the click-through ones.

    Things I have to sign, however, I read much more carefully.

  15. Dog says:

    Of course, companies that do this are in fact nullifying any legal status that the agreement may have had to begin with.

    No court in the world is going to uphold an "agreement" that you weren’t able to read before agreeing to. They may uphold any "common-sense" clauses however.

    Also, note that this very website has the same issue. In order to use it, I have to "agree" to the "Terms of Use", but how do I view those terms without using the site? Even the TOU page has a link to itself at the bottom, implying that the use of the TOU page is subject to the TOU.

  16. hagenp says:

    AFAIK in the EU a license agreement is not valid if you can’t read it before your purchase of the product. (So for software you buy in a shop, it must be on the outer package.)

    Regarding software copying, I much preferred the simple and reasonable old Borland license, see

    http://en.wikipedia.org/wiki/Turbo_Pascal

  17. Ulric says:

    exactly, there is no point in being paranoid about EULAs that are not valid.

    in any case, EULAs are mostly about protecting the company from getting sued, no one is going to sue you.  And you can always return products after.  That’s where the Dell guy has totally gone insane.

  18. Marc says:

    No one reads EULAs, even Google just copy and paste them from one product to the next.

    It does seem odd that you can install software and it will say "I might not work, I might mess up your computer, but hey it’s not my fault"

    Still I am sure that where it matters, EULAs are actually read. Imagine a typical Microsoft EULA on an aircraft’s auto pilot system!

    On second thoughts, imagine a Microsoft auto pilot system? "Where do you want to go today?" (says the little Paperclip)

  19. Mike Dimmick says:

    Brian, if your EULA fails to stand up in court, it will revert to the default position: you have no license.

    The EULA does not REMOVE rights, it GRANTS rights. Software is copyright, which means that (by default) only the creator has RIGHTS to make COPIES. Installing software to your hard disk? Making a copy. Running the program? Making a copy in RAM. The copyright owner grants you a license to make these copies; their terms for that license is the EULA.

    You may not like it but that is the law.

  20. Peter says:

    Mike: That’s fascinating, but doesn’t actually work that way because all that copyright does is prevent you from making copies of software. Licenses like the GPL grant you the ability to do so, but a typical proprietary EULA does not.

    My understanding is that courts in at least some countries (including the US I think) have held that if the program automatically copies itself in order to run it doesn’t count as a copy.

    The software makers argue that you aren’t "buying" the software in the first place, you’re "licensing" it, so you have to agree to the EULA in order to use it. But all of this has not been conclusively proven one way or t’other in court.

    Personally, I don’t see why they’re really necessary. Copyright prevents you from burning thousands of copies and selling them for $5 each, which is what they really want prevented. Half of the other clauses often can’t be upheld anyway (eg. the "fitness for merchantability" or reverse engineering clauses are often trumped by other laws).

  21. Narr says:

    courts in at least some countries (including the US I think)

    have held that if the program automatically copies itself

    in order to run it doesn’t count as a copy.

    The US Code, Title 17, Chapter 1, Section 117:

    …it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

       (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or

       (2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

  22. mikeb says:

    > The EULA does not REMOVE rights,

    Wrong. The typical EULA does remove rights. As Narr indicated, copyright law allows you to make the copies (onto local hard disk or RAM) that are required for software to function.

    If I purchase a copyrighted item, I am permitted to use it as I see fit, but I am still prevented from copying it.  EULAs go further by adding additional restrictions that do not exist in a normal purchase of copyrighted goods.

    If I purchase something that is simply copyrighted, here are some of the things I am permitted to do that many EULA’s attempt to prevent (how enforceable these are, I don’t know):

    • study: many EULA’s have a clause that restricts studying what you have purchased to determine how it works

    • resale: many EULA’s have a clause that take away your right to resell what you have purchased.  Some hardware companies have even used this to make it difficult to resell hardware that you have purchased (http://www.infoworld.com/article/03/08/08/31FEfair_1.html)

    • use: many EULAs restrict where you can use the software you’ve purchased.  Prohibitions might include platform, virtual machines, or whatever.

  23. Carlos says:

    Mike Dimmick said: "Software is copyright, which means that (by default) only the creator has RIGHTS to make COPIES. Installing software to your hard disk? Making a copy. Running the program? Making a copy in RAM."

    As others have pointed out this isn’t true under US law, but it is true in the UK – it was the basis of Sony winning a judgment against a Playstation mod-chip vendor.

  24. 640k says:

    This reminds me of every eula M$ ever released. There’s even a Dilbert strip about it.

  25. Igor Levicki says:

    >The EULA does not REMOVE rights

    Oh yes it does — for example it prohibits reverse engineering among other things.

    Unfortunately reverse engineering is sometimes neccessary to make the program work as intended, especially if the company which produced it went out of business or stopped actively supporting it.

  26. Bryan says:

    Whether an EULA removes rights or not is more an argument of semantics.

    Really, the focus should be that the EULA is designed to govern usage and licensing.  Generally, this includes disclaiming any liability (for good reason) and providing specific remedies where necessary.

    I’ve seen a few EULAs now encompass privacy policies, which I’ve always found very odd.

  27. Worf says:

    Actually, most licenses, compared to standard copyright law, reduce what you could otherwise do under copyright law (e.g., reverse engineer, sell/transfer ownership, etc). There is, however, a class of licenses that let you do more than what copyright law would allow – these are often referred to as "Free Software Licenses" (and not to be confused with "Open Source Licenses") – the idea being, you don’t have to accept them (in which case the use of the software is governed by copyright law). However, if you want the benefits of the license, which include stuff like being able to make copies (and sell them), you must obey them, otherwise it’s standard copyright infringement. Not accepting a regular EULA means you can’t use the software, period, even if you could under normal copyright law.

    As for privacy policies – think of the EULA as the "default" policy. If they say in the EULA that they gather information, well, no big surprise – by continuing to use the software, you agree to let them gather information. If they didn’t say that, well, it’s really open to the courts to determine if they’re allowed to gather information or not, since you didn’t agree to it initially… but since the contract didn’t say anything about it, the courts will have to resolve the ambiguity.

  28. Michiel says:

    To address a few misconceptions:

    EULAs prevent reverse-engineering, even if a company goes out of business: No. Since it’s a contract between parties, it ends when one of the parties ends (see local law for details).

    EULAs should be shown during installation: No. That’s why it’s an EULA. In busniess contexts, the administrator installing is acting on behalf of the company. A parent, on behalf of children. But in general, the administrator can only accept on behalf of himself.

  29. SuperKoko says:

    I used to visit a Web BBS. One day the administrator tell me that I had no right in "blocking" (or not downloading) Flash Ads.

    After a lengthy discussion I understood that:

    1) I wasn’t allowed to use a browser without flash support or with flash animations disabled.

    2) There was no "need" of any explicit visible or hidden (e.g. in a subpage) written agreement for these rules to apply. He said his internet server is a private space and so, he has, implicitly, any right on the site usage, even though the access is public.

    I guess he thought that HTML is a legally enforced imperative language and OBJECT/EMBED elements are orders to download, play, and carefully listen to the linked document.

    Since then, I don’t visit this site anymore.

  30. Bill says:

    Nice try, Raymond, but as long as you work there, you are knowingly supporting the actions of that legal department from which you so hastily distance yourself.

    Microsoft couldn’t have been half as evil as it has been in the past (and, arguably, continues to be) if people like you didn’t let it happen while pointing fingers at other people in the company.

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