A self-appointed wing of the American judicial system is about to make it much harder to fight terms of service

Originally published at: https://boingboing.net/2019/05/22/kafka-in-robes.html


what a surprise that the ALI is bought by the very companies that write such EULAs.


I think the main issue is if want to say strike out binding arbitration, etc. the choice is simply I can’t use the service/software. So accept these draconian terms or fuck off isn’t a good set of options.


The Restatements are what it says on the box: restatements of common law established by courts. They’re a bit like encyclopedias of the law (or at least like what encyclopedias used to be). They are influential and useful because they provide an easy, and usually relatively clearly drafted, reference for lawyers who may be unfamiliar with the details of an area of the law.

Although sometimes they suggest areas where the law should develop, they are primarily designed to say “This is what courts have generally determined that the law is.” Fundamental ideas like “EULAs are contracts” aren’t coming from the ALI; they’re coming from court cases. E.g., ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996) (“Shrinkwrap licenses are enforceable unless their terms are objectionable on grounds applicable to contracts in general (for example, if they violate a rule of positive law, or if they are unconscionable).”). As the Restatement at issue itself notes in its introduction, the rule the Vice article is complaining about “reflects an approach, widely embraced by a large majority of courts, that enables businesses to design the terms of the transaction, as long as they provide reasonable notice and meaningful opportunity to review the terms and to avoid the transaction.”

It would be great if the law on TOSes and EULAs were otherwise, but blaming the ALI’s (as-yet-unpublished!) Restatement for where the law currently is or may be headed is a lot like pinning the blame on this wikipedia article for the rise of the Alt-Right.


Any time we have to pay for a thing before you can see the TOS or EULA, we should not be expected to comply in any way.


I think the Attorneys General who signed onto the protest letter, all of whom are attorneys & so presumably understand the function of an ALI Restatement, are making the point that this particular Restatement is incorrect, that incomprehensible or unreadable EULAs do indeed violate contract law & are unconscionable.


¯_(ツ)_/¯ Not sure what to tell you, other than that as an attorney who also knows how to use boldface, I have somewhat regularly seen consumers get the shaft via EULA and other contracts of adhesion. After all, if courts weren’t already enforcing EULAs and TOSes in arguably unconscionable ways, Cory wouldn’t have anything to write about.

I won’t pretend to have dug into the details of this particular dispute, and maybe they have a legal point beyond the policy position they are articulating in the joint letter. But nothing they are complaining about strikes me as particularly out of line with the way consumers are already getting screwed in US courts. So, again: blame the judges making the law, not the people reporting on where the law already is.


Twice in once day…that’s got to be more than a coincidence (or maybe the Uber model just lines up with a lot of eploitative practices…)


Sorry, I don’t actually know as much as you do about it, just hoping against hope that we can be saved from these pernicious practices, & the rest of the news has put me in a terrible state of mind today. Boldface was meant for emphasis, not for snark. My apologies.


It’s hardly settled law, though. There have been rulings upholding EULAs and TOSs, but also rulings that have gone against them. The objection seems to be that the restatements show bias by pretending the rulings go mostly or entirely one-way.


If I am able, I try to opt-out of EULAs’ or TOUs’ clauses that require me to give up my rights to sue as part of a class or to submit to arbitration. I do this even if there is no opt-out option in the contract. When there is no such option to opt-out, I will usually use the mailing address listed in the contract in the section dealing with copyright violations (there usually is something along those lines).

So far, I’ve only been taken to task by one company, Smugmug. <TL;DR> I was a 10+ year paying customer of Flickr, except for the last couple of years when Yahoo was failing so badly. Once Flickr became part of Smugmug, they wanted me to agree to their terms of use. Of course, they demanded I give up my rights mentioned above. So I wrote a letter, opting myself out of just those provisions of the contract. Couple weeks later, I was contacted by Smugmug’s customer support team, telling me my account was deleted. “Why?”, I asked. They sent me a photo of my letter, stating that it explicitly asked them to delete my account.

That was not the intent of the letter, I explained. Rather, it was just those provisions I was declining. The kind customer support person pretty much said, it’s a take-it-or-leave-it proposition. I asked if they were sure, and the Smugmug rep said yes. So that was that. I left.

I have written such opt-out letters to companies such as Sony Computer Interactive Entertainment (because PS4), video game companies (because again, PS4), and even to Stanford Health Care (whose crazy Terms say something about how they can notify you via electronic means, but you have to notify them via US Mail, out of which I also opted).

The only company that has ever responded was Smugmug. I tried to find who their Chief Legal Officer is so I could let her/him know, but my search bore no fruit and I let it go.

More and more, I opt out with the shopworn template I now have.


American Corporatism Institute is what they meant to call themselves. Silly buggers.


Interested in posting some version of that here? Not sure how often I or anyone else would use it, but such a thing would be a great reference.


My favourite(?) example of T’sOS for online services/products that are presented as part of the checkout purchase process … and the checkout process has a timer which expires long before anyone could reasonably read and comprehend the T’sOS they’ve nominally agreed to.


That’s not a problem; you can find a copy of the EULA, no purchase required, on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying “Beware of the Leopard”.


Let me reply to your assertion by saying with great feeling: Huh?

Here is one I sent:

Legal Department
Electronic Arts Inc.
209 Redwood Shores Parkway, Redwood City CA 94065

Dear Electronic Arts, Inc. Legal Team,

I hereby elect to OPT-OUT and not be bound by the arbitration or class action waiver provisions set forth in Section 15 of the Electronic Arts, Inc.’s User Agreement dated May 17, 2018, referenced here:

This election will stand going forward through any updates to Electronic Arts, Inc.’s User Agreement, including any changes to Arbitration and Class Action Waiver Provisions.



Another fun one that I’ve encountered was at a bike share dock in Washington DC a couple years back. You have to become a ‘member’ and of course agree to terms. The terms were displayed on a small, low resolution screen on the kiosk that you had to scroll through while standing there trying to even see the bad-contrast text display. The contract was pretty sizeable and even just trying to scroll through it would be a challenge; forget about trying to search for things like the company taking away your rights. It was absolutely ridiculous.


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