Admit it. The last time Apple asked you to upgrade your version of iTunes, you probably didn't bother reading all 4,222 words in the English version of the software licence agreement.
So here's a warning. If you're in the business of building nuclear, chemical or biological weapons for some rogue state, don't incorporate your copy of iTunes — or any of Apple's other software, for that matter — into your design. Doing so violates part of paragraph 9: "you will not use the Apple Software for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of missiles, or nuclear, chemical or biological weapons."
Strange though that might be, you agreed to be bound by it before Apple put iTunes on your computer. It comes through something the law calls a "click-wrap" agreement. Canadian law recognizes that when a software company presents you with its terms and conditions prior to installation, clicking the "I agree" box on your computer screen is just as binding as signing your name on the bottom of a paper contract.
"Here's what you're doing. You're accepting to be bound by a set of legal terms and conditions," says Andrew Alleyne, a lawyer with Fasken Martineau DuMoulin LLP in Toronto. "By clicking the I Accept button below, you're entering into a contract."
Mr. Alleyne has drafted his share of click-wrap agreements and he understands few people ever read them. He says consumers should, and not out of some pride of authorship. "We try to have the big screaming headline at the top that says you should read this because it's contractually binding on you. Don't just skip to the end and click I Accept."
Why do we live in a world where so much text gets thrown at us without anyone seriously believing we might read it? Omri Ben-Shahar, a professor of law at the University of Chicago, says the answer resides in a century-old practice of having "informed consent" as the underpinning of modern regulation.
It's a noble concept. Consumers are presented with everything up front on the understanding that once you've been warned, a company may minimize or absolve itself of legal responsibility for problems. In practice it can get ridiculous. You see disclosure everywhere from the apocalyptic warnings about possible side effects that run on pharmaceutical ads to oxymoronic warnings on consumer products, such as when a peanut butter label warns you the jar may contain nuts.
Replicating an experiment conceived by Mr. Ben-Shahar, I printed out the English language provision of the iTunes agreement. It stretched to about seven-feet of paper in single-spaced, 11-point courier font.
"Online contracts are the tip of the iceberg," says Mr. Ben-Shahar, who recently co-authored a book called More Than You Wanted to Know: the Failure of Mandated Disclosure. "They call it informed consent, but we know from social science studies that nobody reads it, and 95% of people couldn't understand it if they tried."
Strange thing is, more of this might be on the way. This past summer, consumers were bombarded with emails from companies seeking their consent under Canada's anti-spam legislation, CASL, to keep them on mailing lists. But there's another, often overlooked part of the law that has yet to take effect. After Jan. 15, 2015, a section of the law kicks in that is supposed to protect consumers from unwittingly installing malware or spyware on their computers.
Barry Sookman, a senior partner with McCarthy Tétrault LLP in Toronto who publishes a widely read blog on tech law, is of the view that the new law will require consumers to provide express consent not just when they install programs, but in some cases each time they update any program on a computer, smart phone or other device. The law might even apply to updates to the firmware that runs fridges and other appliances that lack an interface through which consumers can consent to the change.
"It's anomalous and exists nowhere else in the world. It applies not just to malware and spyware, but to any computer program. And, in many cases, it's impossible to comply with," Mr. Sookman says. Some click-wrap agreements ask consumers to consent to automatic updates. But Mr. Sookman says the new act prohibits such advance consent for a number of specific software functions. "It means consumers are going to be continually bugged to do things they don't like to do."
Why do these things hold up in court, even though no one reads them? The answer resides in the basic elements of contract law that govern commerce throughout the English-speaking world. A contract requires three things: an offer, an acceptance, and a swap of some value or "consideration." When it comes to click-wrap agreements, the company's presentation of the terms is the offer, your click on "I agree" is the acceptance, and the swap consists of your agreement to live with those terms and conditions in exchange for the company giving you the right to use the program.
Then there's the case law. In 1999, an Ontario judge said there would be "chaos in the marketplace" if courts failed to recognize that online agreements should be just as valid as paper contracts.
Still, some experts wonder whether traditional contract law meshes with the culture of consumer Internet use.
Emily Laidlaw, an assistant professor of law with the University of Calgary, says the terms of these online click-wrap contracts are often too lopsided in favour of the business providing the services. Ms. Laidlaw says this might be doing a disservice to consumers. "It goes too far in seeking legal certainty in online contracting by allowing the burden and risks to be borne by consumers," she says.
Anthony Niblett, an assistant professor in the faculty of law at the University of Toronto, says Canadian law boils the issue down to two basic questions: Was a consumer given notice about the existence of the terms and conditions? And what did the consumer have to do to agree or assent to those terms and conditions.
Mr. Niblett says this is why you're often not able to install a program until you're confronted with that online box of terms and conditions. That's also why the "I Agree" box sometimes won't activate until you've scrolled to the bottom of the box. Both features are designed to satisfy the legal need for notice and assent.
"The truth is that nobody reads these things," Mr. Niblett says. "If the terms are reasonable then you're going to be bound by them, notice or not."
But even if a company makes you jump through those legal hoops, it doesn't always get its way. Consumer protection legislation in each province might invalidate some of those terms and conditions. There's also the question of reasonableness. If some of the terms are unreasonable and unfair, a court might not enforce them unless the company can prove it made special efforts to bring that particular term or condition to the attention of the consumer by putting the text in something like all-caps or bold.
"If particularly unusual or onerous terms in the contract aren't brought to the attention of the person who's agreeing to the contact, those may be liable to challenge," says Paul Armitage, a partner in the Vancouver office of Gowling Lafleur Henderson LLP.
That might explain how click-ware contracts work from a legal point of view. But back to the language and some of the choice terms and conditions that find their way into these agreements. Why might Apple ask, as it does in paragraph 7E, that users recognize they shouldn't use iTunes or other Apple software to help run a nuclear power plant or an air traffic control system? Or the aforementioned paragraph 9, which cautions you not to use the software to make weapons of mass destruction?
These are actually standard "boilerplate" provisions that find their way into a lot of U.S. contracts of all shapes and sizes. And note that your iTunes agreement is a U.S. contract because — thanks to paragraph 11 — Apple customers are asked to accept that California law governs the agreement.
So in case you missed it the first time, now you've been told.
Nenhum comentário:
Postar um comentário