Supreme Court Chief Justice Admits He Doesn't Read Online EULAs Or Other 'Fine Print'

from the so-why-are-they-binding? dept

Fri, Oct 22nd 2010 9:48am — Mike Masnick

We just recently wrote about how circuit court judge Richard Posner had admitted to not reading the boilerplate legalese on his mortgage agreement, and wondered why such things were then considered binding. Taking it up a notch, now Supreme Court Chief Justice John Roberts has admitted that he doesn't read the fine print on websites or medicines and that this "is a problem."

Answering a student question, Roberts admitted he doesn't usually read the computer jargon that is a condition of accessing websites, and gave another example of fine print: the literature that accompanies medications.... It has "the smallest type you can imagine and you unfold it like a map," he said. "It is a problem," he added, "because the legal system obviously is to blame for that." Providing too much information defeats the purpose of disclosure, since no one reads it, he said. "What the answer is," he said, "I don't know."

Well, that's comforting. Of course, I'm less interested in "the answer" to all that small type, and more interested in the answer to the question of how those things can be considered legally binding when even the Chief Justice of the Supreme Court doesn't read them...

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Filed Under: contracts, eula, fine print, john roberts, lawyers

30 Comments

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GeneralEmergency (profile), 22 Oct 2010 @ 9:56am

Ah-ha! The answer to to problem is....
A law that states that all laws and legally binding agreements and disclosures must be printed in 72 point high type with a minimum width of 20 points.

Let's bury the bastards under giant mounds of their own paper effluence!
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- Anonymous Coward, 22 Oct 2010 @ 10:16am
  
  Re: Ah-ha! The answer to to problem is....
  Haha that's awesome. Can you imagine having to pick up a binder with each of your medication?
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Chuck Norris' Enemy (deceased) (profile), 22 Oct 2010 @ 10:03am

It's the laws...all of them
I think anytime you enter into a contract it is your obligation to read it. Now, is it ridiculous to have to read a 30 page contract (EULA) to use free software for twenty minutes? Probably. But how do corporations protect themselves from people who can sue them for liability on a number of issues ranging from getting your account banned to causing conflicts on any myriad of electronic devices and configurations? Maybe the justice system gives too much consideration to silly lawsuits.
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- MrWilson, 22 Oct 2010 @ 10:09am
  
  Re: It's the laws...all of them
  "Maybe the justice system gives too much consideration to silly lawsuits."
  
  Bingo. The torrent of legalese is due to the susceptibility of everyone to frivolous lawsuits, the high cost of such lawsuits, and the willingness of the justice system to tolerate them. We need better laws and judges with balls, technical experience, and common sense.
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- ChurchHatesTucker (profile), 22 Oct 2010 @ 10:38am
  
  Re: It's the laws...all of them
  "I think anytime you enter into a contract it is your obligation to read it."
  
  In your ideal society, I'm sure that's true. But if the Chief Justice doesn't do it, then how the hell can I be expected to?
  
  I'm not even going to get into what constitutes a contract, because damn few lawyers seem to think it matters.
  
  This is why people keep eyeing lawyers and walls.
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  - duffmeister (profile), 22 Oct 2010 @ 11:50am
    
    Re: Re: It's the laws...all of them
    I think this is the problem, lawyers have a vested interest in keeping EULAs that nobody reads legal. The fact that it doesn't even come close to meeting the requirements for a legal contract aside.
    
    Also on software shouldn't you be allowed to return it for a full refund if you don't agree to the EULA?
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    - Chargone (profile), 22 Oct 2010 @ 6:13pm
      
      Re: Re: Re: It's the laws...all of them
      wonderful thought. I'd just like to thank the American government for the pressure it put on the New Zealand government, and said later government for being such spineless idiots, leading to it no longer being legal for stores to give you said refunds here. (most of them used to... not that anyone took advantage of it. EULAs for standardized, mass produced, functionally unsupported software were never exactly smart...)
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    - MrWilson, 22 Oct 2010 @ 9:35pm
      
      Re: Re: Re: It's the laws...all of them
      Lawyers and legalese are like medieval clergy and Latin. It's in their interest to keep the unwashed masses uneducated and unable to handle such things themselves. If the equivalent of Gutenberg's printing press or Luther's Reformation ever comes out for legalese, lawyers will burn that witch at the stake for heresy faster than you can say, "she turned me into a newt...well, I got better..."
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Steve R. (profile), 22 Oct 2010 @ 10:09am

Availablity of "Authorized" Representative
GeneralEmergency has a good comment. Here is another one, every company "offering" these onerous terms-of-service should have an authorized representative available to negotiate a contract. If they don't then the consumer should be free to revise the contract terms as they see fit.

Time to restore the meaning of "contract" to an agreement that defines both responsibilities and obligations for the parties involved.
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- Greevar (profile), 22 Oct 2010 @ 10:46am
  
  Re: Availablity of "Authorized" Representative
  But without these one-sided contracts, how can they make a profit?!?
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  - TtfnJohn (profile), 22 Oct 2010 @ 12:52pm
    
    Re: Re: Availablity of "Authorized" Representative
    If profit is the goal I can't tell you. As far as the rest is concerned it's that we live in a culture that says "sue first" negotiate or try to come to terms later rather than the other way around.
    
    I used to say Americans did that and felt smug and secure as a Canadian that we didn't but some time in the past decade or so the virus spread to Canada and now we're doing it too.
    
    So much for feeling smug and self satisfied :)
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    - Anonymous Coward, 22 Oct 2010 @ 4:22pm
      
      Re: Re: Re: Availablity of "Authorized" Representative
      If profit is the goal I can't tell you.
      
      There is no other goal in capitalism.
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Anonymous Coward, 22 Oct 2010 @ 10:09am

One of the (supposed) reasons for the uniform commercial code was to have a uniform set of clauses, so that one doesn’t have to re-read and/or renegotiate each time. We could make those clauses binding in certain transactions that are clearly dealings between unequal parties. Of course the problem there is that those clauses would almost certainly benefit big corporations because they would lobby for said changes.
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RD, 22 Oct 2010 @ 10:10am

Thats easy
Thats an easy answer Mike, I'm surprised you didnt see it:

One rule for them, one rule for us. And never the twixt shall meet.

Those that rule are subject to no (or very few) laws. Those that dont are subject to ALL of them, plus whatever a clever liar, excuse me, lawyer, can twist the laws into to keep the masses in line, through fear and intimidation.
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- ChurchHatesTucker (profile), 22 Oct 2010 @ 11:12am
  
  Re: Thats easy
  There is one law for rich and poor alike, which prevents them equally from stealing bread and sleeping under bridges. --Jo Walton
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  - Anonymous Coward, 22 Oct 2010 @ 1:12pm
    
    Re: Re: Thats easy
    If that is indeed a quote from Jo Walton, she's paraphrasing Anatole France:
    
    "The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread."
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    - ChurchHatesTucker (profile), 22 Oct 2010 @ 4:18pm
      
      Re: Re: Re: Thats easy
      Indeed, but the Walton version is the one they used in The Tomorrow People :P
      
      I thought that France was quoting someone even earlier, but gave up on trying to run that one to ground.
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Anonymous Coward, 22 Oct 2010 @ 10:19am

Here's a TED (yay!) speech on simplifying legal jargon:

http://www.youtube.com/watch?v=yyemG7V5ynQ

This would be a great compromise, no?
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Anonymous Coward, 22 Oct 2010 @ 10:23am

Law
I believe that no person should need to know the details of the law. The law should be obvious to most people in a society. Killing is bad. Raping is bad. Stealing somebodies truck is bad. If you have to read a 10 page EULA to use a piece of software, something is wrong. If you have to read and understand 14 different licenses to know if you can share a particular image/music/etc with a friend, something is wrong.
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- Anonymous Coward, 22 Oct 2010 @ 10:30am
  
  Re: Law
  Unfortunately, common sense is not shared by everyone. Also, moral is a very, very complex matter. I mean, who says killing is bad? I agree it's detrimental to society, but ultimately, ALL the rules and laws we come up with are relative and debatable.
  
  But if EULAs are least had some important highlights at the beginning, some form of overview, I think people might read that at the very least.
  
  Do we really need to put 'May be hot when heated' on pizza pockets? No, but then again, people are kinda stupid.
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  - Ron Rezendes (profile), 22 Oct 2010 @ 10:37am
    
    Re: Re: Law
    An Harm None, Do As Ye Will.
    
    There - the law has been written into one easy sentence! ;P
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    - Anonymous Coward, 22 Oct 2010 @ 4:27pm
      
      Re: Re: Re: Law
      An Harm None, Do As Ye Will.
      
      Unfortunately, "harm" is interpreted by some as anything that threatens their power or profits.
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Anonymous Coward, 22 Oct 2010 @ 10:40am

Simple Fix - Standardize EULAs
Make a group of EULAs that pertain to different licensing methods. Make it a short list - 4 maybe? You can EULA-ize your software using only one of these four methods. Anything outside that those methods is not enforceable. Make changes to these 4 every 5-10 years to account for progress in society.
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Anonymous Coward, 22 Oct 2010 @ 10:40am

Not reading a EULA = understandable. What's annoying especially is when people buy software, music, or movies that have all these restrictive terms and then you can't take any of it back if you don't like the terms. There must be a way to view these EULA's before purchase. Or maybe people can insist only on buying content with a CC license at the front. Perhaps the EULA name can appear at the front and people can google it before buying as well.

But I do think medicine should come with plenty of relevant literature and it is everyone's responsibility to read the contraindication notices. If you break some stupid copy protection law, who cares. If you incorrectly take a medicine with something else or if you have a condition that makes taking the medicine inadvisable you should know ahead of time and they should warn you about these potential risks beforehand.
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Greevar (profile), 22 Oct 2010 @ 11:10am

The simplest fix:
We, the provider of this software, offer this software for free, without any expectation of support to you (the consumer). We are not responsible for anything that results from the use of this software on the device(s) you install it to.

This would be the most amenable solution as long as the developers sell their time and effort to create software rather than try to sell copies as if they were physical products. If they aren't trying to sell copies, they don't need to protect the software from copying or other uses that the current industry model hates. No cryptic EULA necessary.
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out_of_the_blue, 22 Oct 2010 @ 11:10am

The answer is to ignore them: they're not legally binding.
They're just text: you don't give up rights merely because words are written by some lawyer. Common law nullifies "unconscionable" terms, and most are. If it came to it, just ask a jury whether they would agree to such terms -- or, as these judges show, even bother to read them. What's widely disregarded is in no way legally enforceable UNLESS you foolishly go along with it. That last particularly applies to websites: all of common law isn't set aside merely because you visit some website, or even use it. There's no contract: no exchange of consideration, no witnessed signature. All of those assertion are just *wild* power craze on part of lawyers and website operators. The person running the website *chooses* to make available a machine for public use: THEIR rights to that machine are reduced by THEIR choice, not everyone else's common law and civil rights.
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Anonymous Coward, 22 Oct 2010 @ 11:26am

"Supreme Court Chief Justice Admits He Doesn't Read Online EULAs Or Other 'Fine Print'"

Great, now if only we can get the justice to admit that indefinite retroactive copy protection extensions do not constitute a limited time and that to promote the progress does not mean to serve corporate interests.
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Nastybutler77 (profile), 22 Oct 2010 @ 1:46pm

What a coincidence; neither do I
Supreme Court Chief Justice John Roberts has admitted that he doesn't read the fine print on websites or medicines...

Hmm, he and I have something in common. How about that?
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Anonymous Coward, 22 Oct 2010 @ 4:29pm

If you're a Supreme Court Chief Justice...
you don't have to read the fine print; it doesn't apply to you. Fine print is for the little people.
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Robert Doyle (profile), 26 Aug 2011 @ 11:23am

TL;DR
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