EULAs of despair

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This project maps some of the internet's most encountered End User License Agreements (EULAs), also commonly called Terms of Use. 
 
Over time,  these take-it-or-leave-it contracts have often expanded into legal hydras so complex that even legally-trained readers cannot meaningfully understand their terms (and the risks of using the product or service). Companies also claim that they have the right to change these terms at any time and that it's users' responsibility to keep reviewing them -- no matter how long and complicated they grow. In particular, users often do not understand that companies will argue that any privacy promises made by the privacy policy are limited by the provisions of the EULA. 
 
Are EULAs of this complexity legally enforceable? We say no, not always, but not all courts may agree.

Can legislation or regulatory guidance help? Yes. In particular, one suggestion might involve a uniform EULA form disclosure, akin to the uniform disclosures used for RESPA/TILA disclosures.



 

 
 
* * *
What is a EULA?

End User License Agreements (EULAs) are contracts that govern consumers' use of technology products and services.  They can appear as pop-up boxes that ask you to click 'yes' or they might appear as a link at the top or bottom of a website.

What do we mean by Tolstoys? 

A Tolstoy is the metric we are using to emphasize just how large these EULA webs can become. One Tolstoy is the length of the novel War and Peace by Leo Tolstoy, or 587,287 words. 

Are these EULAs legally enforceable? 

In order for a contract to be validly formed, it must reflect three parts -

1. an understandable offer,

2. a clear act of acceptance by the offer's intended recipient of those terms, AND 

3. (bargained for, identified) consideration that triggers the exchange of promises.

Many EULAs now appear to violate these most basic legal principles of contact formation:

Offer and Acceptance: Many EULAs now leave even legally-trained users unable to identify and understand the full terms of the offer presented. In particular, EULAs now often incorporate other EULAs by reference (which themselves incorporate other EULAs, etc.).   

You can learn more about contract law challenges to EULA enforceability in these articles written by Prof. Andrea Matwyshyn:
Privacy, the Hacker Way, 87 Southern California Law Review 1 (2014).
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Technoconsen(t)sus, 85 Washington University Law Review 529 (2007).
 

....

 

Amazon

1.09 Tolstoys

This interactive version allows you to follow the thread of various linked contracts and terms from their point of origin in the Amazon EULA: 

Apple
1.02 Tolstoys​
This interactive version allows you to follow the thread of various linked contracts and terms from their point of origin in the Apple EULA: 

 

Discord

​5.62 Tolstoys
This interactive version allows you to follow the thread of various linked contracts and terms from their point of origin in the Discord EULA: 

 

Facebook

1.36 Tolstoys

This interactive version allows you to follow the thread of various linked contracts and terms from their point of origin in the Facebook EULA: 

 
 
 
 
 

Google

9.33 Tolstoys

This interactive version allows you to follow the thread of various linked contracts and terms from their point of origin in the Google EULA: 

 

Reddit

11.58 Tolstoys

This interactive version allows you to follow the thread of various linked contracts and terms from their point of origin in the Reddit EULA: 

Snapchat

 

17.10 Tolstoys

This interactive version allows you to follow the thread of various linked contracts and terms from their point of origin in the Snapchat EULA: 

TikTok

13.05 Tolstoys

This interactive version allows you to follow the thread of various linked contracts and terms from their point of origin in the TikTok EULA: 

Twitter

15.83 Tolstoys

This interactive version allows you to follow the thread of various linked contracts and terms from their point of origin in the Twitter EULA: