Who Uses the EULAs?

November 8, 2006 , ,

This week, the Federal Trade Commission hosted a set of hearings called “Protecting Consumers in the Next Tech-Ade.” The hearings featured a series of talks and panel discussions about how technology will change the way consumers act and are acted upon over the next ten years. As you can see from the agenda, the hearings covered a wide variety of topics–far too many for me to blog about all of them. But my next few posts will focus on a few particular issues that caught my eye.

One discussion at the Tech-ade conference focused on digital rights management, or DRM. One of several problems with DRM is that it often restricts how consumers can use the music, movies, or software they've bought, without telling them beforehand. Currently, media companies are trying to fix this with end-user license agreements, or EULAs. According to the companies, a EULA provides consumers with notice that they won't be able to have their computer read an audiobook aloud, or copy a downloaded song from one music player to another.

But this doesn't work. The problem with EULAs is that they're written in legalese. They're written by lawyers, for lawyers. The reason for this is that the lawyers writing them aren't thinking about whether a user can read and understand them, but whether or not they'll hold up in court. After all, that's the reason a lot of legalese get slapped into contracts–lawyers are using language that they know courts have interpreted in a certain way, reliably.

But this attitude defeats the purpose of giving a consumer notice in the first place. If a company is selling a music CD with DRM on it, the restrictions on that CD need to be understood first by the thousands upon thousands of people buying it. Only once in a blue moon will the agreement have to be scrutinized by a court. So why not make the notice one that those thousands of buyers can read and understand when they glance at the package? If they really need it, there can be additional details and clarification in the unlikely event of a lawsuit.

All that is necessary is for the bold print to give the general idea of what's going on, and for it not to misrepresent the fine print. The vast majority of consumer interactions go on just fine without everyone being a lawyer. We understand the major differences between the rights we have when we buy a DVD versus when we rent one, all without reading the fine print. So why can't the differences between the rights that DRM will grant us be just as easy to understand?