2010-06-02

To What Did I Just Agree?

Sony the other day sent me a note (hours before the event) saying that they were changing their PlayStation online agreement and I needed to agree to the new one. No indication of what the changes were, of course, just a lot of text, without even an agreement checkbox, actually. (When and how—and if—I agree to this, I don't even know.)

I hope I didn't give them my immortal soul.

But the problem of these extraordiarially long agreements for simple consumer transactions, and the power imbalances inherent in them, has been well known for a long time and discussed extensively.

Which got me wondering about this power imbalance. It's not just that the other side has a lot more lawyers than I do (an infinite number more, actually, if you consider that to be the result of division by zero), but also that my choices are limited, essentially, to "accept or don't buy that $10 downloadable game." Were I negotiating the kind of contract I negotiate in business, say with a potential employer or employee, both sides are a lot more equal in that I can return a copy of the contract with additions, changes and strikeouts, and suggest that we work from there instead. Negotiations then proceed. But that's not going to happen in the consumer world.

With a consumer contract, since the vast majority of consumers are willing just to click the box regardless of consequences in order to avoid the hassle, the few people who are willing to take the time to read the contract and perhaps disagree with a few terms have no real way to compel the company to change it. Companies with large numbers of consumers can easily afford to ignore those people since it costs them only a few small sales. How can we fix this?

Here's my crazy idea. For these on-line contracts (and perhaps this could be done with paper, too), force everybody to read and truly agree with them by having them, after reading each paragraph, answer a short, simple multiple choice question about that paragraph.

If contracts were less enforcable without this evidence that the consumer had read and understood every provision, a lot more consumers would default to not making the purchase because they aren't willing to deal with the hassle of proving they'd read and understood the long contract. That would cause pain to those who write long and complex agreements, and provide a lot of encouragement to those selling goods of relatively low cost to write short, simple ones instead.

I'm not sure that this is an idea that's ever likely to be put in to practice, but it's an interesting thought.

3 comments:

  1. Why give an inch? Don't let it BE a contract unless they actually sign a piece of paper. The vendor should send their salesman to meet the buyer and get the signature. (This already works great in the _expensive_ software world.)

    Requiring this, would get rid of 99% of the unnecessary. It's not like most software vendors _need_ a sales contract; there's already a metric-crapload of commercial statutes that govern the sale of software, and copyright law to govern what a person is allowed and not allowed to _do_ with software that they have purchased. Sales are way better, and more efficient, way to handle software commerce than licensing.

    If you don't need a contract to buy a book, you don't need one to buy software.

    We shouldn't be bending backwards to create new ways of handling contracts; the old way -- sign a paper -- is good enough. Whenever someone says it's not good enough, it's _always_ because they want to put something really weird and usually abusive, into the contract, because they don't happen to like the existing laws.

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  2. Are these contracts enforceable? Has anyone found out? I get the suspicion that lawyers just add more and more stuff that they think of into these lists. It mostly seems to be able their ability to stop support or withdraw on-line play, and their ability to defend themselves if you sue them when they do. My concern is that we think we're buying something, and the seller has the right to take what they've sold away from us (because it's dependent on a server somewhere, or because we have to update.) We are renting, instead of buying, and is that what we really expected?

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  3. Well, always keep in mind that I'm not a lawyer, much less a judge. But here's my understanding of the situation.

    Anonymous: actually, a contract implicitly being created due to a sale, without anybody signing anything, has been a standard thing for a long time. This is exactly what the Uniform Commercial Code does.

    Andrew: you're quite right that the enforceability of these contracts, or parts of them, is open to question (and certainly the "buying versus renting" thing is a very large issue of concern to me, though I don't really touch on it in this post). But part of the issue for me is also related to the size and power imbalance issue. For me, suing a large company is a big deal, and not something I'm likely to take on lightly. For a company the size of Sony, defending themselves is like swatting a fly; they'd hardly even notice me.

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