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Legal

The Personal and Social Implications of the End User License Agreement

Simon Krauss
Deputy General Counsel

Mar 6, 2019

As in-house counsel, I often read and write online licensing agreements for software. These agreements go by a variety of names, such as Terms of Service (ToS) or End User License Agreements (EULAs). These are the agreements you scroll through (without actually reading) and then click the “I Agree” box, thus legally binding yourself to something you didn’t take the time to read or understand in order to get something you want quickly.

Not Your Fault

Don’t feel bad about not reading EULAs. It would take a significant amount of time to read every one of the agreements you encounter. Also, many of them would require you to go to law school to understand them! And even if you didn’t like the terms of an agreement, your only options would be to try to negotiate better terms (best of luck with that!) or not use the software or service. Besides which, if you’re getting the software or service for free, you may ask, “Who cares?” You should! Even if the transaction doesn’t involve money, it isn’t actually free. You may not be giving up your money, but you are giving up your legal rights.

You may not care about some of those rights, as they often may not impact you too seriously. But one serious development I do see coming up more often is when a company reserves the right to change the agreement at any time by posting new terms on its website. If you continue to use that company’s software, then you automatically agree to the new terms. This means that it’s possible that a free app you downloaded one day wouldn’t be free the next day—and you wouldn’t know it unless you compulsively checked the website to read what you didn’t read the first time.

Sometimes You Can Win in Court – But You do Have to Go to Court

It’s not all bad in EULA land. In some instances, the court will have your back. Because EULAs are non-negotiable form agreements, they’re considered “adhesion contracts.” Generally, courts won’t allow the dominant party (the one that wrote the adhesion contract) to enforce an adhesion contract term if the court considers it “unconscionable”— that is, generally, and as a simplification, if the contract term is unfair to the weaker party. But that also means you have to sue and spend time paying for your case.

So Who is Going to Change the EULA?

Although there may be little incentive for lawyers to change EULAs on their own, there are incentives for the lawyer’s clients. Companies invest a lot in their customer experience. EULAs are clearly not part of that investment, but they should be—after all, the EULA is where the software or service is purchased. Companies are in a position to challenge their legal counsel to draft EULAs that work to enhance the customer experience. Outside of a sea change in the law, this may be the only way EULAs will change.

At Kyrio, I work hard to make our agreements as simple as possible. I have also launched my own initiative with lawyers and designers to develop contracts that are written in standard English. Subscribe to our blog to learn more in the future.


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Legal

How Will the Law Treat Injuries Caused by Autonomous Vehicles?

Simon Krauss
Deputy General Counsel

Apr 12, 2018

A version of this article appeared in S&P Global Market Intelligence in April 2018. 

Recently, in Arizona, a self-driving Uber vehicle with a minder onboard struck and killed a cyclist. The deadly accident has raised familiar—and serious—philosophical and legal questions surrounding the rise of autonomous vehicles.

There’s an important philosophical debate already being waged over self-driving cars and safety in the wake of this tragedy, but the fact that I’d have to look up the meanings of “deontological” and “teleological” disqualifies me for that discussion. However, I am a practicing lawyer, and although I don’t practice personal injury law, I do have sufficient bona fides to opine on tort law and autonomous vehicles.

Tort Law

Culpability in the Arizona crash will be legally decided in accordance with the principles of tort law. A tort is, simply, a civil wrong - that is a wrongful act causing harm to a member of society. This is not to be confused with a criminal act, which requires a mental state and action that causes a violation of a criminal law. Torts require four elements, and all four elements must be met, or you don’t have a case:

  • A civic duty
  • A breach of that civic duty
  • The breach of the civic duty led directly to a harm
  • The harm resulted in damages

Using the framework of tort law, in the event that an autonomous vehicle causes an accident, it is the first two elements of a tort—there was a duty, and that duty was breached—that are significant. In this case, there may be several legal duties.

Uber and Autonomous Vehicle

One legal duty could be found with Uber or the car manufacturer (by “manufacturer,” I mean the designer, software provider, and everyone else in the supply chain). Uber and the manufacturer have a legal duty to not design or manufacture a defective product. The question here is whether the Uber self-driving car involved in the accident was defectively designed or manufactured, and whether it was Uber or the car manufacturer that put a defective vehicle on the road.

What makes a self-driving car defective? Answers to that question will be based on the “standard of care.” Reviewing the standard of care means understanding what a reasonable car manufacturer and self-driving car modifier would do for safety. Lawyers will review what other self-driving car companies, such as Waymo, have done with regard to numbers and types of sensors, as well as bring in self-driving car experts. More standard questions as to the effectiveness of the car’s brakes may also come into play.

The Minder

There are also legal duty questions about the Uber employee who was in the vehicle and who was allegedly not looking at the road at the time of the accident. I would assume the minder was in the car to help prevent accidents. If that’s the case, she probably had a legal duty. However, what if she had been in the car for a sufficient amount of time to reasonably become fatigued and had no way of pulling over? Driving long hours is hard enough. Being a passenger—not controlling the car but needing to keep a sharp eye on a road—seems like a monotonous job.

If Uber had the minder in the car too long to be effective, that may be a design defect. On the other hand, if the employee could have pulled the car over to rest, then she may have breached her duty. Going one step further, does Uber or the car manufacturer have a duty to put in a sensor that would detect when the minder became fatigued and instruct the car to automatically pull over?

The Cyclist

The fault is not all on the car manufacturer and Uber. The woman who was killed was crossing a well-trafficked road at night pushing a bicycle. Did she breach a legal duty? If so, and if the court finds that the car manufacturer or Uber breached its legal duty, then it is a case of comparative negligence and the court may reduce the car manufacturer’s or Uber’s damages in accordance with the amount of negligence of the woman who was killed.

Arizona is a comparative negligence state, which means someone can recover damages under tort even if he or she were 99 percent at fault (compared with Maryland, which is a contributory negligence state, where the plaintiff gets nothing even if he or she is 1 percent at fault). Under Arizona law, however, there won’t be any recovery if the deceased intentionally caused the accident—so that raises the question of intent.

More to Come

While the Uber case reached an undisclosed settlement it would be overly optimistic to think that this accident will be the last accident involving a self-driving car. While it’s too early to tell how these self-driving car cases will play out in the courts, this is one area of the law that may not need to struggle to keep up with changes in technology (such as privacy law). Traditional tort law provides a legal framework for deciding fault and damages for self-driving cars.

The crossroads of law, technology and society is an interesting place to be. This article is the first part of our legal series by our legal experts at CableLabs examining the impact of new technologies on law and how we live. Make sure to subscribe to our blog to stay current on our legal series.

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Yes, I am an attorney, but I’m not your attorney and this article does not create an attorney-client relationship. I am licensed to practice law in Colorado and have based the information presented on US laws. This article is legal information and should not be seen as legal advice. You should consult with an attorney before you rely on this information.

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