Should we be reading the iTunes licensing agreement more carefully?

CNN has an interesting look at something we all do without thinking about it. Whether we use an iPod, iPhone, or iPad for e-reading or just for music, when we want to upgrade iTunes, we don’t bother to read through 52 pages of legalese. We just click the accept button and assume that “Nothing bad is going to happen.”

But CNN has talked to a couple of lawyers who remind us that we are entering into a binding contract when we click that “agree” button.

According to New York technology attorney Mark Grossman, selecting "Agree" serves as an electronic signature, due to a law passed in 2000. It has the same validity as typing your name in an e-mail or signing a document using a pen.

Jonathan Handel, a Los Angeles-based entertainment attorney who specializes in digital media, technology and intellectual property, said that because the iTunes terms are essentially a contract, people should treat them as such and give them more than a cursory glance.

The lawyers bring up three points from the contract that users may not be aware of but might want to pay closer attention. First, the Genius feature allows Apple to make use of data from their computer, such as your iTunes playlists, in order to generate recommendations for you. Second, you’re responsible for backing up your own purchases—if you lose them, Apple won’t replace them for you. And third, you’re licensing the content you buy—not purchasing it outright.

The lawyers note that there really isn’t any way Apple can cut the length down, because everything that is mentioned is legally important, and Apple could get in trouble for leaving it out.

"Whatever is in those 50 pages needed to be said," [Grossman] said. "Could you try [reducing] 50 to five and not lose anything? Someone is going to say that it wasn’t in the summary and therefore does not count."

And also, some of that legalese is included at the insistence of the media companies that provide Apple with content.

Handel notes that it would be helpful if Apple would at least clarify some of the content, if not shorten it. But he also suggests it’s incumbent on users to read the terms as well.

I don’t know if there’s really any kind of answer here. If we read the terms and conditions thoroughly on every piece of software we used or website we visited, we wouldn’t have time to do anything else. It’s an ingrained habit to click through those licenses, and I doubt very many people actually bother to read any of them. And the people who write those licenses darned well know it—if they don’t, they should by now.

So we’ve got a whole industry that spends its time writing licenses nobody ever reads. I wonder if the courts will ever accept “Nobody ever reads those and you know it,” as a valid defense?

10 Comments on Should we be reading the iTunes licensing agreement more carefully?

  1. Well I started reading this article expecting some kind of scary revelations… but ended up thinking so what! Where’s the news?

    Is it news that this is a ‘contract’ ? Is there anyone left that doesn’t know this? Is there anyone that doesn’t realise that to generate Genius selections, Apple needs to use your playlists ? And why should a company like Apple be responsible for your backups ?? duh….

    The only important issue here, imho, is a reminder of the nonsense of this ‘licensing’ claptrap.

    At this stage I guess we have little or no chance of persuading our politicians to ignore the pressure and big special interests money of the Music and Publishing business and reverse this nonsense. All we can do is make it plain to both of them that we, the people, have no intention of accepting a blatantly unfair and unjust law. When we buy, we KEEP what is OURS, and they can whistle.

    The industry obsesses about their contracts because they have a LOT to lose, Users don’t. It seems obvious to me.

  2. However, there are also precedents for a) it is not is contract if both sides did not have an opportunity to communicate and negotiate b) even if you sign a contract, you cannot give up rights you legally have (for instance, in landlord/tenant law, the lease agreement can be deemed not valid—even if you sign it—if it specifies things that violate the landlord/tenant act e.g. regarding pet or child restrictions, which are illegal). So, if it ever did get to court, a good lawyer would have material to work with :)

  3. Andrew Timson // May 7, 2011 at 8:07 pm //

    I doubt that a court would hold it up as unenforceable simply because “nobody ever reads those and you know it” – the same applies to the collected statutes on the books, and yet courts still enforce them. At least you have the opportunity to read the license agreement, which isn’t really true for existing statutes.

  4. Communicating and Negotiating is not a requirement for a contract to be valid. Ticking the box saying that you have read and agreed is sufficient.
    It is true that you cannot sign away some basic legal rights, but there is nothing in these contracts that infers these are being signed away.

    This is not a statute. It is a contract. As far as ignorance of statutes/law goes it is not normally accepted as an excuse in the US or Europe where basic laws are concerned.

  5. “Nobody ever reads those” is not a valid defense–but “the company deliberately attempts to arrange it so that people are discouraged from reading” might be valid.

    A tiny pop-up box with substantial portions in all caps, in the middle of a sign-up form (rather than at the beginning, “click here for terms BEFORE giving us a username or your email address”), all in one huuuuuuge scrollbox, rather than broken into ~1000-word sections that each have to be clicked through separately, could be challenged as “the providing company is trying to get people not to read this, by making the signup form time out before they can finish it, and by making it hard on the eyes.”

    I suspect a lot less people would bother to sign up for digital services if the TOUs were arranged like blog posts, in roughly 1000-words per page sections, and you had to click that you’d read each one at the bottom before the next would load. That, however, would verify that customers had read, or at least been exposed to, every bit of the contract before agreeing to join.

    I could see a legal argument that, by hiding the contracts in small text boxes or one long scrolling page in tiny grey text and a third of it in all caps, the company is trying to hide the most controversial or invasive parts of its contract by hoping the customers’ eyes will glaze over before they get that far. By putting it in the middle of the signup agreement instead of at the beginning, they’re implying that they’ve already agreed to provide service–after all, they’ve already taken the customer’s name & contact info.

    They’re allowed to have shrink-wrap agreements. They’re not allowed to attempt to deliberately hide the parts they think potential customers won’t like.

  6. Hisownfool // May 8, 2011 at 7:46 am //

    Not to be flip but what have we learned from this post?

    1. Don’t use Genius. Trust your own tastes in creating playlists.
    2. Always back up your purchases.
    3. Don’t buy music or anything else for that matter, from iTunes — there are plenty of other places, most notably Amazon, that will sell you the stuff on much better terms for the same price.
    4. Whatever it considerable virtues on the hardware side, Apple as a software vendor is not to be trusted.

  7. Apple allows you to email (or print?) the full text of the licensing agreement before you agree to it. I once emailed it to myself and spent about 5 minutes skimming it before I got bored and just went back and agreed.
    Boredom defense… Do you think that will hold up in court? 😉

  8. On this subject, I always think of the DILBERT cartoon where the small print on a piece of Microsoft software makes him Bill Gates’ pool towel boy.

  9. I really don’t have any serious issues with the iTunes TOU. However, I have iTunes only because I purchased an iPhone. It’s possible I missed it, but I don’t recall being instructed that I would need to agree to the iTunes TOU in order to have access to all the features my new phone had to offer.

  10. jgrnt1 – Then you missed it.

    hisownfool – “Don’t use Genius. Trust your own tastes in creating playlists.” It takes a serious case of paranoia to be concerned about sharing your playlists with Apple imho.

Leave a comment

Your email address will not be published.

*



wordpress analytics