When the creators of 500px, a popular Toronto-based photo-sharing service, came to draw up the terms-of-service agreement for the site, they wanted a document that was written in plain English, not the typical indecipherable legal jargon.
But there’s a reason why 500px, like countless other technology companies, can’t simply write the rules of its service in words anyone can understand – even though that’s something more and more consumers are angrily demanding.
“We asked our lawyers, can you make the terms of service so they are human?” Evgeny Tchebotarev, one of the founders of 500px, says. “The thing is, they cannot. If you make it in plain language, it’ll cost a lot more, and can be disputed in court.”
It is perhaps an indictment of the current state of end-user licence agreements – the documents every user must “agree” to before using a digital product or service – that even this relatively minor addition quickly made the 500px service agreement one of the most highly praised in the technology industry.
Most service agreements are simply not readable – and, perhaps as a result, are rarely read.
Last month, Facebook-owned photo-sharing site Instagram faced a massive public push-back when it changed its terms of service agreement. Many of the site’s users took the new changes to mean that Instagram could now do anything it wanted with user photos, including selling them to third parties without compensating the original photographer. The company was so surprised by the outcry that it eventually ditched the new terms.
But beyond the public outrage, the Instagram situation illustrates wider problems with the terms-of-service process. First, there was confusion about what the new terms actually meant. Second, most users didn’t become aware of the changes because they had read the new agreement but because they heard about it from others.
“We should ask ourselves if people don’t care about their rights; or if the problem is more that people cannot read the terms before ‘agreeing’ to them,” says Hugo Roy, head of a project called “Terms of Service; Didn’t Read,” which grades the service agreements on various websites and products.
“In my opinion, people care about these issues, whether it’s their private data or their creative work. If people don’t care, then how can we explain that each time Facebook changes their terms, we’ve got public outcries?”
Licence agreements are almost as old as commercial software itself, but there are simply far more of them around today than there were a decade or two ago. A computer user in the 1990s may have had to sign off on a few pieces of software installed on a computer, whereas today’s user can have dozens of different online accounts for everything from social networks to e-mail to cloud computing, and each one comes with its own licence agreement to be read (optional) and signed (required).
A paper last year by researchers at Carnegie Mellon University estimated that it would take about 76 work days to read all the licence agreements an average user comes across in a year. Such estimates don’t seem very far-fetched, considering the Apple iTunes agreement alone is about 50 pages long.
The iTunes software and related apps and media store agreement has become a prime example of the modern service agreement. The frequently updated document weighs in at almost 15,000 words. “With something like iTunes, you’d be hard-pressed to find anyone who actually reads it,” says technology lawyer Arshia Tabrizi, who has worked on many terms of service agreements. “I don’t even read it.”
Apple’s own licence agreement has been crafted in impenetrable legalese by a phalanx of contract lawyers, but many other software and web companies take an opposite, yet still troubling approach. A quick Google search of a random string of text from LinkedIn’s end-user agreement shows that dozens of other websites – from a Dubai job-finding website to a forum for malaria researchers – have simply copied much of the social network’s agreement verbatim, replacing the word “LinkedIn” with the name of their own firm. Indeed, a Virginia-based law office makes the process of designing an end-user agreement fairly straightforward – simply enter the name of your company and some other details into a form on the office’s website, and an algorithm instantly outputs a generic end-user agreement for you, free of charge.
“It is the most boilerplate of documents,” Mr. Tabrizi says of end-user agreements. “Generally, the important thing is understanding users’ expectations of the service. If I write something on Facebook, I would understand that others may have access to it. But is Facebook going to take my postings, compile and sell them as an e-book? That would definitely not be in line with my expectations of the service.”
Most web-based services – especially ones that offer a cost-free product, such as Instagram or Facebook – tend to focus on two areas when crafting an end-user agreement. The first is liability, so as to limit the company’s exposure if data is accidentally deleted, for example. The other is content – specifically, limiting what kind of content a user may post on the service. In many cases, both areas can quickly become intertwined.
Public backlash like directed at Instagram shows that while many users don’t fully read the terms they agree to, a growing number are starting to take a closer look at terms-of-service documents. In turn, the companies drawing up the agreements are starting to notice. Indeed, the plain English terms of service model employed by 500px quickly became so popular, the company began allowing anyone to use the model for their own websites and services.
“One day, the terms-of-service page received more views than any other page on the site,” says Mr. Tchebotarev.