
What you should know about iTunes' 56-page legal terms - jkaljundi
http://edition.cnn.com/2011/TECH/web/05/06/itunes.terms/
======
dgallagher
If you haven't seen it, South Park did an Apple episode recently and it was
all about the iTunes agreements:

90-sec clip #1 (SFW): [http://www.southparkstudios.com/clips/382781/business-
casual...](http://www.southparkstudios.com/clips/382781/business-casual-g-men)

60-sec clip #2 (NSFW): [http://www.southparkstudios.com/clips/382785/im-gonna-
clickd...](http://www.southparkstudios.com/clips/382785/im-gonna-clickdecline)

Full Episode (NSFW): [http://www.southparkstudios.com/full-
episodes/s15e01-humance...](http://www.southparkstudios.com/full-
episodes/s15e01-humancentipad#w=05.27.2011)

Note that the full episode is down until May 27, 2011 due to "contractual
agreements" (e.g. bookmark for later).

------
horser4dish
I think the biggest reason that nobody reads these is because of the sheer
size of EULA documents. They're dense paragraphs upon paragraphs of legal
text. I don't think that it's the legalese that scares people away, but the
fact that page numbers in the double digits is the norm.

I've found that reading and understanding is not particularly difficult, but
when I install iTunes/Windows/whatnot, it's because I want to _use that
software_. I'm sure a lot of people agree that they don't want to spend
twenty, thirty minutes reading through a license that says approximately the
same thing every other EULA has said before.

A shortened summary in plain English (or language of your choice, I suppose)
would be best, but as the article points out, that would open them up to all
of the legal holes that those 56 pages were busy closing. Creative Commons'
"human-readable" licenses (<http://creativecommons.org/licenses/by/3.0/>,
compared to <http://creativecommons.org/licenses/by/3.0/legalcode>) are a good
idea and one that I support, but as far as I know they haven't been tested in
court, which makes it difficult for a company with large amounts of money at
stake to embrace that.

~~~
wccrawford
Of course, Apple's EULA hasn't been tested in court, either, so it's hardly
any better if that's the criteria.

~~~
horser4dish
Last time I looked over it (I don't actually use iTunes anymore), a lot of the
EULA was devoted to the content and how you can't pirate it, and so on. That
seems to me to be the very things that the RIAA and other groups sue over. So
even though you are correct, Apple's specific terms of use have not been
tested, the idea (and who knows, possibly wording as well) behind it has been
successfully used in court by the owners of the licensed materials.

~~~
bugsy
I am able to buy CDs without signing any contract at all. So it appears that a
contract is not necessary for copyright infringement to still be illegal and
the contracts are completely unnecessary for the stated purpose of "preventing
piracy", which is already illegal, even without a contract.

------
jrockway
We really need some more regulation in this area. "Standard" legal agreements
are gradually eroding the rights of everyone, because while they are not law,
every company you do business with uses the same "standards".

For example, try obtaining wireless phone service where you can sue the
carrier if they wrong you in some way. You can't because every provider has
"mandatory binding arbitration" clauses. If you have a problem, some business
that the provider pays money to gets to render a decision on your behalf.
Guess who they usually side with.

~~~
rwmj
European law could be the model here. eg. In the UK such contracts are simply
and plainly unenforcible because of Unfair Contract Terms Act 1977 and Unfair
Terms in Consumer Contracts Regulations 1999.

[http://www.oft.gov.uk/about-the-oft/legal-
powers/legal/unfai...](http://www.oft.gov.uk/about-the-oft/legal-
powers/legal/unfair-terms/)

[https://secure.wikimedia.org/wikipedia/en/wiki/Consumer_prot...](https://secure.wikimedia.org/wikipedia/en/wiki/Consumer_protection#United_Kingdom)

I should note this only applies to consumer contracts. With contracts between
businesses it's expected that they do know what they're doing.

------
bugsy
Web contracts are an abomination. They are non-negatiable and are foisted on
people who have no ability to obtain proper legal counsel. The cost for a
qualified IP contract attorney to do an adequate document review of this
document and explain its consequences to a typical member of the public that
it is imposed upon would be more than $1000 per review. That would be
necessary to enable informed signing.

We need laws getting this under control. These contracts should not be
binding. The consumer side has no chance of understanding them even when they
do read the documents. That means there is no real consent and no real moral
contract. If companies insist on these extremely complex contracts for routine
transactions, the companies should pay the full cost of legal representation
for the other party.

------
MJR
I believe the analysis of item #3 is incorrect. The explanation of not
actually owning the product, while correct, is not the rationale for this
section of the document. Can anyone with legal knowledge back me up on this?

 _3\. Licensing: The terms state, "You agree that the Service, including but
not limited to Products, graphics, user interface, audio clips, video clips
[and] editorial content ... contains proprietary information and material that
is owned by Apple and/or its licensors, and is protected by applicable
intellectual property and other laws, including but not limited to copyright."

That sounds confusing. Handel explained it this way: When we buy something
from iTunes, we are paying for the license to listen to music or watch a movie
on our iPhone or other Apple device. But we are not buying the product itself
and so we can't actually own it, he said. "When you buy a book, you own the
copy of that book but not the actual material," Handel said "What you are
buying here is right to use music on certain devices."_

The reference here is not to the items you're purchasing but rather "Products,
graphics, user interface, audio clips, video clips [and] editorial content" -
meaning the stuff they use to SELL/MARKET the music/movies/etc in iTunes, not
the products themselves. They're talking about the reviews, the images, the
sound clips or trailers, the actual iTunes interface - not the stuff you're
buying.

~~~
horser4dish
I'm not a lawyer either, but it seems to me that you are correct. They
analyzed a different section (which is in several of their EULAs; under the
Mac/iPhone App Stores' as "USE OF PRODUCTS AND THE SERVICES " and under
iTunes' as "USE OF PURCHASED OR RENTED CONTENT") while quoting a section that
stated that you couldn't reverse-engineer iTunes itself. A sample of what
they're referring to:

 _Apple is the provider of the Services that permit you to license software
products and digital content (the “Products”) for end user use only under the
terms and conditions set forth in this Agreement.

[snip]

You agree that the Services and certain Products include security technology
that limits your use of Products and that, whether or not Products are limited
by security technology, you shall use Products in compliance with the
applicable usage rules established by Apple and its principals (“Usage
Rules”), and that any other use of the Products may constitute a copyright
infringement._

------
tzs
Where do they get 56 pages? The document they link to is only 20 pages if
printed, and is really 4 documents:

1\. The terms of sale for the the iTunes store, the Mac app store, the iOS app
store, and the iBook store.

2\. The iTunes store terms and conditions.

3\. The terms and conditions for the two app stores and the iBooks store.

4\. Their privacy policy.

They don't link to it, but there is a EULA for the iTunes application itself.
That's 79 pages. However, it includes 18 copies of the license, in 18
different languages. The English part is 2 pages--and it isn't even all Apple.
It includes separate terms and conditions for Gracenote's CD identification
service and 3Com's Kerbango Tuning Service.

~~~
btn
When it's paginated on an iPhone, it's displayed as 56 "pages".

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blahedo
I'm glad to see the wider exposure, but I don't see anything _new_ here---this
is essentially the same issue I ranted about two years ago
(<http://www.blahedo.org/blog/archives/001060.html>). Right down to the "why
don't they provide a diff?" problem.

------
stretchwithme
Wouldn't it be great if you could view the changes in a contract instead of
the entire contract? And get other opinions of what the implications of each
are?

~~~
roryokane
It’s unlikely that Apple and the other EULA-providers would bother showing
diffs, and they wouldn’t show user comments because of the legal dangers, so
this would have to be a third-party service.

It could be a website where you can copy a random portion of the text from an
updated EULA and paste it into a text field on the home page, and the site
would take you to a page containing the latest version of that EULA, readably
formatted. Alongside, it could show diffs and comments.

I wonder, is it legal to copy and display the EULAs themselves elsewhere? If
not, is it legal to copy just the diffs?

~~~
stretchwithme
I think you can keep and show a copy of contracts you agree to. If not, that's
an awfully one-sided situation.

~~~
bugsy
Many of these contracts contain a clause that the company can change the
contract in the future without restriction and without necessarily notifying
you of the changes, and you agree in advance to the changes, without knowing
what they might be.

Apple has a version of this: "Apple reserves the right at any time to modify
this Agreement and to impose new or additional terms or conditions on your use
of the Service. Such modifications and additional terms and conditions will be
effective immediately and incorporated into this Agreement. Your continued use
of the Service will be deemed acceptance thereof."

Note that no notification is necessary of the changes to obtain your consent.

If these sorts of contract clauses are really legally binding there is a very
serious problem with the legal system.

~~~
Retric
A fundamental limitation on contracts is you must gain something for any
contract or contract update to be binding. So EULA's are only enforceable if
you don't already have the right to use the software / service. In other
words, Sony could not prevent people from using other OS's on Plantations that
where not updated, but a patch could constitute value that allows them to get
a new contract with you. As to a service like Facebook things get a little
more tricky (and I don't know how that works out).

------
VarietyIsBetter
I've read through all the comments but for some strange reason no one has
mentioned the forced requirement of using KERBANGO TUNING SERVICE. How can you
gloss over a requirement to use a 3rd party software when that isn't even the
product you are trying to download? Do you boot up in the morning and wonder
where that new toolbar came from? Do you ever wonder why your system is so
slow? Forget the legal-ease, start wondering why your system runs so bad & you
have stuff on it you don't want.

