"We're updating our novel-length Terms of Service?"

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Yesterday I got an email from airbnb.com, under the heading "We're updating our Terms of Service". It starts this way:

Hi Mark,

Our business and our community have grown, so we are updating our Terms of Service, Host Guarantee Terms and Conditions and Privacy Policy. These changes will be effective for all users on April 30, 2014. When you use our site on or after that day, we will ask you to agree to the new terms.

It goes on to explain:

We have put up a page to explain these changes in more detail. You should review the documents in full on your own. The old and new versions of both documents can be found at the “Terms of Service”, “Privacy Policy” and “Host Guarantee Terms and Conditions” tabs at https://www.airbnb.com/terms

Airbnb is only as strong as its community. We are so grateful to see our community strengthen as we grow. Thank you for your time!

The Terms of Service tab  is a document comprising 28,246 words of legalese. The Privacy Policy tab comprises 8,729 words. The Host Guarantee Terms and Conditions  comprises 16,700 words. There's Guest Refund Policy tab weighing in at a mere 1,406 words, and a couple of other tabs that are merely magazine-article size.  Ignoring them, we get 28246+8729+16700+1406 = 55081 words, or about the size of a short novel, though much less readable.

I'm used to long click-through agreements that no one has the time or interest to read, but this seems to be some kind of a record.

If I were to read this material out loud, at a rate of 150 wpm, it would take 55081/150 = 367.2 minutes, or about six hours and seven minutes. With silent reading at 400 wpm, it would be a mere two hours and seventeen minutes. "Thank you for your time" indeed.

Is it actually legal to impose a semi-impenetrable 55,000-word contract on someone, simply by asking them to click on a link claiming to have read and accepted something they could not possibly have read and understood?

Update — In the comments, Patrick Gribben points us to Austin Carr, "Inside Airbnb's Grand Hotel Plans", Fast Company, April 2014:

When I first heard of "the sheet," I assumed it was bogus. Word was that Airbnb CEO Brian Chesky had boiled down his strategic road map–all of Airbnb's secret plans for 2014–onto a single piece of paper.  

Yet on an early evening in late January, I am sitting in a conference room at Airbnb's San Francisco headquarters across from Chesky and Chip ­Conley, Airbnb's recently ­appointed head of global hospitality, and Chesky is wondering aloud whether to show me the fabled ­document. Even as he's talking about it, I am still ­unsure whether I'm being punked.  

After a second of deliberation, Chesky pulls the trigger: He sends an employee to retrieve the sheet. He then slides it in front of me, as Conley, only half-joking, declares, "The infamous paper to take over the world!"  

The 8.5-by-11-inch typewritten sheet highlights the company's four ­major goals for 2014, each with specific objectives, product features, target launch dates, and year-end milestones. I can't reveal them all here–Chesky will debut new initiatives sometime this summer. But the document is a remarkable piece of work, an example of bold corporate strategy boiled down to its essence. Sixty people have been working for five months to distill many ideas to this core.

 So for the CEO, sixty people work five months to distill their world-domination plans into one "8.5-by-11 typewritten sheet", while the rest of us are asked to read and agree to 55,000 words (= several hundred "typewritten" pages) in order to allow ourselves to be dominated?

 

 

 

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20 Comments »

  1. Jonathan said,

    April 10, 2014 @ 8:09 pm

    http://en.wikipedia.org/wiki/Adhesion_contract

  2. dw said,

    April 10, 2014 @ 8:18 pm

    IANAL, but the Wikipedia page on Clickwrap may be of interest.

  3. MC said,

    April 10, 2014 @ 9:41 pm

    "Is it actually legal to impose a semi-impenetrable 55,000-word contract on someone, simply by asking them to click on a link claiming to have read and accepted something they could not possibly have read and understood?"

    That's one of the things you are agreeing to in the fine print.

  4. Rubrick said,

    April 10, 2014 @ 10:19 pm

    As a generally honest person, I'm always quite bothered by the boilerplate stating "By clicking this button I state that I have read and agree to the above terms of service" or whatnot. I haven't read it, they know damn well neither I nor anyone else has read it, and it irks me that I have to assert a falsehood no one believes.

    I'd be much happier if the text said "By clicking this button I agree that I am bound by the above terms of service whether I have read them or not."

  5. Lorian said,

    April 10, 2014 @ 10:43 pm

    My "favorite" example of this was when I actually sat down and read the Terms of Service on my cell phone contract before clicking the "I read and accept this" button. The form I was trying to fill out expired while I was reading (and I read damn fast!). Clearly they never expected anyone to actually read it.

  6. Ben said,

    April 10, 2014 @ 10:51 pm

    Rubrick, contract law requires that both parties claim to have read and understood the contract.

    I'm a little surprised no one has tried applying computers to these things. Just copy and paste the contract into a website, have the computer identify the clauses and tell you, "this contract says A, B, C and D with 99% certainty, but you should check clause E and F because those are unfamiliar."

  7. Neal Goldfarb said,

    April 10, 2014 @ 11:18 pm

    @Ben: "contract law requires that both parties claim to have read and understood the contract."

    No it doesn't. All that's necessary is that the parties sign the contract after having had an opportunity to read it.

  8. Michael Sullivan said,

    April 11, 2014 @ 12:28 am

    Contract law doesn't require anyone to read anything. Contract law depends on the mutual understanding of the parties. If the parties agree that one party can change the contract terms, subject to the other party's acceptance, there are limits on how the first party can change the contract and remain lawful. For example, if buried in the 28k words of legalese in the amended TOS was a provision by which you purportedly agreed to pay the owner of the website the full balance of all your bank and stocktrading accounts, or agree to adoption of your children, or agree that the website could have a lien on all of your real property, in exchange for continued use of the service, no court would uphold that modification. That would clearly not be something the parties mutually agreed to, and it would be unconscionable to enforce it.

    On the other hand, increasing the fee for some existing service from 15 cents to 17 cents per use, or increasing the monthly fee by 5%, or some other similar modification, if clearly disclosed in advance, would probably be deemed enforceable if the contract gave the provider authority to change the TOS subject to acceptance by use.

  9. reader_not_academe said,

    April 11, 2014 @ 2:45 am

    http://tosdr.org/

    “I have read and agree to the Terms” is the biggest lie on the web. We aim to fix that.

    (i'm not affiliated with this site, just find it very pertinent. unfortunately it's more about software terms of service, they don't include airbnb – yet.)

  10. John F said,

    April 11, 2014 @ 5:11 am

    As a computer programmer, I sometimes use text difference tools (like the amazing Beyond Compare) to compare two versions of a text. Where a company is notifying you of a ToS change on a computer, while I like that many now show a summary of changes at the top, they should have an option show a text difference between the two versions to highlight the changes in the full text.

  11. Yet another John said,

    April 11, 2014 @ 11:06 am

    Michael Sullivan said: "Contract law doesn't require anyone to read anything. Contract law depends on the mutual understanding of the parties."

    This sounds eminently reasonable. But then, why is it that the standard options they give us on these websites are usually "I have read and agreed" or "I do not agree"? Some corporate lawyer somewhere must have consciously decided on this wording.

    What would happen if one tried to carry out a class-action lawsuit against one of these companies alleging that forcing all users to choose between "I read and agree to.." and "I disagree" runs contrary the aforementioned principle of contract law, that is, that users must have a viable option of "merely agreeing"?

  12. Victor Mair said,

    April 11, 2014 @ 11:58 am

    @Michael Sullivan

    "…if buried in the 28k words of legalese in the amended TOS was a provision by which you purportedly agreed to pay the owner of the website the full balance of all your bank and stocktrading accounts, or agree to adoption of your children, or agree that the website could have a lien on all of your real property, in exchange for continued use of the service, no court would uphold that modification. That would clearly not be something the parties mutually agreed to, and it would be unconscionable to enforce it."

    I agree that it would certainly "be unconscionable to enforce" such stipulations. But what if one of those novel-length contracts actually did contain some such deleterious terms and, by clicking on the agreement box, you agreed to them, wouldn't the courts be obliged to enforce them? By what legal means could they avoid enforcing them? If the courts would be required to enforce increases in prices and fees agreed to in this way, how could they get out of enforcing whatever other terms were in the novel-length contract?

    I'm pursuing this inquiry because I recall a court case where a woman was sentenced to life in prison or some extremely long period (99 years?) for touching a young male. It seems that all parties accepted the fact that what she did was not really molestation, and even the prosecutor spoke apologetically when referring to the inappropriateness of the sentence. The judge, as well, appeared to be uneasy when he read the sentence, yet the letter of the law required it.

    A final note: I try as hard as I can not to put myself in a situation where I have to decide whether or not to click on a novel-length contract, but I bridle just as much when my bank or insurance company sends me 8 pages of fine print spelling out all the boring changes in their prices, fees, and procedures. I realize that some of them might be significant, but I just can't bring myself to read all of that tedious stuff. Furthermore, in these cases, they usually aren't asking me to accept the changes. They're basically just telling me that they have enacted them.

  13. blahedo said,

    April 11, 2014 @ 12:09 pm

    My understanding (IANAL) is that this kind of licensing _still_ has not been formally tested in court, and every time it looks like it will be, companies rush to settle rather than have them tested. Given that written contracts are meant as the physical distillation of a more fundamental meeting of the minds, it's not at all clear that these "agreements" are actually as enforceable as the companies would like us to believe.

    @Lorian, yes. It sort of gives away the game, doesn't it? A couple years ago I wrote up an experience with an Apple TOS update where the various agreements collectively took up 110 KB (so, probably about 20K words), among other faults:
    http://www.blahedo.org/blog/archives/001060.html
    That one also timed out long before I had finished reading it.

  14. Jonathan said,

    April 11, 2014 @ 7:28 pm

    @Victor Mair: Because contract law is really, really different than criminal law. Contracts require a meeting of minds between the parties. These contracts of adhesion have suits over unconscionability on the grounds than no one could have rationally agreed to the terms because they are, well, unconscionable. In criminal law, however, you don't need a meeting of the minds — just obedience. That said, depending on the crime, there may be other issues, like the rule of lenity when the law is ambiguous, and some crimes have an explicit mens rea element: one must know one is doing something wrong — but not all laws have that element.

  15. Patrick Gribben said,

    April 12, 2014 @ 4:07 am

    You'll be pleased to know that at the other end of the chain the CEO is working with an A4 sheet which he plans to boil down even further
    http://www.fastcompany.com/3027107/punk-meet-rock-airbnb-brian-chesky-chip-conley

  16. TW said,

    April 12, 2014 @ 7:40 am

    Here's a new explanation for why we've arrived at ever-expanding contracts, if not a solution:

    http://www.amazon.com/More-Than-You-Wanted-Know-ebook/dp/B00HBFGEPC/ref=sr_1_1?ie=UTF8&qid=1397096584&sr=8-1&keywords=omri+ben-shahar

  17. Ellen K. said,

    April 12, 2014 @ 7:46 am

    I do like when websites use the wording "I agree to the terms of service" without saying anything about having read them or not. I do see that from time to time. It's always nice not to have to choose between lying, reading the terms of service completely, or not using the service.

  18. juanito said,

    April 12, 2014 @ 8:20 am

    The thing I find spooky is their telling me to do the review "on my own"

  19. Norman said,

    April 12, 2014 @ 10:15 am

    Eric Posner, a respected legal scholar, makes a similar point and provides a brief explanation for it in a recent blog post: http://ericposner.com/more-than-you-wanted-to-know/

  20. Francois said,

    April 14, 2014 @ 4:30 am

    @John F: "Where a company is notifying you of a ToS change on a computer, while I like that many now show a summary of changes at the top, they should have an option show a text difference between the two versions to highlight the changes in the full text."

    There is actually a site for this – https://tosback.org/ a collaboration between EFF, the Internet Society, and ToS;DR. Unfortunately it's usually far behind and incomplete. And I really agree it should be incumbent on companies to provide this service themselves.

    "We have updated our Terms of Service! __Diff__"

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