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Editor: D. A. Jeremy Telman
Valparaiso Univ. Law School

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Friday, April 23, 2010

Computer Game Retailer Uses Contract to Claim 7,500 Immortal Souls

This story from Fox News:

A computer game retailer revealed that it legally owns the souls of thousands of online shoppers, thanks to a clause in the terms and conditions agreed to by online shoppers.

The retailer, British firm GameStation, added the "immortal soul clause" to the contract signed before making any online purchases earlier this month. It states that customers grant the company the right to claim their soul.

"By placing an order via this Web site on the first day of the fourth month of the year 2010 Anno Domini, you agree to grant Us a non transferable option to claim, for now and for ever more, your immortal soul. Should We wish to exercise this option, you agree to surrender your immortal soul, and any claim you may have on it, within 5 (five) working days of receiving written notification from gamesation.co.uk or one of its duly authorised minions."

GameStation's form also points out that "we reserve the right to serve such notice in 6 (six) foot high letters of fire, however we can accept no liability for any loss or damage caused by such an act. If you a) do not believe you have an immortal soul, b) have already given it to another party, or c) do not wish to grant Us such a license, please click the link below to nullify this sub-clause and proceed with your transaction."

The terms of service were updated on April Fool's Day as a gag, but the retailer did so to make a very real point: No one reads the online terms and conditions of shopping, and companies are free to insert whatever language they want into the documents. 

While all shoppers during the test were given a simple tick box option to opt out, very few did this, which would have also rewarded them with a £5 voucher, according to news:lite. Due to the number of people who ticked the box, GameStation claims believes as many as 88 percent of people do not read the terms and conditions of a Web site before they make a purchase.

The company noted that it would not be enforcing the ownership rights, and planned to e-mail customers nullifying any claim on their soul.

This reminds me of the episode of the Simpsons when Bart sells his soul to Millhouse.  Though Bart had agreed to sell his soul to Millhouse in a negotiated deal - and, of course, Millhouse went and resold it for Alf pogs:

[Meredith R. Miller – h/t Cynthea Motschmann]

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Comments

Two aspects of this story struck me as interesting.
1. GameStation has made an argument against its own interest. The fact that "[n]o one reads the online terms and conditions of shopping" should suggest that companies are not free to insert whatever terms they wish into click-through agreements because assent to such terms should not be assumed. Because it shows that most people do not read such agreements and also that the company knows that people do not read them the company's April Fools joke provides evidence against the enforceability of click-through agreements. We look for objective manifestations of assent in such matters, and GameStation's joke indicates that it knows that consumers are not assenting to its terms when they click an "I agree" button.
2. The company's experiment suggests that at least 88% of shoppers do not read agreements before clicking. That number seems low to me. Other research suggests that very close to 100% of consumers do not read such agreements or do not read them with any care. I suspect that the number was a bit lower here because the opt out box caught somebody's eye. That person then alerted some friends to the opportunity to get a voucher and the news spread to about 10-12% of the buyers.
JT

Posted by: Jeremy Telman | Apr 23, 2010 5:30:30 AM

As someone who has done surveys, qualitative interviews and behavioral experiments on how individuals experience and interpret form-contracts like this one, I don't think that the rate of readership is that low. Readership rates are context dependent based in part on how much other information about the terms of exchange are offered by the company, how much trust readers have in the drafting organization, and the ease or difficulty of presentation of the contractual terms.

If anyone is curious, the first article I've written on this looks at the relationship between how individuals experience and interpret a form-adhesive contract in the employment setting. It's available here: http://ssrn.com/abstract=1105424

In the second article, available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1443549 ,
I report the results of an experiment in which participants are randomly assigned to one of four conditions that varies the way in which they experience the consent phase of the form contract governing their relationship with the researchers. In one condition, it's just like a boilerplate contract online, in other conditions subjects have more input into the negotiation process before consenting, and there is a control condition in which there is no contract at all. Subjects are all then put into a survey. The deal that is offered to everyone is this: do a survey and get a free DVD of their choice shipped to them for free. Everyone enters the survey having agreed to do the whole survey, except the control condition. Some have negotiated over this term, some have negotiated over a different term, some have agreed to it as it was buried in a scroll-window contract like Gamestation's.

The survey is way too long and onerous to complete. When people try to quit, they are randomly assigned again to one of four prompts that vary the way in which enforcement of the contract is sought. Everyone gets a DVD in the end...

Results suggest that less adhesive contracts make people more likely to comply with onerous terms, and a moral framing of enforcement demands (please live up to your word) similarly generates the greatest rate of compliance relative to alternative framings tested (social, legal, instrumental). Also, a legal threat of enforcement does no better than a naked request for performance (about 50% compliance rate), and the standard way that boilerplate is presented does about the same as having no contract at all.

Posted by: Zev Eigen | Apr 24, 2010 10:17:26 AM

Zev,

I was basing my comments on the PCpitstop.com experiment. This was a website that inserted in its EULA a clause promising $1000 to anyone who responded. It took four months and over 3000 downloads of the software before someone responded. Why is that experiment not powerful evidence that far less than 1% of consumers read click-through agreements with any care?

JT

Posted by: Jeremy Telman | Apr 28, 2010 4:26:15 AM

Hi Jeremy,

That is another cool experiment you referenced. A few things:
1. I think readership rates are very context sensitive-- for instance, you can get higher readership rates if there is LESS up-front info offered, or if the contract is made to look differently from other contracts normally encountered, or if the transaction is an unusual one, or if there are fewer steps to get to the contract's terms (ie-- a link requires two steps to see the contract as opposed to the contract being right there).

2. We need to be clear on what we mean by "reading." I have subjects' readership measured millisecond by line in my experiment. It appears that VERY few people "READ" the contract all the way through. But, many appear to skim, and consistent with other data I've gathered, some just skim paragraph headings and read only the parts that sound like they could be problematic for them. Also, many start out reading the first few lines or paragraphs and then drop off. So, clauses "buried" in paragraph 12 of a 30 paragraph tiny-fonted K nestled within a scroll window aren't going to get found too frequently.

-z

Posted by: Zev Eigen | Apr 28, 2010 6:35:30 AM

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