Tuesday, November 12, 2013
Hello, I’m one of the new contributors. Thanks for letting me feed the beast.
I’ll be writing some mini-reviews of recent articles and essays. If you have something fresh that you’d like reviewed, e-mail me (firstname.lastname@example.org).
Today I’m reviewing Set in Stone? Changes and Innovation in Consumer Standard-Form Contracts, 88 N.Y.U. L. Rev. 240 (2013), by Florencia Marotta-Wurgler of New York University School of Law and Robert B. Taylor.
Set in Stone studies the evolution of End User License Agreements (EULAs) by comparing their 2003 content to their 2010 content. The article provides a wealth of data about EULA development based on company type, product type, term type, word count, “bias” toward seller or buyer, innovative terms, legal representation, and impact of litigation on terms.
The article focuses on changes in EULAs’ relative buyer-friendliness. For example, a EULA that has changed to inform buyers of their right to return a product has become relatively more buyer-friendly, but a EULA that has changed to allow a seller to remotely disable a buyer’s software is relatively less buyer-friendly.
The article concludes that EULAs are becoming relatively less buyer-friendly. Surprise!
Data provides the great joy of quibbling over its meaning. For example, is a EULA that informs buyers they can return a product really buyer-friendly? Such notice may render the EULA more enforceable, which actually may be more seller-friendly. But quibbling aside, Set in Stone makes a major contribution simply by giving us a treasure trove of data.
A few thoughts on this important article:
More data, please: Set in Stone measures EULAs’ relative buyer-friendliness, but it acknowledges that it lacks the price information we would need to determine whether EULAs are increasing welfare or merely redistributing wealth. This is the big question, isn’t it? Hopefully some enterprising, empirically-minded scholar will relate Set in Stone to the relevant pricing data and tell us whether we’re better off now than we were ten years ago.
Democratic degradation: Set in Stone does provide evidence of the democratic degradation described in Margaret Radin’s Boilerplate. Set in Stone notes that EULAs increasingly include terms that allow sellers to control buyers’ performance through technological means as opposed to litigation. For example, some EULAs allow sellers to remotely terminate a buyer’s ability to use software when the seller deems the software has been misused. Isn’t this like a liquidated damages clause that lets the seller unilaterally determine the buyer has breached and provides the buyer’s ATM pin number? Should buyers have their day in court before sellers enjoy their remedies? Even if buyers were receiving price discounts in exchange for their legal rights, we might think such seller self-help mechanisms are contrary to our basic political arrangements.
Lawyers as product engineers: Set in Stone suggests that EULAs are more susceptible to innovation than other contracts. So, if contracts are product components, perhaps lawyers can engineer better products. Entrepreneurial lawyers could identify EULAs containing inefficient terms and revise them to create economic surplus. Lawyers could be trained to identify and eliminate EULA inefficiencies. In-house lawyers could be transformed from cost centers to profit centers. And all without doing any math! Well, we might have to do some math.
[Image by James Provost]