Nobody Reads the ToS (Lit Review)

February 12, 2015

Who

Apple Inc. / Fedora Project / Python Software Foundation

What

iTunes Terms and Conditions / Fedora Project Contributor Agreement / Python Contributor Agreement

Where

apple.com / fedoraproject.org / python.org (PDF)

When

Current (as of 2/11/2015)

The Gist

Apple has a notoriously lengthy, dense, and morally dubious terms of service agreement which is required to use almost any Apple service or device.
By contrast, the Fedora Project Contributor Agreement and Python Contributor Agreement are both concise and non-threatening.
Since an extremely minute percentage of people read the ToS of products they use, many people may be agreeing to things they wouldn’t otherwise.

The Good

For some reason, Apple cares enough about your ability to continue being alive enough to use their products that they include safety information in their ToS…how nice!
The FPCA is extremely clear about what it does and does not do, by not superseding explicit licenses specified by the contributor.
The Python Contributor Agreement is concise and fair. PSF gets distribution rights, the contributor retains copyright. Pretty sweet.

The Bad

Apple has no liability to protect your information or media in the event of a security breach or hack. Sorry JLaw.
The Fedora Licensing page explicitly prevents me from licensing contributions to Fedora under the Apple iTunes License.
I can’t GPL or BSD code I’d contribute to Python. Those be like my 2 favorite open source licenses dude.

The Questions

If a court case were to arise involving Apple’s ridiculously impossible to comprehend ToS, could such non-readability have an impact on the outcome of the case?
The list of acceptable licenses to contribute to Fedora under is incredibly long, so how do they maintain legal compatibility between all of those code blobs?
Why can’t I choose the GPL when contributing to Python?

Even as a person who creates software for a living, I cannot come to properly envision the incredible amount of legal agreements people enter with little to no consideration. Clicking “Agree” when installing any program usually means checking a box indicating agreement by the user to obey some terms or policy relating to using the program. This implies that the user has read and understands the document. How often is that really the case?

The Apple iTunes Terms of Service is a scary, untamable beast of a document. I read it as an assignment for Business and Legal Aspects of FOSS, a brand-new class at RIT. It took quite a bit of time to read, many sections were repeated with minor semantic alterations pertaining to specific Apple services. The document contains a seemingly endless array of sections, provisions, clauses, indemnifications, and disclaimers, which range in level of sanity from asinine to ludicrous.

You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons

An entire (hilarious) episode of South Park is based on the impracticality of the iTunes ToS. While the show embellishes what the user allows Apple to do quite a bit when the Agree button is clicked, there is a lesson to be learned. That Apple would prohibit people from using iTunes to build a bomb seems silly, but what’s to stop Apple from including tangibly harmful terms in this document?

The answer is: not much. Even if people bothered to read these documents, anyone who agrees to the terms agrees that Apple can change the terms at any time, with no requirement to notify the users. Those same users could conceivably enter into that new agreement without realizing it, because, to Apple, continued usage of the software after a change in the terms constitutes agreement.

That’s scary. But it’s just the tip of the iceberg. People live their lives not reading things they should. Who wants to read dull legalese? The only people I can think of are lawyers, and they get paid for that type of thing. Should I hire a lawyer to follow me around all day and make sure I don’t accidentally legally bind myself?

It’s unpleasant to read the iTunes ToS. That’s the mechanism by which people become products. Maybe if people read what they give up when they agree, they wouldn’t agree. Furthermore, why do people even use iTunes? Even if the agreement was…agreeable, it is awful software.

While not directly comparable, the FOSS-y documents mentioned at the top of this review seem designed to allow the individual to retain power and rights. Concise, understandable, and the Fedora one even has a smiley face. I don’t recall any Apple literature ever including emoticons of any sort.

FOSS: 1
Tim Cook: 0