License Disagreements

Apple’s “QuickTime Player” is a ubiquitous piece of software. On Macs, it’s installed at birth alongside the operating system, and most Windows users find themselves downloading it at some point to watch captivating movie clips featuring “Star Wars Kid,” or whichever chubby dancing man happens to be in vogue this week. I’d like therefore to perform a public service and remind QuickTime users of a provision they agreed to when they accepted the license agreement the first time they ran the program: you should make certain, whatever you do, that you don’t use QuickTime in the “operation of nuclear facilities, aircraft navigation or communication systems, air traffic control systems,” or life support machines. Don’t, because you promised Apple you wouldn’t when you clicked that button labeled “I Agree,” but more importantly don’t, because I value your well-being and apparently it’s just not safe.

I’m willing to bet that not too many people knew they agreed to that particular provision, because who wants to read a license agreement? They’re long and dry and filled with text abrasively written in CAPITAL LETTERS—and Harvard students barely have time to do the reading for their classes. We’ve become so accustomed to clicking “I Accept” or “OK” or checking boxes labeled “I have read and am willing to abide by the terms of this license,” I’m pretty sure we all could have signed away our first-born children, and we’d have no idea until the collection agency showed up at the hospital.

And in general, I think most people would contend this state of affairs is just fine with them. After all, purely by virtue of being born on American soil we’re all bound by the U.S. Code, a body of rules and regulations so long and complicated it makes software licenses look like kindergarten reading primers. You can go to jail for defacing a penny—how much worse can a company do in their fine print than that?

A lot worse, apparently. Consider this gem from the newest version of the terms of service for the AOL Instant Messenger service (AIM): “...by posting Content on an AIM Product, you grant AOL, its parent, affiliates, subsidiaries, assigns, agents and licensees the irrevocable, perpetual, worldwide right to reproduce, display, perform, distribute, adapt and promote this Content in any medium. You waive any right to privacy.”

It’s not entirely clear that a license agreement like this one is sufficiently powerful in the eyes of the law to do what it claims to, but I sure wouldn’t want to be the one to find out. AOL has flatly denied in press releases this week that the sections of the agreement quoted above apply to person-to-person communications (and indeed that they log such communications at all), claiming instead that they’re reserving only control over content posted to public forums. That’s pretty creepy as it is, but I also didn’t accept the press release—I accepted the terms of service agreement. And to me, it looks like it would only take a little effort for those terms to be twisted into giving AOL the right to publish a book of my (profoundly uninteresting) AIM conversations, claims to privacy notwithstanding.

This is where the difference between license agreements and laws becomes quite clear. At least in theory, the laws of nation and state are constructed on the basis of a complicated legislative process, one which is accountable to the people, or at least one which requires literally hundreds of elected officials to be crooked or lazy before it breaks down. And even in that case, we have the court system and the appeals process (and ultimately the civil liberties afforded us by the constitution) to protect us from bad laws.

AOL’s terms of service are written by lawyers being paid by AOL, accountable to AOL executives. Apart from the (relatively weak) possibility that this particular contract wouldn’t hold up to judicial scrutiny because it wasn’t displayed in a sufficiently prominent place or because it violates in some technical way an obscure subsection of an obscure decades-old law, there is no recourse against any decision AOL makes to exercise the rights they’ve granted themselves. After all, you agreed to give AOL these rights in exchange for the use of their services.

As with most conundrums in technology law, there is no easy answer. AOL has no incentive to change their terms of service to something friendlier because they possess an enormous amount of inertia that makes it unlikely their users will switch away from their product. Even if users are sufficiently disgruntled to the point that they would do so if they knew this clause was present, we’ve already established that most users almost certainly haven’t read the terms of service to begin with. It’s possible to encrypt AIM conversations so that AOL can’t intercept them, but to do so requires both parties to commit and requires a certain level of technological proficiency which the typical AIM user doesn’t possess.

The lesson, then, is to be reasonably savvy. It’s safe to bet that AIM will probably not sell your secrets, but it still pays to know that they could. The license agreement for QuickTime and Harvard’s network access policy are documents under whose influence you find yourself on a regular basis, and they aren’t that long. It seems unlikely next time you see a button that says “I accept,” you’ll hesitate much before clicking it, but at the very least you should note in the back of your head that you just agreed to something. And if you have a minute, maybe it’s worth skimming what you’re agreeing to: at the very least, all your friends working in nuclear power plants will appreciate your looking out for them.

Matthew A. Gline ’06 is a physics concentrator in Quincy House. His column appears on alternate Tuesdays.