I Agree and Understand
Every so often I find I’ve stepped back a couple of paces from my daily work and from that unfamiliar remove catch sight of law in all its lunacy. On this occasion I purchased a .ca domain and, so, was required to complete the registration process stipulated by CIRA, the Canadian Internet Registration Authority. The heart of this process is an “agreement” that the registrant must accept in order to obtain the right to a .ca domain and at the bottom of which is the standard box to tick to indicate acceptance — and understanding! — of this “click-wrap” or “clickthrough” contract.
There are over thirteen thousand (13,000) words in the agreement.
And as if that were not enough, some twenty or thirty other documents — “Registry PRP”, the CIRA policies, rules, and procedures — are incorporatated by reference containing an uncounted number of words. (One of these — just one: CIRA Domain Name Dispute Resolution Rules — contains over 7,000 words.)
But wait, as they say, there’s more:
10.1
(1)
Amendment by CIRA.
CIRA shall have the right, at any time and from time to time, to amend any or all
of the terms and conditions of this Agreement provided that any such amendment to this Agreement shall be applicable to all Persons seeking the registration of a Domain Name or who maintain a Domain Name Registration. Any such amendment to this Agreement will be binding and effective upon the later of thirty (30) days after the posting of such amendment on CIRA’s website (currently at http://www.cira.ca) and thirty (30) days after CIRA gives notice that amendments to the Registrant Agreement have been made.
And then there’s the text itself. Some of it “shouts,” using unrelenting capitals because no one could claim not to have read and understood something that might better have been chiselled on Roman marble and erected high above the heads of the plebs. The rest is that reduplicative redundant cardboard that the client world has come to know and love, e.g.:
Authorization. The Registrant has all necessary corporate power, authority and capacity to enter into this Agreement and all other documents and instruments contemplated by this Agreement and to carry out its obligations under this Agreement and such other documents and instruments. The execution and delivery of this Agreement and all other documents and instruments contemplated by this Agreement and the performance by the Registrant of its obligations under this Agreement and such other documents and instruments have been duly authorized by all necessary corporate action on the part of the Registrant.
Yes, yes, I know. This is nothing new. Neither is it uniquely bad. And I know, too, that no one takes these click-wrap contracts seriously. But even so, it is lunacy.
“…uniquely bad…”
I wonder if contract lawyers, or contract signers, could sue the origniators of unreadable contract language for not protecting their IP, and thus not sparing us the unplain language. Arguably a form of negligence? :-)
See: http://adamsdrafting.com/system/2006/06/01/the-contract-drafter-as-copyright-violator/
It’s one of my best fight ( I received a SSHRCC grant on this topic) and because there’s no physical limitation in electronic document, companies proposed some very very long contract to their clients. Yahoo! contract for example is gaining around 10% each year. Content of these contract is quite poor too (I wrote a paper dealing with the fact that almost all contract are illegal – in french at http://www2.droit.umontreal.ca/cours/ecommerce/_textes/cyberconsommationillegale.doc)
I even proposed a free contract generator to some e-business firms in Quebec (http://www.cyberconsommation.ca/contrats/index.php) with few word and many images. It was a huge flop. Few responses and only to told me that all companies had the same kind of contract.
Perhaps, the solution could be, as you do Simon, to denounce companies using these quite ridiculous contracts.
Perhaps we should create an online survey for .ca domain holders, and ask them to take a test of their comprehension of the agreement? ;-) I remember clicking the box, but beyond that…
Isn’t there a priciple in Lawyer-land that says ‘ignorance of the law is no excuse’?
Yes Steven, ignorance is not an excuse but there’s many examples where merchants developing tricks to be sure that clients don’t read contract.
Concerning lenght of contract, I’m quite sure that 80 or 90% of CIRA agreement clauses are just absolutely useless.
So survey is a good idea even if I believe that nobody read contract.
see:
http://www.eff.org/wp/eula.php
or
http://yro.slashdot.org/article.pl?sid=05/02/23/2315211
other than for work purposes, i’ve pretty much given up on CIRA.
i admired their new position on privacy, but then they hypocritically cancelled domains of individuals (who didn’t want their personal info broadcast globally via whois) before giving them a chance to put corrected info into their new privacy-friendly system which was introduced a month later. talk about a money grab.
to my mind, the obscure clickwrap contracts are merely an accurate reflection of their hopeless in-house bureaucracy. and the scarier thing is that ICANN is just so much worse *shudder* :(
The thing I hate the most is that there is little or no recourse if there are any parts of the agreement you disagree with and would like to reword. It is all or nothing. At least with some of the vendors I deal with for work, I can go back and explain why a clause doesn’t work for us and try to negotiate a change. Sometimes works and sometimes doesn’t, but at least there is that possibility.
This is one of the statements (can’t remember which–rebooking statement, I think) from a major Canadian airline’s website flight booking system which I had to agree to when booking a flight today:
You know, some of that isn’t even real words. It looks like a coding nightmare gone bad. There are so many abbreviations and industry-specific jargon in here to render it useless. And at least here it is in a nice, big chunk of text. On their website it was all in one long, skinny column and took about an hour to read. I’m surprised I wasn’t cancelled out of the booking system for letting too much time elapse! ;-)
I’ve always thought that Blake Cassels should be ashamed of that contract for CIRA. It gives the agency and the lawyers a bad name. Apparently it prints out to about 145 pages. Someone connected with CIRA told me that the record for scrolling through it to click “I agree” is about 2 1/2 seconds….