12 comments

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  Adam Thierer

  10 months ago

  This point you make here is really important, and it is often made by others here at the TLF--especially Tim--with regards to Net neutrality and other issues:
  
  "consumers always look to experts as surrogates. Thanks to the Internet, surrogate-expertise is far more effective (and rapidly so) than ever before: The blogosphere itself plays the role of collective experts & consumer protection watchdogs."
  
  Indeed, some of us geezers are old enough to remember those crusty pre-Internet days when we waited patiently each month for a copy of Consumer Reports to be delivered in our mailboxes to get independent, watchdog reviews and analysis of new products and services.
  
  Think about that: Waiting a month for expert review of new stuff! My kids will laugh at the thought when they get older and tell them about how things used to work. They will grow up in a world of instantaneous collective watchdogging by the Netizenry. In essence, the collective intelligence of the Net is the new Consumer Reports.
  
  But hey, I'm sure the FCC could things done much quicker if we just past some laws and empower them to meddle in these markets in the name of "protecting consumers." I mean, they just have such a great track record on that front.
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  Robb Topolski

  10 months ago

  Google's browser exists in a universe where there was zero friction -- it was a new entrant in a highly competitive market and it had exactly 0% of it. Of course the marketplace speaks in a situation like that.
  
  Your first-sentence reference to Network Neutrality isn't exactly the same, is it? Most U.S. addresses have only one or two broadband choices. Customers don't have the same ability just to slide over to the any number of alternative broadband providers as they do to switch web browsers.
  
  And lest we forget that this controversy was about an item in the Terms of Service that was available to be scrutinized. The broadband providers, so far, are not being very forthcoming as to the real terms and limits and privacy invasions within their services.
  
  Robb Topolski
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  Berin Szoka

  10 months ago

  Fair points all, Robb. I didn't mean to suggest that this argument would play out exactly the same way in every context or for every issue. Companies like Google are indeed probably more likely to cave to public pressure on their EULAs than would be an ISP. I think the same dynamic does play out for ISPs as well, but you're right that I'd have a harder argument to make there.
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  Seth Finkelstein

  10 months ago

  Umm, folks, this wasn't a "market" matter in the first place. Various Google people have made it clear that the TOS was just a boilerplate thrown-together for a relatively low-level project.
  
  The point which makes the argument in this article laughable and ludicrous - and I mean that, I'm not just being colorful, it's pretty much blithering nonsense - are examples such as "arbitration" and "no class action" clauses, which have been bitterly fought in court, and where corporations don't care about the bad publicity.
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  Jim Harper

  10 months ago

  @Robb Topolski - Did you notice how Comcast quickly (and, yes, clumsily) caved on its up-to-that-time undisclosed BitTorrent throttling? The marketplace spoke in that situation too.
  
  @Seth - Alas, it's a corollary of markets serving the great mass of consumers that it doesn't always serve every outlier. You are among a small group that doesn't like these clauses in EULAs, it's up to you to generate enough interest; it's not a failure of markets if others don't share your concerns.
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  Seth Finkelstein

  10 months ago

  @Jim - Do you even know what I'm talking about? I'm serious. That sounds rhetorical, but I mean it. Do you know the issues I'm describing? Your reply is pure knee-jerk sneer.
  
  Bleh. I really shouldn't do this. Libertarians are like cuckoo-clocks, their "Cuckoo" is "Markets".
  
  [Tedious explanation - denial of class-action affects HUGE NUMBERS OF PEOPLE! It is one of the major legal tools against corporate abuse.
  "Arbitration" is almost a Libertarian fantasy, where you contract away all your legal recourse]
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  Berin Szoka

  10 months ago

  Thanks for your comments, Seth. I'm a little confused by why you're fixated on arbitration and class action suites--neither of which I mentioned. I take your point that there are cases in which companies won't back down when criticized for "over-reaching" in their EULA. Indeed, I acknowledge as much in my post. My point is not that the threat of public criticism will prevent any company from ever including any provision that offends someone, or that they would inevitably back down when criticized for doing so. Rather, my point is that such crticicism and the threat thereof together provide a powerful check on the tendency of companies to "over-reach"--either consciously or (as appears to have been the case here) simply by thoughtless drafting--and that, overall, the result will be a constant, rough "happy medium" between the two extreme ends of the spectrum here: (i) those who want companies to give them everything for wonderful services and content for free with no strings attached and (ii) companies that want to harvest the internal organs of their customers' children. This happy medium should roughly approximate common expectations of privacy, fairness, etc.--or, one might argue, would actually tend to fall more on the side of consumers, precisely because web companies are so dependent on customer goodwill that they will generally be willing to err--when pressed--on the side of not being perceived to screw over their customers.
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  Seth Finkelstein

  10 months ago

  I'm "fixated" on arbitration and class action suits because they are obvious counter-examples and extremely important. Yes indeed, you didn't mention them. No personal offense meant, but that is why your argument is babbling nonsense, because those are a few elephants in the room which make a mockery of your post.
  
  To wit: "my point is that such criticism and the threat thereof together provide a powerful check". But they don't. There's no powerful check.
  
  Let me try to outline how nonsensical, how absurd, is what you've written - note, I mean this literally, I'm not being gratuitously rude.
  
  GOOGLE DID NOT WANT TO HAVE THOSE TERMS. IT WAS A *MISTAKE*. AN *OVERSIGHT*. NOT SOMETHING THEY WANTED TO DO!!!
  
  WHEN COMPANIES *DO *WANT OPPRESSIVE TERMS, THEY *IGNORE* THE FLAMERS (see arbitration, class-action, for proof).
  
  THE ONLY THING WHICH HAS WORKED IN *MANY* CASES IS *G-O-V-E-R-N-M-E-N-T R-E-G-U-L-A-T-I-O-N* (see European Union reverse-engineering rights for proof).
  
  Your whole so-called "argument" is based on finding power where there is none.
  
  It's meaningless to project anything from trivial case that when a company has a drafting error, they'll change it, to when they deliberately and intentionally do want to take away customer's legal rights. In fact, your "happy medium" is joke, literally - if a company makes a copying error, they'll fix it if people complain, and if a company wants to take away legal rights, they'll ignore people who complain, so each side sometimes wins and sometimes loses ....
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  LarsG

  10 months ago

  I'd have to agree with Seth here.
  
  "If this incident demonstrates anything, it’s that there are significant “market forces” at work to restrain companies from writing agreements & policies that allow them to screw consumers."
  
  It demonstrates no such thing. This only demonstrates that Google will fix a clerical error if the blogosphere makes a stink about it, it is the "market force" equivalent of kicking in a door that Google never intended to close in the first place.
  
  If you want to demonstrate the market force of the blogosphere, you need to find a case where a company really wanted to put something nasty in an eula but was stopped by "the market".
  
  Choice-of-court, no class-action, no reverse engineering, signing over copyright, warranty disclaimers and limited liability.. There are lots of examples of eulas containing what most people would consider unconscionable, while examples of "the market" / blogosphere forcing companies to remove these terms from eulas are rather scarse.
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  Mehan Jayasuriya

  10 months ago

  Berin, I feel like you might have misunderstood part of my post--or perhaps you were reading into it in a manner that I never intended. Note that nowhere in my post do I advocate the use of any sort of legislation or suggest that an army of privacy "bureaucrats" is the solution to this problem. Yes, end-users should read EULAs because, as we've seen, the unfortunate reality is that some EULAs (whether intentionally or unintentionally) require users to relinquish significant rights to their IP. However, the onus should really be on companies to solve this problem--and here's where I agree with you--and market forces can play a large part in incentivizing this. If Google truly wants to "do no evil" and endear itself to users, it will take a leadership role here and make sure that the terms and conditions of its software are presented to end-users in as clear a manner as possible, so as to avoid another PR fiasco like this one. While you're right to note that the blogosphere and market pressures discovered and eliminated this problem quickly, we can only hope that in the future, the EULAs attached to less high-profile pieces of software receive the same level of scrutiny.
  
  - mehan
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  Berin Szoka

  10 months ago

  Thanks, Mehan. I apologize if you felt that I was picking on you. Yes, to be fair, you weren't calling for government intervention here--but I didn't accuse of you of that.
  
  I merely pointed out--quite fairly, I think--the irony that you seemed to recognize what most of your colleagues at Public Knowledge don't: that market forces do do check corporate behavior even if only a tiny percentage of users actually read EULAs. Public Knowledge has never been shy about advocating for regulation.
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• 

  film fan

  9 months ago

  there are so many advantages and features with Chrome, such as it's speed, for example; now if only they would take care it's quirky cookie management...
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