Terms of Service, User Agreements, End User License Agreements, all those documents we are expected to read through and agree for every website we visit or app we open… but we all know we don’t read them. Even if we wished to engage in proper due diligence, reading through every agreement that applies to every service we use, we would never be able to make it through the day.
User agreements can stop innumerable issues before they even get started and provide business owners confidence by reducing concerns about how some aberrant user may misuse their product or service and expose the business to unforeseen liability. In that spirit, many user agreements tend to pile on any remotely relevant waiver or disclaimer in an attempt to have total control over any potential problem for a party to come after the business, whether their fault or not.
Can you blame them? They have all the leverage. You either accept the terms or do not use the service. No user has much of a chance of striking or modifying even a single clause of the user agreement unless, at best, by going far out of their way to contact the business’s legal department in writing so that they can request mercy and opt-out.
Though rather authoritarian, we rarely give a second thought to subjecting ourselves to whatever may be in those terms, figuring someone way smarter than us has figured out the tough parts and if something actually goes wrong, customer service or the legal system can deal with it. Nearly every user agreement seemingly boils down to, “we do what we what, take it or leave it.”
However, sometimes users really will read through or find out about the implications of a user agreement and decide they would rather “leave it.” A recent example of this happening was with the event hosting platform Eventbrite. Their nearly 10,000 word merchant agreement included an entire section titled, “Permissions You Grant us to Film and Record Your Events.” This section contained clauses, including:
- users “grant permission to Eventbrite and its agents to enter onto and remain on the premises … with personnel and equipment for the purpose of photographing and recording the Premises.”
- Eventbrite “will own all rights of every nature whatsoever in and to all films and photographs taken and recordings made hereunder (the “Recordings”), including without limitation of all copyrights.”
- Eventbrite claims “the exclusive right to use and exploit the Recordings in any manner, in any medium or context now known or hereafter developed.”
- “you, on behalf of yourself and the Subjects, irrevocably waive any right to inspect or approve the Recordings or any manner in which they are used.”
- Eventbrite has the right to use “the names and trademarks of you, the Premises, the Events documented” by Eventbrite’s film crew
- “You are responsible for obtaining, at your own cost, all third party permissions, clearances, and licenses necessary to secure Eventbrite the permissions and rights described above, and you represent that you have done so”
- “Further, you, on behalf of yourself and the Subjects, release Eventbrite and Eventbrite’s assigns, licensees and successors from any claims that may arise regarding use of the Recordings, including, without limitation, any claims of defamation, invasion of privacy, or infringement of rights of likeness, publicity or copyright.”
So let’s sum up what Eventbrite was making all their event hosts agree to:
- We can show up to and stick around for any event we want
- We can record whatever we want at your event
- Only we can use, own, or have input about the recordings
- In fact, you explicitly give up any right to use or even see these recordings
- If we need any permission related to making a recording, then it’s your responsibility to deal with that
- And it’s your fault if we get in trouble for showing up and using these recordings we made.
No one other than Eventbrite’s directors or legal department truly knows what their goals for crafting terms like this might be but I would take a guess that they likely did not have any concrete plans to show up at any random community event, make a big production, and then stick the organizers with the bill if anything goes wrong… but maybe they thought some cool event would be nice to use for marketing and might as well protect themselves if the opportunity comes.
Unfortunately for Eventbrite, what they thought was guarding against potential issues in the future ended up causing actual problems in their present. After word spread online about these provisions, Twitter got to work disseminating outrage. Eventbrite has since issued a public statement and altered their user agreement. In the end, having a document designed to prevent issues instead was the source of a PR dust up. Smartly, Eventbrite jumped on this issue pretty quick because excessively one-sided language in a contract can open up a company to a myriad of legal issues later, including the entire agreement becoming void or voidable (which we should probably discuss in a later post).
Some lessons worth learning from Eventbrite’s mistake:
- User agreements are an essential part of many businesses but the mere presence of such an agreement is not enough
- Crafting a user agreement involves a balancing of rights. Just because you can add more legalese to protect yourself does not mean you should. There is such a thing as too much protection that can put your company at risk.
- Even without litigation, reckless self-interest can make the public doubt your company’s integrity, which is all too easy to lose and tough to regain
- No one wants to reinvent the wheel and especially for small businesses without extensive resources, we learn to take from what the big kids do and assume if they are fine then it must be for us too. However, they are just as infallible as the rest of us.
- Forms, templates, and general practices can be immensely helpful, but each business and each agreement are unique, so be mindful of whether language in an agreement actually applies or provides greater benefit to your situation.
If you think your business may have some work to do on creating or editing a user agreement, Van Gorp Legal Services would be happy to collaborate.