ISSUE 18.19.F • 2021-05-24

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LEGAL BRIEF

By Max Stul Oppenheimer, Esq.

Any time you install new software or a new service, you are faced with a seemingly simple task: checking a box confirming that you agree to the company’s terms of service.

If you’ve followed the associated link, chances are you’ve encountered 20 or 30 (or 40) pages of pseudo-English. Using the ubiquitous Microsoft Services Agreement as an example, here’s what you are typically agreeing to. For simplicity, we’ll stick with basic U.S. accounts. Most specific products and some special types of account (for example, accounts for minors, education accounts, and organizational accounts) have additional rules. Other rules apply in other countries. Your mileage may vary.

There are provisions that you expect: you provide your credit card number; Microsoft periodically charges you what it thinks is fair; and in return, Microsoft supplies your computer with software that lets you browse, write, calculate, store files, watch videos, and the like. (More accurately, Microsoft “strives” to do so — see below.)

The agreement specifically says that you can’t provide false, inaccurate, or misleading information when signing up for your Microsoft account. So when you check the box that says you have read and understood the agreement, it had better be true. If not, you’re already in default.

With impressive modesty, Microsoft calls its ten basic rules the “Code of Conduct” — but we know what it was really thinking. Here’s the Code:

Your privacy is important to Microsoft, so much so that it created a separate Privacy Statement for your convenience. Here’s the gist of it. First, did Microsoft mention that your privacy is important to it? Yes, and that’s why it wants you to know that it uses cookies and collects data directly from your interactions with its products — and from third parties. It’s for your own good. It’s to provide you with “rich, interactive experiences.” And also to help Microsoft improve its products, make personalized recommendations, and target advertising. Oh, and “for other legitimate purposes.”

But don’t worry. Microsoft keeps your information private, except with your consent or to protect lives. Or to share with affiliates, subsidiaries, and vendors working on its behalf. Or if required by law. Or to protect Microsoft’s rights and property.

If you’re concerned about that, you may find it reassuring that Microsoft adheres to the principles of the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks, which you can learn about from the U.S. Department of Commerce by going to www.privacyshield.gov. Or you can send questions to Microsoft’s Privacy Protection Officer.

If you’re still worried, you can decline to provide personal information. No problem. The software just won’t be personalized. Or maybe won’t work. No hard feelings. Unless your access is through your employer or school or the like. In that case, the organization can control your privacy settings and access your data. But you trust your employer, don’t you?

— Unless something goes wrong, in which case it’s entirely yours.

One of the things Microsoft’s services let you do is receive, store, and share material. Microsoft doesn’t claim ownership! (Except, of course, the right to use it, consistent with your privacy. And to the extent necessary to provide the services to you — and others. And to protect you — and the services. And to improve Microsoft products and services.) But Microsoft wants you to know that if you do share anything, others “may be able to, on a worldwide basis, use, save, record, reproduce, broadcast, transmit, share and display your content without compensating you.” Because not everyone is as respectful of your rights as Microsoft is. Despite the Eighth Commandment.

However, if your content causes any problems, they’re your problems. Because you represent and warrant that you have all the rights necessary to do whatever you did and you didn’t “violate any law or rights of others.” And anything that happens in your account is your responsibility, even if you aren’t the one who did it.

So far, other than “striving” to provide services, we haven’t encountered much in the way of commitment from Microsoft. In fact (and this is in all caps and bold in the agreement, so it must be important), it

“… makes no warranties, express or implied, guarantees or conditions with respect to your use of the services. You understand that use of the services is at your own risk and that we provide the services on an ‘as is’ basis ‘with all faults’ and ‘as available.'”

And if saying “we may or may not provide what you expect” three times using three different phrases isn’t clear enough, the agreement goes on to say

“You bear the entire risk of using the services. Microsoft doesn’t guarantee the accuracy or timeliness of the services.”

Microsoft says it a few more times in different ways, but you get the idea.

Not much can go wrong, at least as the term “wrong” is defined by the agreement. Recall that Microsoft is going to “strive” to provide services, not necessarily actually provide them. But if something does go wrong, your options are limited.

First, don’t try to fix it — you don’t have the right to “disassemble, decompile, decrypt, hack, emulate, exploit, or reverse engineer.” (If you thought that paying for the product gave you the right to “exploit” it, you were wrong.)

If something is somehow Microsoft’s fault, under the Limitation of Liability section you agree not to ask for more than “your Services fee for the month during which the loss or breach occurred (or up to $10.00 if the Services are free).” To try to get your refund, you can either go to your local small claims court if you qualify, or go to arbitration under the rules of the American Arbitration Association and the Federal Arbitration Act. If you were absent the day those rules were covered in school, you can find them at www.adr.org. Look for the section on “commercial arbitration” rules.

The only exception is if the dispute involves intellectual property, in which case you (or Microsoft) can go to court. You can check out kingcounty.gov/about/news.aspx for exciting things to do while you’re in King County, Washington, for the trial.

You may find some of the terms troubling. If so, don’t worry. Microsoft reserves the right to change them at any time. But if they do, they’ll let you know. And if you don’t like the new terms, you can just stop using the software or services. Your computer will make an attractive paperweight, and you didn’t really need access to all that data you stored, did you?

There is some question as to the extent to which one-sided “click to accept” agreements can be enforced. On the off chance that they are enforceable, though, by reading this sentence you agree to wash and wax my car. Email me to select a convenient time.

Max Stul Oppenheimer is a tenured full professor at the University of Baltimore School of Law, where he teaches business and intellectual property law. He is a registered patent attorney licensed to practice law in Maryland and D.C. Any opinions expressed in this article are his and are not intended as legal advice.

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