Thursday, February 2, 2012

Laziness and Legalese? ToS Temperments

There's a trend growing in the video gaming and social media worlds for Terms of Service (ToS) to have increasingly complicated agreement language, and to increasingly take away legal options for end users/customers when a dispute arises. Most glaringly, Facebook, Sony (PS3) and Microsoft (Xbox 360) have implemented contentious new ToS that chip away the consumers' ability to manage their own information (i.e., protect their details and online habits from being shared with third parties) or join class-action lawsuits in any disputes (it's more nuanced than that, but that's a whole other story). 

In the world of library resources (esp. database and e-book vendors), I fear there is a parallel trend forming. As the person at my library who is responsible for renewing or acquiring electronic resources (among many other responsibilities), I've noticed an increased ramping up of complex and increasingly restrictive ToS agreements (and this is not just restricted to e-book vendors).  This is partially due to the increasingly complex nature of the networked systems that these vendors provide, and the continuing erosion of end-user fair use rights in online environments. From the corporate perspective (i.e., maximizing profits and minimizing risk) this makes perfect sense. What doesn't make sense, at least on the surface, is the end user perspective. Why do we as consumers, and as librarians, accept this state of affairs? Why haven't we risen up in arms to make these companies deal with us fairly and transparently? Many efforts have arisen, and some have even succeeded in making change, but few, if any, have been able to change the ground rules. And these ground rules put end users at a huge disadvantage.

I think there are a couple of factors at work here:
via Flickr CC, by Hubspot 

  • Laziness: none of us wants to have to read through the loads of legalese that make up most ToS and other such documents and contracts. But we do want to get at the content the ToS relates to. So we skip through the text without reading it and accept the terms since there doesn't appear to be any immediate, catastrophic consequences for us. 
  • Our users need these resources, period.  And because they don't usually have to directly pay for them, users (and those who write our paychecks) don't usually want to hear about these issues that could complicate the acquisition process.
  • Most libraries don't have a contract lawyer or even someone with the know-how or dedicated work time to dispute and negotiate legal terms. 
Resource vendors (as well as social media and gaming companies) know all this and promote and configure their services and contract language and promotional efforts to take advantage of it. One example: many library databases now contain a mechanism aimed at faculty and student end users to "request" that their library purchase specific content (guilt marketing?). They also actively create promotional "bargains" that lock subscribing institutions into multi-year contracts and that have very short time frames for libraries to take advantage of them. None of these practices are necessarily nefarious in and of themselves, nor are they restricted to the library world, but they do point out a need for two things:

  1. Contract literacy (ugh, not another literacy! :-) training for librarians: basic skills to navigate and negotiate these terms of service.
  2. Everyone (users and librarians alike) need to become more aware of the potential long-term, "slippery slope" effects these ToS can have on our lives, on the security of our personal information, and on the "ownership" and circulation of knowledge itself. And we need to use our pocketbooks to more effectively negotiate a level playing field in these areas. 
This may be an ideal place for librarians to take the lead. Indeed, many already are!