Forget Clickthrough EULAs; Are There Really Walkby EULAs For NYC Parks?

from the please,-tell-me-this-is-a-joke dept

Boing Boing points us to something that I'm seriously hoping is a joke (please, please, please, someone tell me this is a joke/parody/Photoshop/etc.) -- involving Madison Square Park in NYC, which is supposedly now being managed by HSBC -- and thus (again, I'm hoping this is a joke) the lawyers have decided to put up giant end user license agreements (EULAs) that you supposedly agree to by entering the park:

[Photo: Rod Townsend]
Assuming this does turn out to be fake (please!), what's scary is how unsurprising it would be -- and how many people seem to immediately assume that it is, in fact, true. We're so used to such EULAs in every day life, that seeing something like this just wouldn't strike all that many people as being obviously fake.

Now, if this is actually real, then, things are even worse. It's difficult to believe (by any stretch of the imagination) that such a thing is even remotely legally enforceable. Already there are questions about the legality of "clickthrough" EULAs, and one would have to imagine that the enforceability of a "walkby" EULA is even more in doubt. So, whether or not this is true, fake or a joke... it's a rather depressing sign (literally) of the times.

Update: In the comments, Shawn points out that this is likely associated with HSBC's "Soapbox" ad campaign, which only makes it marginally less ridiculous (but no more enforceable).


Reader Comments (rss)

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    Shawn (profile), Jul 21st, 2009 @ 10:50am

    I am guessing it was/is tied in with their 'Soapbox' ad campaign - http://www.us.hsbc.com/1/2/3/personal/prom/brand?code=OOM0000023&WT.mc_id=HBUS_OOM0000023

    and was not intended to be an agreement for using the park.

    That being said I doubt there is a much they could do to hold people to an "agreement" that is entered into like this.

     

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    Shawn (profile), Jul 21st, 2009 @ 11:03am

    oh I agree it is a 'thing that makes you go hmmm'

    "Keep off the grass" is one thing roman numerals and multiple parenthesis is a horse of a different color.

     

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    yozoo, Jul 21st, 2009 @ 11:44am

    LMAO

    it looks about as legaly binding as most EULAs . . .

     

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    lavi d (profile), Jul 21st, 2009 @ 11:45am

    Hmmmm

    How about if you just mark through the parts you don't like?

    You're allowed to do that with a contract, right?

     

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    Anonymous Coward, Jul 21st, 2009 @ 11:45am

    Simple solution: Amend the contract, and initial your changes.

    It's not vandalism, it's the process of establishing an agreeable contract.

     

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    Justin, Jul 21st, 2009 @ 12:10pm

    what about minors

    How does this work with minors? Since they cannot legally enter into a contract, can they ignore it, not enter the park, be arrested for even thinking of entering? I see if they are with a guardian but what if they are alone.

     

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      Anonymous Coward, Jul 21st, 2009 @ 12:16pm

      Re: what about minors

      My understanding is that minors can enter an agreement, but can not be bound by one -- that is, the minor can choose at any point to walk out of any contract he's entered. IANAL.

       

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    ChurchHatesTucker (profile), Jul 21st, 2009 @ 12:31pm

    Well, hell

    I'm going to just start posting EULAs randomly...

     

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      Natanael L (profile), Jul 22nd, 2009 @ 5:28am

      Re: Well, hell

      1. By reading this or being replied to by me all your rights are transferred to me.
      2. I own the priviligie to interpret this EULA in case something is unclear.
      3. This is unclear.
      4. I've got no responsibilities.

       

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    scote, Jul 21st, 2009 @ 12:34pm

    Yup, seems mostly like a talent liability/talent release. I like how walking by the sign gives them the right to video record you without compensation but prohibits you from video recording.

    However, this "walk-by" ELUA is easily defeated by wearing a t-shirt with a counter release from ReasonableAgreement.org:

    "READ CAREFULLY. By [accepting this material|accepting this payment|accepting this business-card|viewing this t-shirt|reading this sticker|allowing the wearer entry] you agree, on behalf of your employer, to release me from all obligations and waivers arising from any and all NON-NEGOTIATED agreements, licenses, terms-of-service, shrinkwrap, clickwrap, browsewrap, confidentiality, non-disclosure, non-compete and acceptable use policies (”BOGUS AGREEMENTS”) that I have entered into with your employer, its partners, licensors, agents and assigns, in perpetuity, without prejudice to my ongoing rights and privileges. You further represent that you have the authority to release me from any BOGUS AGREEMENTS on behalf of your employer."

     

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    yozoo, Jul 21st, 2009 @ 12:36pm

    sex and contracts

    A EULA is to a contract, as a blow job is to sex. It may make one side feel very good, but unless both parties are satisfied . . . . well you get the idea.

     

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    robin, Jul 21st, 2009 @ 12:42pm

    ski-by eula

    looks really similar to the eula you'll find on the back of any ski ticket you purchase.

     

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    Kilgore Trout, Jul 21st, 2009 @ 1:01pm

    What if you're illiterate?

    Can you be held to a contract that wasn't explained to you, and you may not have even known existed?

     

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    Dez (profile), Jul 21st, 2009 @ 1:10pm

    What if you're blind

    I failed to see anything resembling a speaker nearby for those affected by blindness.

    And on that note... what if I was blinking when I walked by.

    But It was probably for a commercial shot, like what was said above.

     

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    Anonymous Coward, Jul 21st, 2009 @ 1:15pm

    Mandatory xkcd reference: http://xkcd.com/501/

     

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    interval, Jul 21st, 2009 @ 1:19pm

    Mike said the park is being MANAGED by HSBC; presumably its still owned by the people of New York, so they can post a EULA decreeing that anyone who enters the park must be completely nude; its just a worthless sign.

     

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    Dan, Jul 21st, 2009 @ 1:33pm

    Carry your own eula in your pocket next time

    Those days are in the near future - when you meet any one even before introducing themselves, people just exchange eula.

     

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    LostSailor, Jul 21st, 2009 @ 1:56pm

    Corrections...

    The park is not being "managed" by HSBC nor has it been "sold" to them, as the linked article you have one believe. Nor is it likely that this "agreement" has anything to do with using the park. Since they are filming for an ad campaign, it is much more likely that the "agreement" is for using their Soapbox booth, where you are being filmed for said ads.

    This is standard in the entertainment industry and is often seen at film shoots where you might happen to walk into the background of a shot. In this case, it looks to me like a release for using the Soapbox, meaning that it is voluntary (you're not bound by these terms unless you voluntarily walk into their booth and are filmed) and won't get paid if they use you in their commercial.

    Not quite the legal outrage some would like it to be.

     

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      LostSailor (profile), Jul 21st, 2009 @ 1:57pm

      Re: Corrections...

      It would have been better if the linked site actually had more information on the context, rather than implying that the agreement was for use of the park.

       

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      Fatduck (profile), Jul 21st, 2009 @ 3:08pm

      Re: Corrections...

      It also prevents you from seeking legal redress if the film crew accidentally drops a camera on your head, paralyzing you from the neck down for life, whether or not you realized a film shoot was taking place.

      Oh, but it's standard in the entertainment industry.

       

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      Anonymous Coward, Jul 22nd, 2009 @ 10:13am

      Re: Corrections...

      Agreed. Most parts of EULAs are usually enforceable (contrary to what all the non-lawyer commenters on the blog think). There's only 2 big arguments where consumers win in these cases:
      1) the consumer was not informed of the EULA (either a paper tucked/folded in the product box, or at only 3 of the 5 entrances)
      2) a specific term is held unenforceable because of unconscionability or a state consumer protection law (a number of states have passed consumer protection laws that prohibit terms which require mandatory binding arbitration or waive class action lawsuits).

       

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    Anonymous Coward, Jul 21st, 2009 @ 3:19pm

    pifffffff anything held up with zip ties is by law NOT legally binding. Now if they carved it in stone...

     

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    Fatduck (profile), Jul 21st, 2009 @ 3:25pm

    As far as I know, zip ties are perfectly legal to use for binding objects to other objects.

     

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    Fake John McCain Staffer, Jul 21st, 2009 @ 5:12pm

    Getting tired of morning omelettes and getting morning paper treatment!

    This is a great idea. Recently, a neighbor has had lots of trouble keeping the kids off their damned lawn.

    After an incident where taking out a shotgun resulted in an overnight stay at the local detention center, they've been looking for another effective method of crowd control. A Pepperball launcher seems to be the ticket. However, combined with a binding EULA may be a great solution and help him if in court if he gets to use his shiny new Tac700.

    I saw those damned kids walking around earlier today with what looked like a carton of eggs. If anyone has a larger, photo of the EULA, please forward it along. We need to make the sign and stop these damned kids before it's too late.

     

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      Joseph King, Jul 21st, 2009 @ 7:05pm

      Re: Getting tired of morning omelettes and getting morning paper treatment!

      Today's youth are like the guys following the elephant in the parade - they have a lot of sh*t to clean up!

      I feel sorry for them, myself. They have no hope of having as rich or secure of a life as we had growing up. They are inheriting a world decimated by war, debt, increased globalization which affects one's production capability, and legalistic maneuvering.

      EULAs to enter a park? But what would you expect from the Hong Kong Shanghai Bank Corp. (HSBC)

      Not funny even if it is a Joke. God help them!

       

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    Jesse, Jul 21st, 2009 @ 6:35pm

    Is a click-through EULA enforceable if you design a script to install software on your behalf? I mean, in that case, you never considered the contract, which I believe is a requirement.

     

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    pjhenry1216 (profile), Jul 21st, 2009 @ 8:00pm

    EULAs need to be tested in court and hopefully thrown out

    EULAs started off with at least decent intentions. Things along the likes of, "We're not responsible if you hurt yourself with this by not following the rules" etc. They used to just be about covering their asses. Now they're trying to take various rights away. Now they're commanding you to do things. No longer is it just saying "if you use it the wrong way, you're on your own." Its now "if you use it the wrong way, we'll try and sue you." I really wish I was paying closer attention to see where that gradual shift took place and what possibly got it to go forward.

     

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    Thomas Bailey (profile), Jul 22nd, 2009 @ 1:27am

    Don't like risks

    This is similar in effect to a warning on coffee cups that it may be hot. This is in response to someone who burned her lap with coffee and sued. Hospital bills in the USA are very high due to malpractice insurance. In swimming pools that are too shallow for diving, there is painted on the deck "no diving", even though common sense would say the same.

     

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      Anonymous Coward, Jul 22nd, 2009 @ 6:20am

      Re: Don't like risks

      "Hospital bills in the USA are very high due to malpractice insurance"

      spoken by someone who has no idea what they are talking about . . .

       

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    TFP, Jul 22nd, 2009 @ 1:55am

    A simple explanation

    Collectively, the human race has finally succumbed to insanity. The ruling elite, rather than doing their best for the masses, are more interested in feathering the nest for themselves and their own. Special handshakes (or promises of a better economy) ensure you get whatever laws need passing.

    I'm willing to bet the ruling elite are sorry they ever taught the masses to read, which is why education is sliding back into the dark ages and txtspk (newspeak), is considered fine, it's all you need to be a consumer.

     

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    Lawrence D'Oliveiro, Jul 22nd, 2009 @ 2:37am

    Licence, Not A Contract (IANAL)

    It seems to me just as legally enforceable as open-source software licences like the GPL, which have in fact been upheld by courts more than once. Your use of the software is subject to the licence; if you use the software and you don’t accept the licence, then you’re infringing copyright. End of story.

    In the same way, a park licence agreement could be enforced on the basis that, if you don’t accept it and you enter the park, then you’re trespassing. End of story.

     

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      btr1701 (profile), Jul 22nd, 2009 @ 6:49am

      Re: Licence, Not A Contract (IANAL)

      > In the same way, a park licence agreement
      > could be enforced on the basis that, if you
      > don’t accept it and you enter the park, then
      > you’re trespassing. End of story.

      And what if you don't see the sign because you were engaged in conversation with friends as you walked passed it?

      Or you don't speak English?

      Or you're blind?

      Or you're a minor?

      Hardly the legal "end of story" you claim it is.

       

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        Lawrence D'Oliveiro, Jul 24th, 2009 @ 5:56pm

        Re: Licence, Not A Contract (IANAL)

        btr1701 wrote:

        And what if you don't see the sign because you were engaged in conversation with friends as you walked passed it?

        Or you don't speak English?

        Or you're blind?

        Or you're a minor?

        Makes no difference, a trespasser is still a trespasser. You still get to tell them, in no uncertain terms, to fuck off.

        End of story.

         

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    brent (profile), Jul 22nd, 2009 @ 7:42am

    dont these things already exist in places like ski resorts, ice rinks, baseball fields, football fields. dont those all have some sort of sign that says everyone is responsible for themselves and that whoever owns the place cant be responsible for injury? is this really that different?

     

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      btr1701 (profile), Jul 22nd, 2009 @ 12:16pm

      Re: Signs

      > dont those all have some sort of sign that
      > says everyone is responsible for themselves
      > and that whoever owns the place cant be responsible
      > for injury?

      Sure they do, but they're generally meaningless from a legal standpoint and are only there because most people don't know the law and don't know their rights and will be fooled into thinking they have no recourse.

      It's a well-accepted principle of tort law that an individual or a business can't disclaim their own negligence through use of signage or boilerplate language printed on ticket stubs. Unless they have a separate form with the customer's signature on it, indicating full disclosure and acceptance of terms before the contract was executed, the business can't avoid responsibility for any negligence acts it commits.

      Even though the signs are legally meaningless, businesses still use them because most people don't know they're legally meaningless. If a posted sign fools and deters even a quarter of the people with valid claims from pursuing legal remedies, then they're worth their weight in gold.

       

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    Cap'n Jack (profile), Jul 22nd, 2009 @ 12:59pm

    I finally undersand...

    Wow... for the first time, I fully understand why end-user license agreements are completely ridiculous. Seeing a real-world equivalent is both hilarious and depressing.

     

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