You Can’t Vote Out Amazon Web Services: Fighting Internet Contracts One Library At A Time

Legal Issues

from the librarians-take-a-stand dept

For nearly twenty years, I’ve used Google Docs for most of my writing: class notes, personal notes, a novel in progress, research, activism, and my day job. It’s become an essential piece of infrastructure for me, an archive of my life and evolving interests.

In order to sign up for Google Drive, I presumably had to read a Terms of Service agreement provided to me by Google. Every once in a while I’ll get an email telling me that the Terms of Service have changed, which I almost always immediately delete without reading. Even if I tried to read what’s been changed, I’d be faced with a 4,500 word document that contains approximately 43 outbound URLs to Terms of Service for other Google entities, which links me out to others indefinitely, an infinity of terms. Even if I could read the terms and didn’t like them, I’d still be stuck with Google Docs; eventually someone at work would ask me to review a document.

We sign these contracts constantly, a kind of digital decision fatigue that’s overlooked in most conversations about tech law and policy. Whether or not you believe that participation in digital life requires a contract at all, clickthrough and wraparound contracts that contain thousands of words, links, and subsections are disempowering to the public and potentially disastrous when enforced. 

Want to reserve a table at your favorite restaurant? You’re now subject to OpenTable’s arbitration clause. Texting your friends? You’ve granted WhatsApp a worldwide license to reproduce and create derivative works from everything you send or receive. I couldn’t even sign my own divorce paperwork without consenting to Docusign using my agreement in AI training data.

The contracts attached to most digital services are called “contracts of adhesion,” “take it or leave it” contracts where the terms are set by a stronger party and the only way to walk away is if you can choose another service, which you generally cannot in a world where a handful of companies control the majority of commerce and cloud services on the internet. 

Clickthrough contracts of adhesion live in a gray regulatory area, but even though they function as a “mutant form of contract law,” they are generally considered enforceable. Last year, Cathy Gellis wrote on this blog about a particularly egregious case concerning the arbitration clause in a Disney+ agreement. After a woman died of a severe food allergy at one of the parks, Disney argued that they could not sue the company because her husband had signed up for a free trial of Disney+ several years prior.

Lots of scholars point out that laws and constitutions act like contracts of adhesion in certain ways – I live in North Carolina and I vehemently oppose recent transphobic House bills. However, I can, at least in theory, vote those motherfuckers out. I cannot vote out Amazon Web Services or Zoom, which I need for my work. Unlike bad legislation, I can’t organize my neighbors to throw them out either.

Binding contractual agreements for every single digital service has become a tool companies exploit at the expense of consumer rights that makes us even less safe on the internet, and it’s pure enshittification. Even if negotiability is impractical, contracts should be short, human readable, and consumer friendly. Using the internet shouldn’t force me to waive my right to a class action lawsuit, my ability to own a book, or to my own palm print.

How are we supposed to build democracy as an informed electorate when we have, in the words of Brendan Ballou, “lost access to our own justice system” through the nearly universal forced arbitration provisions in terms of service? How am I supposed to participate fully in a market economy when basically every contract I sign online creates an “accountability sink” where no one is responsible for a company’s failings except the system itself? How can I learn to exercise informed consent when I’m constantly clicking through terms of service that I both can’t read or actually consent to? How can I participate in society if everyone is using a tool but I object to its terms of use?

Combatting terms of service and licensing abuses takes a proactive and practical approach. Under the Biden administration, the FTC began to regulate these contracts, but now the regulatory locus has shifted back to the consumer. Even though the government is not coming to save us, we don’t have to live out the rest of our lives as digital peons in a rentier economy.

My organization Library Futures has launched a program to provide counsel in contract negotiation and terms setting for libraries – a DIY contract center in the public interest. No other institution is buying digital content at the same rate as libraries, where one private equity owned digital vendor (Overdrive) provides almost 97% of all ebooks to public library systems. Every single one of those contracts, terms of service agreements, and licensing deals have to run through a process at either the local or or the institutional level. This often happens without a full review of terms and no access to a lawyer. Publishers and library vendors can’t afford to lose this business; through a flex in monopsony power that builds coalitions on both the institutional and collective level, we believe that libraries can force major publishers to the table, rewrite the digital terms of service, take back their collections from the control of large corporations, and reject language that’s unfavorable to the public.

Libraries have always been opposed to onerous terms of service, but like most of us, they’ve felt powerless in the face of corporate overreach. We’re not the first to fight the power in libraryland – the seminal privacy case Doe v Gonzales concerned whether librarians had to violate their own privacy policy and turn over computer records to the government. In 2020, librarians staged a boycott of Macmillan over their shifting and consumer unfriendly digital terms – and won.

In identifying a locus of power with significant buying power and a mandate to serve the public, we’re fighting contractual overreach one library at a time, publishing our results and providing organized, compassionate guidance so institutions and individuals can take back their right to transparency, a fair trial, privacy, and their right to own the content they buy. We’ve been signing away our rights one click at a time at the expense of democracy, civil rights, informed consent, and the well being of a digital generation. If we want to take them back, libraries are the most powerful place we can start.

Jennie Rose Halperin is the Executive Director of Library Futures

Filed Under: click through, clickwrap, contract negotiations, contracts, libraries, terms of service