A couple of funny stories that came out this week illustrate the extent of the problem with the End-User Licensing Agreements that we're constantly being asked to "agree" to every time we use a new piece of software. First, an Italian site noticed that the EULA for Apple's newly-released version of Safari for Windows requires that "The software allows you to install and use one copy of the Apple Software on a single Apple-labeled computer at a time." Obviously, most Windows users do not have an "Apple-labeled computer," which would suggest that they'd be violating Apple's license (and therefore infringing copyright) if they installed Safari at all. That would be ridiculous, and sure enough, a quick call to Apple confirmed that this was an oversight on Apple's part, and that you can, in fact, install Safari on a non-Apple Windows machine. The same day the Apple story was making the rounds, Chris Soghoian noticed that if read literally, Google's terms of service would prohibit anyone under 18 from using any of Google's websites. It reads "You may not use the Services... if you are not of legal age to form a binding contract with Google." As Chris points out, in most states you have to be 18 to form a binding contract, suggesting that those under 18 are prohibited from using the service. He notes that a lot of other companies, including Facebook, MySpace, and Microsoft, have friendlier terms, either limiting the services to those 13 and over or saying nothing about age at all.
This is another good reason that we should be skeptical about the idea that these kinds of perfunctory EULAs and TOSs should be treated exactly the same way as ordinary contracts signed by two human beings. When it's in their interests, companies try to argue that these kinds of contracts should be strictly enforced, for example claiming that it trumps the first sale doctrine. Yet it's been clear for a long time that users almost never read these agreements. Now it seems that even the lawyers nominally in charge of writing them don't review them very carefully. If neither party to these "contracts" takes them seriously, might that suggest that the courts should be skeptical of considering them to be contracts at all?