“A Fine Whine” is an occasional department about the hassles of modern life. What follows is an e-mail exchange about subscribing to Slate. Mark Lundgren lives in Houston. Steve Tapia is a Microsoft corporate attorney.
From: Mark LundgrenSent: Friday, February 20, 1998 7:32 AMTo: email@example.com
I started to subscribe to SLATE, but changed my mind once I hit the agreement. I don’t have time to consult a lawyer about a subscription. I’ll pass.
From: Seth Stevenson Sent: Friday, February 20, 1998 7:56 AMTo: Rogers Weed; Joel Oleson
lots of people have been griping about the big brother-ish language of the subscription agreement
From: Steve Tapia Sent: Monday, February 23, 1998 3:07 PM To: Mark Lundgren
I hope I may ask for a moment of your time.
I am Slate’s lawyer and was responsible for drafting the agreement that led to your note. Unfortunately, we are now in a day and age where virtually any advertising, marketing or commerce requires some legalities for even the simplest transactions (you can thank government regulation, consumer groups and plaintiff’s lawyers for some of that). In conjunction with the Slate staff, I tried very hard to write something that was sensitive to consumers and yet handled the business realities and legal needs of doing commerce on the Internet. And, to tell you the truth, I thought we’d done a much better job of it than many of our competitors (I don’t know whether you have seen the agreements for the Wall Street Journal Interactive or Netscape, or if you have an account with AOL or CompuServe, but their agreements are substantially longer and more complex). So, I’d be particularly interested in hearing from you what parts of the agreement you found objectionable … or is it the concept of an agreement in any form that led to your note?
I look forward to hearing from you.
–Steve Tapia, Corporate Attorney, Microsoft Corporation
From: Mark Lundgren Sent: Tuesday, February 24, 1998 9:01 AM To: Steve Tapia
Dear Mr. Tapia:
I have no objection to contracts, I sign them all the time. Nor do I have a particular objection to what I read of your handiwork (although due to a bad experience with a cellular phone company, I am reluctant to grant anyone permission to renew a contract without my explicit concurrence). In fact, from what I read of your contract, my impression was that it reads much better than most I’ve seen, for which I commend you. I am, however, pretty well fed up with being presented with long streams of legal jargon in an ever growing number of situations. I had a spare moment at work last week and thought I could take care of my Slate subscription. When it turned out to require a much longer moment than the one I had I was annoyed. All I wanted was to receive words via e-mail. Why do I get presented with a contract worthy of a software agreement? (In fact, I have software licensing agreements that are much shorter.)
I may sound excessively cranky to you, but understand that my wife and I each have two jobs, we have two small children and are helping to care for two others. We are constantly pressed for time. I find myself less willing to spend time doing things that seem needlessly complicated. If every internet transaction is going to be burdened by a cumbersome legal agreement, I don’t see it having any advantage over catalog shopping (which is how I do much of my buying), and I won’t use it much. I suspect the same is true for other busy people.
Perhaps what internet commerce needs is more government regulation. If aspects of internet commerce are standardized by well understood government rules then they will not have to be thrown in the face of the buyer in every transaction. A Slate subscription might then be only a little more burdensome to complete than a magazine subscription.
From: Steve TapiaSent: Tuesday, February 24, 1998 10:09 AM To: Mark Lundgren
Thank you for taking the time to reply. I appreciate your candor. It was like a nice cold glass of water in the face. Even though we really tried to keep the busy and harried consumer in mind, your comments make me realize that maybe we need to think our approach through yet again. Obviously, if you are making your decision about what to do with your leisure time and money on the basis of the legalese in our or any other agreement, then the tail has started to wag the dog. Sometimes that has to happen unfortunately … but it’s worth looking at again in any event to see if this has to be one of those times.
From: Mark LundgrenSent: Tuesday, February 24, 1998 1:33 PM To: Steve Tapia
Dear Mr. Tapia:
Sorry about adding to your burden with another e-mail.
A colleague of mine who hopes to start his own internet business had a thought I want to pass on to you. He thinks a brief, non-legalese explanation of your concerns would help your readers understand what you are trying to protect yourself from and why a Slate subscription is more complicated than a magazine subscription. He made two other points:
1) What I meant to say in my last missive is that the problem is not with your agreement BY ITSELF but with the proliferation of such agreements.
2) I could have finished my Slate subscription by now if I hadn’t spent so much time bitching at you about it.
From: Steve TapiaSent: Tuesday, February 24, 1998 2:09 PM To: Mark Lundgren
Yeah … but this is more fun, right
I understand the problem with the proliferation of legal agreements … but I am sorry to say that it’s only going to get worse, not better. I really do hate many of the things lawyers have inflicted on the world. So, I’m not just “walking the consumer walk” when I say: the overly litigious society we live in makes it a pipe dream to hope that we will have product labels without qualifications or warning labels or business transactions without disclaimers and such. I really wish it was a passing phase, but when you have things like McDonald’s being sued for inadequate warnings on their coffee (gee, coffee’s hot?!?), even the most well intended businesses get stuck with layers and layers of legalese in an attempt to insulate themselves from big judgments.
As for why this is different than a magazine subscription? Good question. Let me point out the key differences that I see:
1. Some of the more complex provisions in the agreement have to do with what we are doing with your personal information. Print magazines have always done lots of third party marketing with your subscription data, but somehow there’s no cry for them to make the kind of disclosures and disclaimers that we in the online industry are being driven to make (by the Federal Trade Commission and consumer groups in particular). In this one area, we are actually being more upfront with the consumer than magazines are.
2. The interactive parts of Slate–mostly the Fray–allow you to have your words and thoughts instantaneously distributed to the world through our information pipe. Without much chance for us to edit or review your words (as we would in a print magazine’s letters to the editor section), the specter of defamation liability becomes large. In fact, the vast majority of the lawsuits we have seen in the online world are defamation suits for what a user posted on a bulletin board or online service. This legal reality drives a large part of the more complex legalese.
3. You said that you were familiar with software licenses. Then I am sure you will recognize some of the disclaimer language in our agreement as the same language you find in an End User License for a desktop application (especially the language that says we aren’t liable for what happens to your computer if you use our product and something bad happens). Don’t forget … “Slate” is not just printed words … it’s code and ActiveX controls and a whole bunch of other stuff that take control of parts of your computer. I know of no analogue in the print world.
4. Doing virtually instantaneous monetary transactions over the Internet raises a huge potential for fraud. That’s not true when you mail in a magazine subscription order and the clearing house has all the time in the world to let your check clear or check out your credit card account. That’s even more legalese.
There are more, but those are the key differences that come to mind.
Thanks for being so thoughtful in your e-mails. I have enjoyed the chance to be challenged and trade perspectives. It’s been very educational for me. I hope it has for you too.