This is the final episode of our 10 part series on End User License Agreements or EULAs for short. I'm Mark Miller, Executive Producer and host of "That's in My EULA??" When Joel MacMull and I thought about this series, our assumption was that we'd reach a point where the agreements we were analyzing would start to look alike, and that's pretty much what's happened.

What we're going to do in this episode is to do a quick review and go over the highlights of the series, the highs and lows, to give you some quick insights into what we've discovered.

At the end of the episode, I'll go over what we're planning for Season Two and how you can become involved. Stay with us. 

1. AI and Chat Engines
2. TikTok
3. YouTube
4. Credit Reporting Agencies
5. Slack
6. Zoom
7. Amazon
8. Canva
9. Charles Schwab
10. ChatGPT takes Steven Schwartz to Court

Available on all your favorite podcast platforms: https://thats-in-my-eula.captivate.fm/listen

 That's a wrap for Season One of "That's in my EULA??" When we come back in Season Two, Joel and I will be looking at legal cases currently being considered or actually in session in the court system. From what we're seeing, AI and GPT are going to get some major exposure in the coming months, and we'll be on top of that.

We'll also be looking for ideas from you. You can leave us a note and suggestions on our LinkedIn page at Sourced Network Productions. Thanks for staying with us through the first season. We'll see you in Season Two.

The transcript and resources for this episode are available at WhatsInMyEULA.com.

There was a historical case presented in federal court in New York City last week. Lawyer Steven Schwartz was hauled into court for using unresearched, unsubstantiated output from ChatGPT to defend a client. For those of us following the case, it's a chance to get a firsthand look at a judge who will be setting precedents around the country, if not the world, when it comes to using AI output in a courtroom.

Joel MacMull has presented before Judge Castel, who is presiding over the case, a few times. So he and I planned on meeting in the courtroom that day. Yeah, life got in the way. Instead of few days after the court date we got on a call with our friend and technologist, Shannon Leitz, to discuss the legal aspects of the case, as well as the future of using this type of technology to do research.

How can we trust output from an AI engine? When is it appropriate to use an AI engine to do professional research? Should Schwartz have known better or do we believe him when he says he had no idea that ChatGPT could just make things up?

Should we have sympathy, empathy, or disdain for what he did. Joel, Shannon, and I will give you our opinions and insights, but then it's up to you to decide. What are the legitimate uses of AI in its current state? Is it an experiment? Is it really changing the course of history? Does it have a legitimate use on the open unfiltered market?

Like I said, you decide. But get the facts first. That's what we're about to do. Stay with us.

You can subscribe to have access to all episodes of "That's in my EULA??" on your favorite audio streaming platform, or go directly to the website at https://whatsinmyeula.com/. All free, all ungated.

From Mark Miller:

As I started looking at the Charles Schwab terms of agreemnt, I started thinking, "This is what I expected." This is a financial institution that has a whole different set of laws that have to be applied to what they're doing. What impressed me though, as I was looking at this is it was relatively clear what I was looking at. There was a lot of it but it was relatively clear what I was looking at.

From lawyer Joel MacMull:

And I think that's important because this is really intended to be consumer friendly, because effectively I think it has to be. We have all these disclaimers, for example, about margin calls and short selling and all of that, because they need to make these disclosures.

One of the provisions in here talks about investment advice. This appears at Subsection 28. And these are the kind of, consumer friendly disclosures I think they have to make. It says "You agree and acknowledge", you being of course the account holder and these terms would apply upon creating a self-directed account under the Schwab brand. It says, "Unless we otherwise agree with you in writing, Schwab will act only as your broker dealer and not as an investment advisor. And your account will be a brokerage account and not an investment advisory account governed by the Investment Advisors Act of 1940."

That's important because what they're saying is we're not an investment advisor. You're creating this account. It's gonna be entirely self-directed.

Mark Miller: You and I have been discussing, will we ever see anything that's not onerous or incomprehensible. This looks like something written by people for people.

Joel MacMull: That's exactly right. We have seen some real dogs over the last two months and this was a pleasant surprise.

And what's really interesting about it, and we're going to hopefully get into this, is that you've got your main terms of use and then one of the hyperlinks, of course is their content license. The content license here, given the nature of the service, it essentially is a design platform is near and dear to my heart because of course it implicates intellectual property, namely matter that would be copyrightable, matter that is licensable, matter that may be amenable to trademarks and they've really done, to their credit, a bang up job to simplify what, even based on the handful of other agreements we've looked at to date, is just a morass of nonsense.

Hat tip to our friends down in Australia.

Mark Miller: The thing that you and I have always looked for, which shows up here is, can you talk to me in language I can understand. One of the things they've done is they've had a little bit of lawyerese in their paragraphs, and then underneath each section is a big blue box that says, this is what we just said.

Joel MacMull: Yeah. Yeah. And I thought that was great. I really did. I thought that was great. It makes it digestible for the layperson. The interesting thing is as I was reading these blue boxes, is what does that mean for the paragraphs above it, and it's overall enforceability. Because while presumably nothing is contradictory, you can appreciate that that which appears in the blue boxes is certainly less fulsom than that which appears above it. And so I wonder if for purpose of enforceability, would there ever be a tension there internally in the document?

Now for as good as the document is, it's not perfect. I thought maybe we would quickly go through both the main agreement and the content license agreement.

Joel MacMull: Our listeners listening with care may say, these guys can't even get on the same page as to what the appropriate Amazon Terms of Service are necessarily that would apply to the average bear, but I would submit to you that in of itself is demonstrative of the larger issue of just how complex and how utterly unconscionable, and frankly idiotic, these various agreements are.

I like to think of myself as at least an average lawyer.

In looking at a document entitled AWS Service Terms that was last updated on May 3rd, 2023, which is, I read it, is intended to apply to both, among other things, Amazon resellers as well as, what I will call purchasers like you and I as consumer purchasers. It is a document that I have my assistant print out that's gotta be at least 50 pages in length.

Mark Miller: Well you're lucky. You're lucky it's only 50 pages.

Joel MacMull: It's not numbered. I mean it's not numbered. And of course, that's by design.

Mark Miller: I have to say though, Joel, this is the reason you and I started this show. We've been playing with other ones for the last six episodes. But this one goes to the heart of what the major complaint is.

Joel MacMull: ...and I think you're absolutely right. When I wanted to take a look at the Amazon terms of service, I was interested, and admittedly naive, in thinking about what it would entail.

When someone says Amazon to me, they are the world's largest online retailer, and I foolishly think that's the entirety of the scope of their services.

But back to this agreement, which I'm referencing, which contains, by the way, no more than 96 subsections, okay? 96 subsections. I forgot that the breadth of Amazon's touch these days is far broader than just online. It's infinite. And what makes this I think so silly is that there are parts of this agreement and offshoots when I dug in a little bit to the hyperlinks that I don't even understand what they're talking about.

It is rare, that I will give a hat tip to good lawyering. But there's a lot of great things going on in this paragraph, and it's sub paragraphs, that I certainly must, in the interest of full candor, acknowledge is a pretty smart, impressive series of provisions. Now, that doesn't mean that they're not particularly onerous, to someone who's adverse to Zoom, but if you're Zoom, you've got a pretty impressive tool here for reasons we can certainly discuss.

In looking at the Zoom agreement, I actually just focused on the five or six paragraphs that are specified in the top half of the page.

I did that because I suspected that this effective date, which of course was just last week, March 31st, 2023, to the extent that amendments were made, they were, and I guarantee you they were because I suspect Zoom was concentrating on those sections. Given that my expectation is these are the freshest sections, I wanted to walk through, perhaps why Zoom has taken the action it has and in particular as it relates to, I know a provision that's near and dear to your heart, as well as mine, the arbitration provision in paragraph 27.

We're choosing to talk about Slack because virtually every technology company is using Slack. It's ubiquitous. It's almost like de facto standard for communication.

One of the things that I found, and maybe you appreciated this too, is when I went through the documentation, just pages and pages and addendums, whatever. But it's not legalese. It's not legal jargon, which I very much appreciate it.

From lawyer Joel MacMull:

Yeah. All right. So, so, so First of all, let's talk about the manner in which it's drafted. To their credit, a lot of it is very much in plain speak. I mean, you know, Sometimes when you're going to talk about the exclusive jurisdiction in which a litigation can arise, it's going to get a little legalize. That's just the nature of the business. Mm-hmm. Um,

But to its credit, it's very much written in plain speak, and I think it's digestible. Would like to hope it's digestible. For everyone to, to, to, to, to sort of user agreements we've looked at, It suffers from, I think, Uh, and, and, and, and I go back to what I think I said very early on, of you know, this kind of um, "incorporated by reference herein" and then those incorporations then leading back to no less than I counted five separate agreements.

From lawyer Joel MacMull:

These three entities - Experian, Transunion, Equifax - whether we like it or not, sit on a lot of personal information of ours.

I don't know, frankly, the authority by which they're able to collect that information. We certainly know that they sell that information, but there's no way for us short of falling off the grid in a Ted Kazinski style fashion, to not essentially have our data at least be picked up by these companies.

From Mark Miller:

A lot of the times when we dive into this, there's obfuscation because there's so many documents When I looked at this each of those had 10 or 15 different documents that they were linking to. Is there a real expectation that real users are going to read this stuff?

That's what we're going to explore in this episode of "That's in my EULA?? We were surprised at what we found. We think you might be too.

Get the full transcript at : whatsinmyeula.com

Mark Miller (MM)

 I tried to read through the terms of agreement for YouTube. There's obfuscation going on here on purpose.

Joel MacMull (JM)

I agree with you wholeheartedly. First of all, let's talk about where the terms and conditions appear on the YouTube page, which I would submit to you, is not for nothing. If you go to youtube.com and you look at it, you've got all of these tiles and you've got all of these various links on the left hand side, shorts, library, your movies, and tv.

You've gotta scroll all the way to the bottom in which they have terms and conditions hyperlinked within a whole bunch of other hyperlinked one word phrases such About, Press, Advertise, Developers, Terms, as well as a plug for NFL Sunday ticket, which if you're an NFL fan, I understand as a YouTube subscriber, you'll be eligible to enroll in later this spring.

MM

Let me jump in, Joel, because I just did what you just said and I didn't realize I had to pop the menu open. So as I was looking for the terms of agreement on the YouTube page itself, it's an infinite scroll. You can never get to the bottom of the page, and that's where most of that stuff usually is, is in a footer.

That's right. So what you just said is you had to expand the menu at the top of the page on the left hand side, and that's when I saw it at the bottom finally.

When I first came up with the idea to do a show on Terms of Agreement, TikTok was the first that came to mind. I called Joel MacMull immediately. He just laughed and agreed it had the great makings for an expose as to what’s in the thing. 

Now, with all the noise and foot stomping in Congress, it seems a natural time to release this episode of “That’s in my EULA??”. If you’ve got TikTok on your phone, and a couple 100 million of you do, you’ll want to hear what Joel found in his research.

From Joel: “The first, and this is in no particular order, but this is at least how my brain processed them... the first is obviously how draconian and or one sided these terms are.”

If that doesn’t pique your interest, then this show’s not for you. But I bet you’re ears perked up, didn’t they? Stay with us and find out how draconian TikTok terms of service really is.