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Post-purchase EULA modification
Post-purchase End User Licence Agreement (EULA) modification, colloquially referred to as the ‘EULA Roofie’, is an increasingly common practice whereby the terms that govern a customer’s use of a product are modified after the customer’s purchase of the product. Such changes are frequently impossible for a customer to reject without losing access to the product they paid for, or without losing substantial functionality. In some cases, no ‘reject’ option is given, other than to power off the product, and never use it again, such as in the case of the Roku smart TV [cit needed].
Such a modification can work in the consumer’s favour (such as in the case of Valve[citation needed] changing the terms of the steam subscriber agreement to remove forced arbitration), or simply serve to clarify or correct specific terms in a way which is reasonable, and does not negatively affect the consumer.
A problem exists, however, when such a change is made in order to reduce the rights, or increase the obligations, of the consumer.
The ‘EULA Roofie’[edit | edit source]
The use of the colloquial term ‘EULA Roofie’ stems from comparisons between the practice of post-purchase EULA modification, and the practice of spiking a drink – where consent is sought and given for the consumption of the drink, but not for the consumption of whatever it has been spiked with.
Responses to, and defences used for, Post-purchase EULA modification[edit | edit source]
Many arguments intended to defend post-purchase EULA modification cite the legitimate reasons for such an action, as described above. They argue that it would not be practical to maintain a long-running service without being able to occasionally change or clarify their terms. Others will attempt to defend their actions by deflecting from the issue, such as in [this] case, where Repairshopr defended their decision to alter their EULA to allow them to collect user interaction logs for AI training by simply pretending that they would never do such a thing, and acting as if there were no substantial changes to their EULA which would allow them to collect and process data in that way (of course, this was done without explicitly stating that no such change had occurred).
A common argument against the importance of this issue is that any user still needs to accept the changes [citation needed: find an example of where someone made this argument] in order to be bound by the new EULA, and that the previous EULA may have included language stating that the company may alter the terms of the EULA after purchase. This argument, however, fails to account for the situation the user will typically find themselves in. In most cases, users are given a simple ‘tickbox’, without proper summarisation of the changes contained in the EULA update. If the user does not accept this change, they will be unable to use the product which they purchased. As is common knowledge, 99% of users in such a situation will simply accept the EULA changes in order to regain access to their product, as they have neither the inclination nor the mental bandwidth necessary to read through a lengthy contract every time such an update is issued.
In extreme cases, companies may take a lack of action as consent, as was the case in this incident [link to that sock company thing], where non-response to an email was considered by the company to be appropriate consent for a change to the EULA.
Particularly insidious examples of this practice include Adobe’s EULA changes, which required users to accept the use of their art and media for the training of AI, or face the loss of access to Adobe products [citation needed]. It was felt by a number of prominent creative professionals that this amounted to a substantial changing of the ‘deal’ they were offered at the time of purchase, effectively amounting to the theft of their creative efforts. Many creative professionals are deeply entrenched in the Adobe ecosystem, and would suffer substantial financial harm if they were to stop using Adobe products, as the time taken to learn alternative tools would directly correlate to lost work and payment. Combined with Adobe’s practice of charging a premium for the privilege of early subscription cancellation, users who did not want their art used for AI training were unethically forced into choosing between their livelihood and their integrity.
Due to the nature of the agreements, legal professionals[who?] have argued that many cases of such contract changes are unenforceable, when the users have not been properly informed of contractual changes, and those changes are beyond what would be expected in a typical contract of this type[citation/verification needed]. However the reality for the average user is that they cannot realistically challenge such a change due to the costs involved with litigation, and instead must accept the poisoned choice they are offered: suck it up and deal with the new terms, or lose access to a product they paid for.
Legislative action[edit | edit source]
Situations involving post-purchase EULA modification have been taken to court on a number of occasions, including...
Legislative proposals to counteract this trend include...
