Amazon

Mark Miller: 

You and I were going over this document and we each attacked it from a different angle. I was looking at the Conditions of Use document and you were looking at something else. 

Joel MacMull: 

Those of 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. I, 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.

Mark Miller: 

I think our focus today, because of where we go with the show should be on the consumer end of it. I’m not worried about AWS services, which is the, an 800 pound gorilla in all of this. We’re talking about the consumer thing here. 

Joel MacMull: 

That’s where we should focus on it. And not surprisingly, it’s very onerous.

So much so that in the last half hour before we were, before we, we, before we met up for our call, I took a few minutes and I wanted to do some searching and find out to what extent has it been a subject litigation, and not surprisingly, it has. And not surprisingly, those litigations which have raised the issue of the unconscionability of the terms of service are, as we’ve discussed on other shows as well, primarily directed towards the arbitration provision.

That is, to what extent are the claims before the court necessarily the subject of a mandatory arbitration provision? I don’t profess to have. 

Surveyed the landscape in its entirety. But I’ll submit to you that in the, half dozen of cases that I just quickly poked around on, I’d say maybe 80% of them find in favor of Amazon.

There was one case that I saw in which a New York court appeared to be saying that the terms and conditions. Although I want to make clear, Amazon was a defendant, the name defendant, and to whom I believe the court was directing. The comment was to GrubHub. 

But did find that GrubHub, terms of conditions, was found to be unconscionable under New York law.

So I thought that was maybe a sliver of hope for those of us out there. Hoping to, hold these big corporations accountable in a court of law. 

Mark Miller: 

One of the things that I’ve come up with here, and I think it will be useful, is I’m going to spend the next week and I’m actually going to do a flow chart of the hierarchy of the documents that you’re supposed to read.

In order to participate in the Amazon playground, if you want to call it that. 

 As I was doing it and just going down the rabbit hole, I just stopped at one that was nothing but a page of links that sent you off to another branch of the tree. I think it’s going to be very worthwhile because it’s going to let people visualize what this thing is that they’re professing to say, yeah, that’s okay with me.

Joel MacMull: 

I think that’s a great idea. 

I increasingly want to get my arms around and tackle this as a legal proposition I will say all the agreements that we’ve looked at and we’ve gotta be up to what. At least a half dozen, if not more now. This is by far, I think the most egregious, just given the length, the complexity.

On the document that I was looking at, it’s so complicated, but on its face that there are provisions in here. it does make it, as far as I’m concerned, incomprehensible to the average user. 

Mark Miller: 

I want to make sure that I’m looking at this properly that I think. That you could make a case you personally, in a court of law, that you could make a case with this specifically, that there is no expectation that the average consumer will read this.

Let’s get into specifics. From the consumer’s part, I want to just paraphrase this, but I do have it in writing. So the. Thing that you do when you leave a review or participate in the public forum on Amazon, it says that you grant Amazon a non-exclusive royalty free, blah, blah, blah, that they can reproduce, modify, adapt, publish, perform, and translate and create derivative works from those reviews that you’ve left and they can distribute it and display that content throughout the world in any medium that they want, and use your name that you submitted in connection with it. And I’m saying, so you can modify content and you can put words in my mouth and say anything that you want and you can put my name on it.

When you read that, Joel, on the face of it, it’s just not right.

And I say this every show, it’s just not right. You can’t take my words, transform them into something completely different, and then put my name on it. 

Joel MacMull: 

But what you don’t like about that, and this is a philosophical position, is you don’t like the concept that you as a consumer can contract away your rights.

You and others bristle at that, right? But yet, as a practical matter, we do it all the time. When we walk into a movie theater, we are contracting. Now it’s a social contract, but we are contracting that we’re not going to cry fire when in fact there’s no fire. 

Mark Miller: 

Oh, you’re way off base.

You’re way off baseI don’t think I am. Yeah. This has nothing to do with freedom of speech. 

Joel MacMull: 

No. No, it doesn’t. And that’s not the analogy I’m trying to make. My point is only that there is nothing wrong with contracting away rights that you otherwise have 

Mark Miller:

If you know you’re contracting them away. And our point is, nobody’s reading this.

Joel MacMull: 

I agree with you except, and I just read this less than a half hour ago, courts, some courts at least are holding. Yes, we understand you’re not on actual notice, but you’re on inquiry notice, which is to the effect of when you click purchase there’s enough in there that says, by making this purchase, you also agree to our terms of service. Click here for the full, for the full vomiting of our terms and service. I agree with you, and I’m not suggesting that there isn’t something. afoul about what’s going on here. But I do disagree with the idea that we can’t, as individuals, contract away rights that we would otherwise have.

Mark Miller: 

Yeah. I’m not arguing that point. That’s, you’re right. That’s everywhere. But contracting this away with a punch of a button with no expectation that anybody’s going to read this stuff. Before they punch the button there needs and I’m not a government fanatic that I want government’s nose in anything or everything I should say, but there’s something egregiously wrong here.

Joel MacMull: 

And this is why a lawsuit is rather interesting to me because I would love to get my hands on the internal discovery within the legal department that goes something like this. Let’s make our agreements as complicated as possible so that not only can no one easily follow the flow chart you’re talking about, but that. I guess it’s one and the same such that the, such that no reasonable individual could prop properly understand the intersection of all of the agreements, and really at the end of the day had a full appreciation of what they were contracting away, even if they had read all 17 sub agreements that formed part of the overall terms and service.

Mark Miller: 

I’m looking at the section called Risk of Loss, 

The risk of loss summarizes is the risk of loss and title for such items in essence of what you buy 

Pass to you, the consumer upon our delivery, Amazon’s delivery to the carrier. my point is I don’t know anything about that character, the character, that carrier. I don’t know anything about this handoff at all. How can it be my responsibility when I have nothing to do with it? 

Joel MacMull: 

So let me just pick this apart.

It is interesting. All purchases of physical items from Amazon are made pursuant to a shipment agreement. This means that the risk of loss and title for such items passed to you upon our delivery to the carrier. 

But isn’t Amazon’s carrier its own carrier? 

Mark Miller: 

Oh, no, I get it from UPS and FedEx and the United States Post Office all the time from Amazon. in the big metropolitan areas, you and I see them all day long because they’re just wheeling carts up and down the street in New York.

But for the outlying areas, no, 

Joel MacMull: 

I guess this makes sense. Amazon will third party contract, DHL or whatever to deliver to some farm in Iowa. 

Mark Miller: 

The essence of this though, to me, says once we hand it off, It’s your problem. If it gets lost, it’s your problem. If there’s some kind of compensation that needs to be made to the character carrier, it’s your problem.

Joel MacMull: 

That’s what it seems to say. What’s interesting about that is, is when you consider third parties like DHL for example, it doesn’t say that the liability is transferred to their subcontractor. and that would make sense, right? Amazon transfers it to DHL Hey, I didn’t get, my kid didn’t get his baseball glove.

I want to, I want to take it up with D H L and the hope that they refund me or whatever. But you’re right as is, I. Yeah, you’re absolutely right. And title by the way, 

Mark Miller: 

Here’s another one that I’d like to dig a little bit deeper into. there’s basic cover your ass statements all over this thing, but the big one here for product descriptions is fascinating.

Amazon does not warrant that product descriptions or other content of any Amazon service is accurate, complete, reliable, current, or error free.

That’s under the product description statement. 

It goes outside the bounds of the consumer we’re talking about because it says any Amazon service. So does that mean that AWS description the Amazon web services, which they sell, Don’t have to be accurate, complete, reliable.

Joel MacMull: 

Yeah. Amazon service is defined elsewhere. I looked at it. I don’t remember what it is. but yeah, I think that’s right. here though, this is you can appreciate, I think I. What the driver was for this statement. If someone is offering a backpack and what you get is a fishing lure, they’re saying, it’s not my problem.

Mark Miller: 

I think we could all use common sense to say, Hey, I agree with that, but that’s not what they say here. 

Joel MacMull: 

That’s not what they say. And certainly Amazon Service, I assume covers more than just the, the, The, the e-commerce services we’re talking about, or air, if a product offered by Amazon itself, but then it goes on, is not as described, your sole remedy is to return it in an unused condition.

So where there’s a reseller, they’re saying, we have nothing to do with it. Where you’re buying from us directly. your soul, remedy is to return it to us unused. But it does beg the question, Amazon services, how broad is that and does that include some of the other ancillary services that I was looking at in the other main agreement?

Any of the A W S services, particularly as it relates to some of the, the hosting and all of that? 

Mark Miller: 

It goes back to what you said at the beginning, A lot of this is just incomprehensible and it doesn’t, it’s not even consistent within itself. And that’s the problem with something where you have hundreds and hundreds, if not thousands of pages. That’s defining all this stuff 

Joel MacMull: 

There’s a lot of other stuff going on there too, of course, which is that you have multiple lawyers. At different points in time working on this. And even though the design, I’m sure is harmony in terms of the language used, that’s really tough to do when you’re dealing with such a nebulous doc or series of documents.

Mark Miller: 

Let’s look then the next section that I have outlined here is app permissions. one of the things that they do, is they say, to learn more about these permissions, click here. And when you click here, it sends you to a page called Security and Privacy. That has nothing to do with mobile devices whatsoever. It’s got 19 additional links and three of those links pointing down the tree to additional more links

Joel MacMull: 

You had some good phrase. I think some weeks ago. It was analogous to, a fractal, as I recall. 

Mark Miller: 

Fractal documentation 

The final thing that I have that I would want your opinion on here is when I saw the how to serve a subpoena or other legal process section.

sure. And I looked at it and said, so Amazon’s going to define how I can serve a subpoena to them. 

Joel MacMull: 

They all do. They all do because what they want to do is they have various legal departments, but they’ll have one recipient, essentially a glorified post office from which they want to funnel all of their subpoenas.

And usually what happens is in a place like Amazon, subpoena from an ABC Corp gets issued a ticket. and they’re going to, someone at some point, I’m sure is going to look at that. So it’s, they receive it, it’s ticketed. They’re going to figure out what it is they want, right? They want business records and connection with an alleged trademark infringement that’ll be delivered to some subunit who will have a series of internal corporate lawyers or paralegals that will be responsible for, that sort of niche oriented production. i e they want all cashed webpages from 2019 to 2022 as it relates to, some esoteric domain string that involves the alleged, infringing product.

but that’s the, that’s not unusual. and certainly when, in years gone by, I have. I think every sort of young lawyer goes through this. This happens at banks too. When you’re seeking financial records, you spend some, you lose some traction, you lose some time having subpoenaed the wrong corporate office.

and again, I don’t know how this, I’ve only really practiced in the internet era. I don’t know what people were doing for purposes of subpoenaing bank records, in the area, but in the era before the internet. but that’s not uncommon. 

the only thing that jumped out at me too, I suppose was, and this actually looks at it from the other angle, is within the mother agreement, there’s this whole thing about taxes and appropriate tax reporting and withholding.

And that has to, at a minimum, apply to the Amazon reseller and they talk about how they’re going to, again, from a, from the standpoint of privacy, it reads For each seller, we will collect the necessary data and tax forms to enable compliance with applicable tax laws. For example, for US-based sellers, we will collect and retain seller name and address and may collect the tax identification number and other data as needed to comply with Form 1099K reporting requirements.

Mark Miller: 

The interesting thing for me, Joel, is when you talk about that, when I buy something on Amazon, Amazon knows I’m in New York City and they will put the New York City tax on top of that payment. Then the payment has to be processed through Amazon. I’m filling out the Amazon payment form. 

Joel MacMull: 

This is interesting for each buyer, so this would apply to you and us. It says, we will collect and retain the buyer’s name and address.

Now again, why are they doing that? You just hit the nail on the head. Because in New York City, I’m paying, for example, a New York City tax. 

 that begs the question then why is the buyer’s information kept?

 The buyer’s information is kept so that both Amazon and the Amazon reseller can appropriately report their revenues, period. That’s why. 

Mark Miller: 

Okay. Alright. All right. You want to call it a day on that one? 

Joel MacMull: 

Yeah, I guess so. 

Mark Miller: 

I want to remind people that you’re a lawyer, but you are not their lawyer. 

Joel MacMull: 

…at least not yet.

Mark Miller:

Thanks for joining us for this week’s “You’re kidding me… that’s in my EULA??” We’d appreciate your comments on today’s show page, located at WhatsInMyEULA.com. You’ll also find information on how to get in touch with Joel. While you’re on the page, tell us what other EULAs we should investigate. If we use your suggestion, we’ll give you a shoutout in that episode.

“That’s in my EULA??” is published weekly. Special thanks today to Katy, that’s with a ‘T”, Kadi, that’s with a “D”, Edwin, and Tracy for the awesome voiceover work at the beginning of the show. Music today is provided by Hash Out from Blue Dot Sessions. 

We’ll see you next week.

This was a Sourced Network Production.

If you’re interested in talking with Joel about some of the issues in this episode, shoot him an email.

Joel G. MacMull | Partner
Chair, Intellectual Property, Brand Management and Internet Law Practice
(973) 295-3652 | JMacmull@mblawfirm.com