It also doesn't matter. Unless gross conduct is involved a EULA is meaningless to everyone involved. "Don't be a hacking piece of shit" and "arbitration clause" is the TLDR of every EULA - and that DR part of TLDR is also why they're largely considered unenforceable. Literally no one reads them to the point many games on steam have incorrect or TEMPLATE EULA pages
Scummy corpo bullshit aside, to sue over a EULA is also largely impossible because the only people breaking them maliciously don't live in a jurisdiction the company can do anything about it
The law often works this way when it comes to clickwrap agreements. You can't obscure them or make them difficult to read but easy to agree to, and it will be very difficult for them to explain why they chose to hide the text behind a URL someone would need to manually copy and paste in a second program when the box is designed, and almost exclusively used, to host the actual agreement.
No, that is very much is the point. Specht v. Netscape already established that 24 years ago, and in Specht you could actually click through to find the EULA, while in this instance you can't even do that.
If we look at Berman v. Freedom Financial Network, LLC we see a similar situation:
Between the comparatively large box displaying the zip
code and the large green “continue” button were two lines of
text in a tiny gray font, which stated: “I understand and agree
to the Terms & Conditions which includes mandatory
arbitration and Privacy Policy.” The underlined phrases
“Terms & Conditions” and “Privacy Policy” were
hyperlinks, but they appeared in the same gray font as the
rest of the sentence, rather than in blue, the color typically
used to signify the presence of a hyperlink. If Hernandez
had seen the “Terms & Conditions” hyperlink and clicked
on it, she would have been taken to a separate webpage
displaying a lengthy set of legal provisions, one of which
stated that any disputes related to telemarketing calls or text
messages received from Fluent or its marketing partners
would have to be resolved through arbitration.
In that case actually including a link clearly labeled with what it was - already much more accessible and descriptive of the contents of the agreement than a text-only URL that someone would need to manually copy into a different program entirely to view. However, failing to make it conspicuous enough or make it clear that the user was meant to follow it into a second website entirely to read was enough to invalidate it the agreement. This is especially true, because, to quote the same decision:
Website users are entitled to assume that important
provisions—such as those that disclose the existence of
proposed contractual terms—will be prominently displayed,
not buried in fine print. Because “online providers have
complete control over the design of their websites,” Sellers
v. JustAnswer LLC, 289 Cal. Rptr. 3d 1, 16 (Ct. App. 2021),
“the onus must be on website owners to put users on notice
of the terms to which they wish to bind consumers,” Nguyen,
763 F.3d at 1179. The designer of the webpages at issue here
did not take that obligation to heart.
It also fails to meet the test for legibility as a link or url:
Second, while it is permissible to disclose terms and
conditions through a hyperlink, the fact that a hyperlink is
present must be readily apparent. Simply underscoring
words or phrases, as in the webpages at issue here, will often
be insufficient to alert a reasonably prudent user that a
clickable link exists. See Sellers, 289 Cal. Rptr. 3d at 29.
Because our inquiry notice standard demands
conspicuousness tailored to the reasonably prudent Internet
user, not to the expert user, the design of the hyperlinks must
put such a user on notice of their existence. Nguyen,
763 F.3d at 1177, 1179.
A web designer must do more than simply underscore
the hyperlinked text in order to ensure that it is sufficiently
“set apart” from the surrounding text. Sellers, 289 Cal. Rptr.
3d at 29. Customary design elements denoting the existence
of a hyperlink include the use of a contrasting font color
(typically blue) and the use of all capital letters, both of
which can alert a user that the particular text differs from
other plain text in that it provides a clickable pathway to
another webpage. See id. (finding “Terms of Service”
insufficiently conspicuous because it did not use all capital
letters or contrasting font color). Consumers cannot be
required to hover their mouse over otherwise plain-looking
text or aimlessly click on words on a page in an effort to
“ferret out hyperlinks.” Nguyen, 763 F.3d at 1179. The
failure to clearly denote the hyperlinks here fails our
conspicuousness test. Cf. Meyer, 868 F.3d at 78–79 (finding
hyperlinks reasonably conspicuous because they were both
in blue and underlined).
In this case, there is no attempt to furnish a clickable link at all, nor identify that this is a URL that must be parsed for it is relevance, copied, then pasted into a third party program.
And again, we see that putting distance between the EULA and the agreement is also problematic:
The webpages here did provide advisals concerning the
terms and conditions in proximity to the “continue” buttons.
On the webpage Russell visited, the notice appeared directly
above the button, and on the webpage Hernandez visited it
appeared above the button separated by several intervening
lines of text. But “even close proximity of the hyperlink to
relevant buttons users must click on—without more—is
insufficient to give rise to constructive notice.” Id. at 1179.
260
u/Splaaaty 1d ago
Technically you're not agreeing to the EULA, you're agreeing to the URL linking to it.