4,931 Words Later: The iTunes Agreement (and incorporations by reference)

Aside from its length of 4,941 words, another problem is how often I am asked to assent to its terms — at every software update and periodically in between. This is of course redundant if their future terms clause, in which you "agree to agree", has any real legal force. You can read it the document in question here: iTunes Terms of Service.

I read the document, but I suspect only a few others ever have. I had some time, so I also fired off a diatribe to Apple's customer service. I do not expect a meaningful response, but I thought that some action was necessary.

My rant began:

"I can't sign in to iTunes" is the nearest subcategory I could find for my problem. It would be helpful if you provided an "other" category.

The real problem is, "I can't sign in to my iTunes Store account without agreeing to a 4,900 word contract."

In the note I point out that I am an Apple shareholder and a lifelong aficionado and customer. I then point out the silliness in requiring its customers to sign a 4,931 word contract to purchase music. We're not dealing in tanker trucks of Light Sweet Crude oil, we're dealing with the ability to purchase a song. That the document is changed and presented frequently adds insult to injury.

In my particular case, I have store credits (a few songs worth). I point out in my note that I believe this fact might counter any claims of new consideration, a necessary element for the enforceability of the contract. After all, Apple owes me in this one case. I'm sure Apple interprets this as taken care of by the document — store credits are conveniently non-refundable and have an "agreed-upon" cash value of a fraction of a cent. However, I suspect that a great many of Apple's severable clauses would be so-severed in a legal test.

Should I not be up in arms? Are Apple's tactics here reasonable? Is my lay analysis right?

See Also:

• Harvard Law Blog on iTunes Store
• EFF on possibly enforceable Dangerous EULA Terms.
• Law Professor Eric Goldman keeps a blog about contracts and licenses as they pertain to the internet.