No Jitter Podcast: EULA and the Hula

In this edition of Guy Clinch's podcast series Conversations between Peers in the Communications Industry on NoJitter, Guy shares his thoughts about how the overuse of End User License Agreements (EULA) and other legal documents, including privacy statements, are diluting our core values. He talks about how this compares to the common view of the Hula, a once universally cherished piece of Polynesian culture that today is all too often trivialized.

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Hello everybody, welcome to this latest edition of the No Jitter podcast, Conversations between Peers in the Communications Industry.

Reading the title to this episode you may think, "Guy must have gotten ahold of some of that Maui Wowie. What can the Hula possible have in common with End User License Agreements (EULA)?"

If you'll give me a minute, I hope you will find that I can make sense of the EULA – Hula connection.

The point I wish to make is about how things that are important can become marginalized over time when not given the proper deference. This has become true of the Hula, and it is becoming true to some of the fundamental principles upon which business and society operate. The reasons why are the vast number of End User License Agreements (EULA) and other legal documents including Privacy Statements that users of information technologies today are required to accept.

For those of us to whom Hawaii is but a distant place formed in our imagination mostly by commercially filtered imagery, the Hula is but a novelty. It has been used as a way to hock everything from the Subway Five dollar Foot Long to the Hula Hair Barbie or as an artifice used by the smarmy Don Ho knockoff lounge lizard character in the show Mad Men as an excuse to grind up against the character Don Draper's wife.

Far from triviality, Hula is sacred to the native culture of Hawaii. Nathaniel B. Emerson wrote in 1909 that the Hula is, "An accomplishment requiring special education and arduous training in both song and dance, and more especially because it was a religious matter, to be guarded against profanation by the observance of tabus and the performance of priestly rites."

There are those who maintain reverence for what Hula is and continue to reserve the proper respect and practice.

"Practitioners of Hula among my people are found from Hawaii to Niihau, and we all learn and take the lessons and the examples of our teachers, our Kumu Hula. And we are entrusted to pass down to the future generations that we touch."
-Hinaleimoana Wong-Kalu from The Meaning Behind Hula (Smithsonian)

For most of us, however, the deep meaning of Hula has been lost.

The details of how Hula came to where it is in the popular imagination today are beyond what I wish to say here. It is the fact that something so important has become generally trivialized in popular perception that I compare to what EULA overuse threatens.

Legal notices are everywhere, so much so that we have become almost anesthetized to their meanings. How many of us even bother anymore to read the lengthy tomes? When we do, is it even possible for anyone who is not a lawyer to understand everything to which we agree when we click to accept?

I contend that not only does this fact diminish the gravitas behind the purpose of the EULA; it has even deeper implications. We are a society built on the Rule of Law. When we cause by their overuse, a sufficient number of our population to disregard or trivialize vital contracts, we weaken a fundamental premise upon which Law rests.

That fact is that to use any of the tools so very important to modern commerce today we each are required to assent to considerable obligations imposed by these legal documents. To carefully consider these obligations is beyond most of us. We have neither the time, skills nor the motivation.

A big part of the reason is because these contracts are written in a language that can only be truly comprehended by those with specialized education. I know I don't have the money to hire a lawyer each time I am required to accept a EULA. Even if I had the funds or the knowledge, I seldom have the time for more than a casual read. I am forced to assent to terms and conditions that I must admit I truly do not understand. I fear that I am putting myself at risk, but what choice do I have?

Even if I did have the legal training to understand all of the words in the typical agreement, how could I remember and diligently uphold the expansive terms? One agreement is enough. Every software, website, application or business tool I use is governed by a lengthy complex document written in arcane language.

And then there is the problem of keeping up. Even if you were to come to feel comfortable with the terms of all of the agreements you've consented to, along comes yet another new EULA, or an update of an existing one. EULAs are everywhere. The End User License Agreement or Privacy Policy are the perfunctory gateway to the use of any new software, application, website and now cloud-based services.

It's not like we need encouragement to disregard the law. An ethos to be a rebel seems built into the America national psyche. Think about our lack of reverence for another set of laws: Speed limits on the highway. How much does the speed limit really mean most of the time? Traffic flows, as traffic flows. Nobody gets stopped for five miles per hour over the limit.

A speed limit is easy enough to understand, and, one would think, easy enough to comply with; ignoring of course, the guy tailgating behind you who always feels you are not going fast enough. All I mean to say here is that for most of us, we don't need any excuse to stray from strict adherence to the legal straight and narrow.

It's like the pirate character Barbossa in the movie Pirates of the Caribbean: The Curse of the Black Pearl speaking about the Pirates Code ... "You must be a pirate for the pirate's code to apply and you're not. And thirdly, the code is more what you'd call 'guidelines' than actual rules."

I know there is a point of having these contracts. I've written many a line of code. I've come up with my fair share of unique and hopefully, useful ideas. I feel proprietorship in those accomplishments. I feel the sense that the users should know the worth of my efforts.

It's just that there has to be some happy medium. When we overdo anything, we suffer negative consequences.

Then there is the other side of the coin. Can there be some malicious Easter egg buried in the policy jargon? Facebook's challenges in coming to terms with Privacy Issues come to mind.

What about what is not written? I applaud LinkedIn for the way they are trying to simplify their Privacy Policies. It is great that any content that I post remains mine.

What about my social graph and the Business to Business profit LinkedIn hopes to mine for inferences from my LinkedIn relationships and online presence? Who has the right to that? I consider that proprietary and think that as a paying premium member of LinkedIn, the monthly subscription is high enough price to pay. Is it right that I should need to further subsidize LinkedIn's business?

Now it would be easy here to make a joke and point the finger. They are as old as Shakespeare "The first thing we do, let's kill all the lawyers," King Henry VI, Part II ... and as modern as the Lincoln Lawyer, "What do you have if three lawyers are buried up to their necks in cement?" ... Not enough cement."

My point is that the EULA has become so ubiquitous. Anything we wish to do today seems governed by a lengthy legal document. Most are incomprehensible, appearing inconveniently, and in the way of your latest deadline. Who takes the time? Who has the time?

Let's think about how today's EULA pecks away at the Rule of Law. Let's not sentence the Rule of Law to the ignominious fate of the Hula, a once universally cherished piece of Polynesian culture that is today all too often today trivialized.

Again from Shakespeare:

"We must not make a scarecrow of the law, Setting it up to fear the birds of prey,
And let it keep one shape, till custom make it
Their perch and not their terror."
- Measure for Measure

Thank you for listening to Conversations between Peers in the Communications Industry. This is your host Guy Clinch wishing you all the best in your productive day.

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