Hidden EULA language

End-User License Agreements are often purposefully obfuscated through legal and technical language to hide terms and permissions that negatively affect the consumer. YouTuber and right-to-repair advocate, Louis Rossman, coined the term "EULA roofie" to describe this anti-consumer behavior, equating the hidden language for the purpose of securing an unfavorable agreement to drugging someone (roofying) for personal gain. The concept of hidden language within a EULA applies to situations where such terms, if made clear upfront, might cause a customer to second-guess their purchase.

By hiding contentious or unconscionable terms in dense legal documents, manufacturers exploit:

1. the consumer's lack of proficiency in understanding legal documents, and
2. the impracticality of reading long documents in order to meet one's needs.

Core Concept

Unfavorable language hidden within an end-user license agreement may be understood by three key deceptive practices:

1. Burying unattractive terms deep within an end-user license agreement, while avoiding their mention in marketing material and customer-facing interfaces.
2. Making the full terms impractical or impossible for the customer to meaningfully review.
3. Pointing to the End User License Agreement as a justification for unpopular and unfair practices.

Types of hidden EULA language

Redefining "buy" and "own"

Some companies attempt to redefine common terms such as "buy" and "own" through legal obfuscation within the EULA.

"Neutral third-party" arbitration

Many companies employ forced arbitration as a way to negate the consumer's right to pursue legal action against the company when they've been wronged. They hide this fact by using language to make it seem that the company is being fair by outsourcing issues in the company-consumer relationship to a "fair" and "nonjudgmental" third party who may act as a mediator during disputes. While this sounds neutral, objective, and even fair on the surface, it neglects the ways in which the company uses arbiters in their favor. Additionally, it completely removes the consumer's right to a class-action lawsuit in cases where the company's bad practice affects dozens, hundreds, or even thousands of other consumers.

Notable Examples

Sony PlayStation Store

Sony prominently displays "PURCHASE" buttons for digital content but buries a redefinition of the word "purchase" in Section 10.1 of their Terms of Service:

"Use of the terms 'own,' 'ownership', 'purchase,' 'sale,' 'sold,' 'sell,' 'rent' or 'buy'… does not mean or imply any transfer of ownership…"

This became an issue in 2023 when Sony and Discovery removed previously "purchased" content from users' libraries, citing terms hidden in their service agreement.

Placing disclaimers such as "We may take away and remove television and movies you bought & paid for at any time, because purchase doesn't mean purchase anymore" next to the "Add to cart" button would understandably negatively affect sales. Therefore, Sony buries this information on page 21 of their Terms of Service.

Smart Appliance Data Collection & Third-Party Data Sharing

LG Electronics (among others) require users to accept extensive terms of service and privacy policies to use the "smart" features on home appliances, such as washing machines.

While the "smart" features may have time-saving benefits, the time required to actually read and decipher these documents (often 3+ hours, especially for non-tech-savvy users) negates any time-saving benefits of the smart features themselves. This makes meaningful informed consent impractical.

A consumer has to read the complete Privacy Policy (see attached images below) to learn that LG collects their personal data and shares it with their advertising partners. Futhermore, this Privacy Policy is only shown to the customer once they have bought the LG product.

Disney's Wrongful Death Lawsuit

In a wrongful-death lawsuit, Jeffrey Piccolo sued Walt Disney Parks & Resorts and Great Irish Pubs Florida, Inc. after his wife, Dr. Kanokporn Tangsuan, died from a severe allergic reaction at Raglan Road Irish Pub in Disney Springs on 5 October 2023. The lawsuit accused the restaurant and Disney of negligence in accommodating her food allergy, which contributed to her death.

In May 2024, Disney attempted to have the case dismissed from court and sent to arbitration, citing two separate user agreements:

1. The Disney+ user agreement Piccolo accepted in 2019 when signing up for a free trial to Disney's streaming service on his PlayStation
2. Terms accepted when purchasing (ultimately unused) Epcot tickets through the My Disney Experience app in September 2023

This example shows how Disney attempted to use terms buried within a streaming-service agreement to deny a consumer's right to sue over an unrelated wrongful-death case at a restaurant. Disney argued that because Tangsuan had clicked "Agree & Continue" when signing up for the Disney+ streaming service, she was bound by an arbitration clause for any legal claims against the company or its affiliates. This, they argued, included the food served by a restaurant on their premises that killed her even though the issue was unrelated to the streaming service.

Disney said that the reason for trying to send the case to arbitration was that the restaurant "is neither owned nor operated by Disney" and that they were defending themselves against inclusion in the lawsuit.

Consumer Impact

The practice undermines informed consent in digital transactions by:

• Using lengthy documents (often 50+ pages) to hide terms that deprive the consumer of their privacy and their rights.
• Employing complex legal language to obscure the real meaning of agreements.
• Placing important information deep within documents where it is unlikely to be found.
• Presenting one meaning of terms (like "purchase") in the user interface while legally defining them differently in hidden terms.

Legal Context

While EULAs and Terms of Service are legally binding documents, the "EULA roofie" concept challenges their legitimacy by highlighting how they may violate principles of contract law such as:

• Meeting of the minds (mutual understanding between parties).
• Good-faith dealing.
• Reasonable notice of terms.
• Unconscionability (terms so unfair they shock the conscience).

Consumer Protection Response

The concept has been used in advocacy for:

• Plain-language requirements in consumer agreements.
• Prominent disclosure of significant terms.
• Reform of digital ownership rights.

Resources

• TOSDR — Helps consumers to understand and review terms of service policies
• Open Terms Archive — Helps consumers to understand and review terms of service policies