Digital contract weightlessness lets firms extract rights that paper terms could not impose

Evidence

Kim points out that paper documents once imposed natural restraints on contracting behavior simply by virtue of their cost to produce, distribute, and archive. Paper contracts require a physical signature, limiting the burden a firm is likely to impose on a customer by requiring her to read multiple pages of fine print. Digital terms, in contrast, are “weightless.” They can be expanded, reproduced, distributed, and archived at no additional cost. Once firms understood that the courts were disposed to validate their click-wrap and browse-wrap agreements, there was nothing to stop them from expanding the reach of these degraded contracts “to extract from consumers additional benefits unrelated to the transaction.” … In 2008 two Carnegie Mellon professors calculated that a reasonable reading of all the privacy policies that one encounters in a year would require 76 full workdays at a national opportunity cost of $781 billion. The numbers are much higher today. Still, most users remain unaware of these “rapacious” terms that, as Kim puts it, allow firms “to acquire rights without bargaining and to stealthily establish and embed practices before users, and regulators, realize what has happened.” — Shoshana Zuboff, The Age of Surveillance Capitalism, 152

Categorization

• XREF: Connects to the reader’s standing work on contracts, trust, and extralegal economic governance from Milgrom and the diamond-trade readings. — connects to: Standardized grain grades allow contracts detached from any particular physical entity — Donald MacKenzie, An Engine, Not a Camera: How Financial…, 73; Digital-era privacy rights were usurped by unilateral market claims on experience. — Shoshana Zuboff, The Age of Surveillance Capitalism, 34; Terms-of-service agreements bind users to contracts they never read — Shoshana Zuboff, The Age of Surveillance Capitalism, 150 (+4 more)
• SEED: The 76-workdays/$781 billion figure on reading privacy policies could anchor an essay on the attention costs of consent theater.

Broader Connections

• Click-wrap contracts function as a unilateral private seizure of user rights #expands (0.85) — Shoshana Zuboff, The Age of Surveillance Capitalism, 151
• Technological change in contract enforcement can alter industry structure without altering trade customs. #expands (0.85) — Lisa Bernestein, Opting out of the Legal System, 209
• Publishing contracts let uninvolved firms permanently profit from another’s original risk #complicates (0.75) — David, Elizabeth, Book of Mediterranean Food, 55
• Songwriter publishing rights attract buyout firms because they are simpler contracts than recording rights #expands (0.75) — Andrew deWaard, Derivative Media, 224