Disney+ is rapidly closing in on Netflix, the current leader in subscription-based streaming, and is projected to have around 250 million subscribers by 2024. Every one of these new users must accept the same subscriber agreement. Attorney Benjamin Burns explains how this terribly-designed and one-sided contract actually gives Disney aggressive access to mine, collect and share your data. He also offers sound advice on how contract attorneys can support their clients in crafting user-friendly, informative subscription agreements that help consumers understand their rights. While these won’t change the power a company like Disney has over our personal data and entertainment access, they can at least offer customers much-needed transparency in the digital age.
Questions in this Episode:
- How does Disney get permission to data mine?
- Can subscribers object to one-sided terms?
- How does technology advance anti-consumerism?
- Why does Disney require your location data?
- What is a flash cookie?
Disney Gets Your Permission From a Document You Never Read
You can’t access Disney+ and ESPN+ unless you agree to the Subscription Agreement. Companies know that virtually no one reads these agreements. But if you did and found something objectionable, you are powerless to make changes. You either accept the agreement as is, or your family does not watch Disney+ or ESPN+. If your family wants to watch Hawkeye, Mulan, The Little Mermaid, Pixar or Marvel movies, or other Disney exclusive content, odds are you will subscribe and accept the Subscription Agreement.
But Disney’s Subscription Agreement is not just about giving you access to their streaming service. It is also about giving Disney access to your data and allowing them to aggressively mine and share that data. When reviewing, creating, or drafting subscription agreements or privacy policies, you will see how Disney and other companies bury these aggressive clauses in documents the consumer never reads.
Disney’s Terribly Formatted and Non-User-Friendly Document
The Disney+ and ESPN+ Subscriber Agreement is one of the worst visually laid out contracts you will find. Even if you love reading contracts every day, you will find this one challenging.
It has wide margins on both sides, making a narrow band of text run down the middle of the page. Disney spaces everything closely together and has no indentations to help the reader locate sections and clauses. This contract is a terrible reading experience, which seems more than ironic considering that Disney is a penultimate animation and storytelling company.
And it gets worse. Besides having a difficult-to-read format, this is also an extremely non-user-friendly document.
You cannot copy and paste any of the text, as you might normally do when reviewing and analyzing a contract.
For example, if you have questions about canceling your subscription, you must navigate to the page by typing www.disneyplus.com/account/cancel-subscription into your browser.
The hard-to-read, non-user-friendly Subscription Agreement seems to be in keeping with the one-sided approach to its terms.
The One-Sided Usage Terms
While users can currently stream up to four devices simultaneously for Disney+ and three for ESPN+, Disney has the right to change this term at any time at their sole discretion. While it is common for streaming services to have some limitations, Disney has reserved the ability to change a significant term of your paid service at any time, for any reason, and with no notification to you.
Disney also allows you to download movies and store them for a certain length of time on your devices, like 30 days. But Disney can also change those terms at any time.
Imagine if your water company could limit your water usage with no notice. Or if your internet provider could reduce the data speed without telling you. There would be an instant uproar.
One of the reasons that companies like Disney can change terms like number of users, number of devices, how long you can store downloads, and more is because current technology now allows them to make those changes instantaneously.
In the past, you couldn’t download ten movies onto your computer, and it was complicated for streaming companies to make changes to your account. Today it is technologically easy and quick.
But streaming companies seem to become more predatory in their terms as technological advances allow them to do so.
Disney Wants To Know Your Location at All Times
In Section 4(g) of Usage Terms, you are told that you cannot access ESPN+ unless you enable your location access. Disney explains that ESPN has specific contractual blackout provisions, and sometimes you might not be able to view certain geographically blacked-out games.
While that reasoning might be understandable, your devices are allowing location access all the time, even when you are not using them. And Disney can keep, store and use your data at their discretion. While some companies, like Apple, are trying to limit access to your data, other companies, like Disney, are collecting and monetizing your data. In this agreement, you allow them to do that.
Disney is a large company that owns many other companies. Once you permit Disney to collect your data, they can share it among all their companies.
Disney states they collect information through a variety of technologies, including cookies, flash cookies, pixels, tags, application program interfaces, Web beacons, and more. Pixels allow Disney to track you across the internet and target ads to you from any of their companies or services.
Disney explains that Flash cookies can store information like where you left off in the movie and store more user data than regular browser cookies. They also tell you that their advertisers and third-party service providers may use Flash cookies and that “Cookie management tools provided by your browser will not remove Flash cookies.”
And Disney collects information on you when you visit third-party sites, whether or not you are logged in or registered.
While Disney positions its data collection as an effort to improve user experience, they aggressively collect data that can be easily monetized.
How to Help Your Client with Subscription Agreements
Users want an adaptive internet experience, where personal service feels like you are dealing with friendly shopkeeper Nels Oleson at the general store on Little House on the Prairie.
But what seems to be happening is internet companies using the idea of personalized service when actually turning the consumer into a collection of monetizable data points.
As an attorney, how do you show your client the value of the user experience? And how can you get user authorizations and permissions without making them feel personally monetized?
Anti-consumerism should not advance along with the progress of technology. -Benjamin Burns #ContactTeardown Click To Tweet
Much of the current experience boils down to an imbalance of power. The user signs away everything without having the right to change anything.
If Disney wanted subscribers to actually understand what they were agreeing to, they could put terms and notifications into in-app pop-up boxes.
Users would see the terms or give needed permissions as they used the different services. They become more informed and feel empowered.
Your client would get the needed information and permissions and be seen as more consumer-friendly and transparent. Maybe not as much as shopkeeper Nels Oleson, but it’s a start.
The Walt Disney Company is rapidly growing its subscription-based streaming services as they close in on Netflix, the leader with more than 200 million subscribers. Disney has about 174 million subscribers across all its streaming platforms with their Disney+ and ESPN+ at about 116 million and 15 million subscribers. Subscribers must agree to the Disney+ and ESPN+ Subscriber Agreement to get access. Attorney Benjamin Burns explains how this one-sided, non-user-friendly, horribly-formatted agreement is designed to give Disney aggressive access to mine, collect and share your data.
THE CONTRACT: Disney+ Subscriber Agreement
THE GUEST: Benjamin Burns is an experienced Commercial Litigation and Corporate Law Attorney with a demonstrated history of litigating complex civil matters to verdict. Practice areas include Intellectual Property, Business Law, Copyright and Trademark, Trade Secrets, Products Liability, First and Third Party Insurance Litigation, Personal Injury and Wrongful Death, Real Property, and Real Estate Litigation. He can be reached at firstname.lastname@example.org or found on LinkedIn.
THE HOST: Mike Whelan is the author of Lawyer Forward: Finding Your Place in the Future of Law and host of the Lawyer Forward community. Learn more about his work for attorneys at www.lawyerforward.com.
If you are interested in being a guest on Contract Teardown, please email us at email@example.com.
Mike Whelan [00:01:43] Hey, everybody, welcome back to the Contract Teardown show from Law Insider, I’m Mike Whalen. The purpose in the show is exactly what it sounds like. We take contracts, we beat them up. We’re mean, we insult them, we tell them nobody likes them, and then sometimes we lift them up with supportive, kind words. I bring in smart friends like Ben Burns, who is with me today. Ben, how are you?
Ben Burns [00:02:03] I’m doing just fine. How are you, Mike?
Mike Whelan [00:02:05] I am. I’m OK. It’s Thanksgiving tomorrow in the United States as we record, which means I bought a bunch of food thinking I would prepare it in advance. Then I booked my entire week, except for Thursday, so I’m just cooking everything on Thursday anyway. Pro tip grill your turkey, people. That is the way to get the best flavor. So that’s what I’m doing this week. Ben, we are. You know what else I’m going to do, Ben. Watch this Pivot. This is going to be a professional pivot. The other thing I’m going to do is watch Hawkeye on Disney Plus. You see how I just — so today, what we are talking about, guys, is this document that I didn’t read when I signed up for Disney Plus. It is the subscriber agreement for Disney Plus and ESPN Plus. Ben, tell me, what is this thing? What are we looking at?
Ben Burns [00:02:58] Sure, Mike, well, this is a essentially the agreement. Your click rap agreement, if you will, that everybody who signs up to use the Disney Plus service or the ESPN service has to agree to an order to use it. It includes, you know, a multitude of different clauses and privacy policies and data sharing policies that the vast majority of people I’m assuming have not looked at.
Mike Whelan [00:03:24] Sweet. Well, we’re going to talk about how, in fact, this plays out in reality. But before we do that, Ben, tell us about you. What’s your background? What brings you to documents like this?
Ben Burns [00:03:35] Sure. I am a civil litigator and I do a lot of contract work as well. I’m also on the State Bar Technology Committee, so I generally keep myself up to speed on new tech developments and new technology companies and services and things like that. And that’s really what’s being, you know, user of Disney Plus myself and yes, me. And plus these agreements are not only applicable to me, but. Interesting.
Mike Whelan [00:04:07] Yeah. Cool. All right. So here’s what we’re going to do. We’re going to go step into this document. It’s a little bit. I’m going to warn you guys. Now part of the thing we’re going to talk about is it’s a little bit jumbled. So we’re going to go out of order on some of these things because there’s sort of a of in a logical flow. Before we do that, I just want to point out, Ben, because I’ve had a lot of conversations with experts on this show recently about just the visual experience and what a contract looks like. And I have to say, as I thumbed through this, right now, this is one of the worst visual experiences I’ve ever had in a contract. This is… Even if I were inclined to read contracts of things that my wife signs up for and that I pay for later because I found out we signed up for another subscription service — autobiographical. Even if I were to read documents like that, I would not read this one. It is very it’s got these really wide margins, narrow text. Everything’s spaced really close together. This is a terrible experience. So before we get into the actual document, a I want to hate on the people at Disney, which is an animation company like you guys are at the core, a design company, and this is what you got for me. But B tell me some background points about this thing when you went through it and you experienced what kind of big themes were you seeing as you as you look through this document?
Ben Burns [00:05:28] Yeah, absolutely. And you nailed you hit the nail right on the head as far as this being a difficult and not a user friendly agreement. Not only is it completely one big wall of text with no indentations or, you know, in the typical readable outline format, you can’t even highlight and copy and paste portions of the document. You can’t copy and select them, and there are portions in there where they refer you to hyperlinks that aren’t actual hyperlinks that you can’t click on or copy and paste them into your browser. And as you mentioned, this is Disney, and they certainly have the ability to make this contract readable.
Mike Whelan [00:06:09] And like you guys make fliers. You know, when I go to Disney World, there’s like signs for the bathroom that have a cartoon character on there that that are pointing at things. I know you have cartoon characters that you could make this more engaging if you if you wanted to. But I mean, I think even substantively, this is reflective of a theme. I mean, this is a pretty one sided document as we’re going to talk about. And so what I want to do is jump down awkwardly to four. We’re going to we’re going to start with four because that’s got a lot of the usage terms, the big picture stuff, what you actually care about when you sign up for a document like this, so. So let’s start. Let’s start with 4.C, because this one’s funny. This talks about streaming the content. Disney can be streamed through the service up to four concurrent streams up to three concurrent streams for ESPN. The number of concurrent streams available for use may change from time to time, at our discretion. That totally happened to me. That’s a real thing. What do you think about this section about how many TVs or devices can have it going at one time?
Ben Burns [00:07:17] Well, it’s certainly not uncommon. As a user of several services. Most of them have some limitations, and the issue is they are changing or they have reserves for themselves, the ability to change the service that you are paying for at their discretion, for any reason at all, without notification to you. So you know it too. And there are other clauses within there that are similarly the same way. You know, if you have a service, you pay for any sort of service, electricity or internet, and they have the ability to not only decide how much you know what your data is or change it without notifying you or you can’t go to certain websites during certain periods of time, like those are all potential changes that if they were to happen to your internet or your water, they would be, you know, you hear a lot of uproar about it. These have become so commonplace that I don’t think it’s appreciated how predatory it is.
Mike Whelan [00:08:23] Well, and you know, you look down at G speaking of data. One of the things that especially I have an iPhone and that’s, you know, we’re watching a lot of these things on Apple devices. And Apple has really gone hard on privacy, on protecting data are not giving data away. Well, now in G you look at it and that you specifically have to agree to give them location data, which is actually, you know, pretty significant data. What is the reason for that? Why are they asking for that location data and how do you feel about the way they’re handling that in this document?
Ben Burns [00:08:54] Well, you’d be speculation as far as why they wanted data, but it’s a pretty educated guess like every other company that collects all of the information, they’re using it to get to just better understand you and target ads and then, for whatever other reason, may crop up in the future that this data may become useful. Obviously, the location they essentially tell you you can’t use our services unless you agree to disclose to us your location at all times. Now, for what purpose you know they they may tie this off to, you know, usage and rights restrictions based off of your location. But at the end of the day, you do still have to provide them your exact location at all times in order to use their service.
Mike Whelan [00:09:38] Right? Yeah. I mean, for me, we talked about this before we recorded a bit, especially when you’re dealing with sporting events, there are blackouts depending on is it local because a lot of these, these companies, they have local contracts. So you know, for example, if I’m in Kansas City, so the Royals, the baseball team here, they have a specific TV deal here. So if I’m here and locally, there’s a royals game a lot of time to not get in the way of that local TV contract. ESPN will say, Well, anybody local, they’ve got to go through your local TV deal to watch the game. They can’t come watch it on ESPN Plus. And so, you know, you have to share that data wherever those those blackouts are. But you know that one of the things that I can promise you if you have not paid attention to this in the sports world is customers hate this, right? Because most of us, we don’t even want to be most of like this upcoming generation doesn’t even want to be on the TV channel, even if it’s like rabbit ears on the TV. We don’t want to see that stuff. And so you’re preserving a contract that we don’t. It’s not actually our experience, for the most part. We’re streaming, but the problem is that number is still relatively tiny. And so, you know, these companies like ESPN or whatever they they have to be mindful of, we got to preserve those TV deals because that’s actually who the team cares about. We can’t pay to, you know, replace that TV deal. That TV deal is worth a fortune. And we’re not paying that for streaming. So, you know, these are one of these issues of scale. But but then they preserve all this data. Looking down at ad 4.D. You see this language again. It’s is the length of time that certain temporary downloads remain available for you. It’s talking about, you know, this is a streaming service, but you can put some of these shows on your device under certain conditions. But it says the length of time that it can be available for offline viewing may change from time to time, at our discretion. So you’re seeing again this, they’ve got all the control here,
Ben Burns [00:11:39] Right and to touch on what you were mentioning earlier with regard to sports, it’s a hundred percent correct, you hit the nail on the head there. But but the issue really is that they may use your location data to make sure they’re compliant with those regulations, but they also keep it. You know, they don’t tell you that they’re only using it for that reason. They will give you that reason, which is often that surface value accepted as, OK, well, you’ve got to collect it for that reason, but then they maintain it and at their at their discretion, they can use it for whatever they want, you’ve given them the right to do that and touching back on what you said, 4.D. That’s another one of those instances where they can essentially change the product that you’ve purchased. You know, you pay for a service, you download that these movies and they can remove them or, you know, at their own discretion whenever they want to. And really, and maybe this is a result of the internet economy, a digital economy where that just couldn’t exist in the real world with real world products and real world services, and that could be changed without notice.
Mike Whelan [00:12:44] Yeah. And it’s so interesting because it’s just a business model dependent thing, you know, like Netflix, depending on how their money came. Netflix, initially it was like, Oh, you can only have one device. And then they went through a period where they were monetizing differently. And so they, they said, use as many devices wherever you want. We’re not trying to chase down people who share their password with their uncle or whatever. And now they’re back to sort of limiting the devices. It’s an interesting thing because I think to the point of limiting devices or limiting downloads, the technology has changed their options. You know, the fact that now they’re able to track this kind of data and you are able to download files that, you know, five years ago, you couldn’t download ten movies to a device. You didn’t have enough storage space in your pocket for that. But now you can, you know, put a whole library
Ben Burns [00:13:33] And it raises, you know, another, you know, begs the question, I would say, whether you know, the restrictions and the predatory nature of these one sided contracts, is it… Does it become more predatory as they the technological capabilities allow. You know, maybe it shouldn’t be that way. The anti consumerism shouldn’t advance along with the progress of technology.
Mike Whelan [00:14:03] Mm. Yeah. Or the other way around, right? Like, shouldn’t the technology make it so you can get more and more personalized and less and less in the, you know, the ability to download things or watch multiple streams at the same time because the internet is better. It it is a fascinating question of, you know, which is the cart driving the horse or vice versa, right? Like is, it seems like these companies are picking whatever benefits them. Well, looking up to (1)(B) relevant to that. It talks about allowing others access to this service. So we know this is a common thing that people take their, you know, password to Netflix or whatever, and they share it with a family member. How is Disney Plus and ESPN Plus? How are they dealing with this question of you sharing access with other people?
Ben Burns [00:14:53] Right. And this is a great tie in from our last topic because they are essentially saying, well, if you allow someone to use the service that you’ve signed up for. So I, you know, I sign up for Disney Plus. I voluntarily say, Hey, you can have all of the data that I produce anywhere on the internet all the time. They’ve also included a clause in there that if you allow anyone else to use the service, then you are essentially binding them to those same terms and conditions with or without their knowledge. And so in theory, if you were at my house on my couch and were using my account, if the technology existed someday where Disney Plus was able to say, I know Mike Whelan’s here, viewing, you know, using the Disney Plus service, then they would have they could say that you are bound by these same terms and conditions and they can and actually going down to there’s another clause in here that says that you don’t even need to have an account created. So you not being a Disney Plus subscriber, you may not have even known you come walking in and I’m in the middle of a Marvel movie. You watched the second half. They now when you go home, they collect all of your data and track everything you do across the internet you’ve given because I bound you to those same terms. Right?
Mike Whelan [00:19:41] Not to be able to keep track? Yeah. And if you if you have an iPhone, you’ve seen this because they’ve started to have that disclosure that pops up and says, do you want to let them keep chasing you? Right? And it’ll say in in the little pop up, here’s why we use it. We try to recommend better services and products to you, but it is always a little unsettling when you’re like talking to somebody on your phone and then Facebook gives you an ad perfectly targeted to the sweater you were just talking about, you know, it’s freaky. And the idea that Disney would be able to do that is nuts.
Ben Burns [00:20:12] Yeah, that’s alarming in and of itself and even more than that. The going back to what you were talking about with location services, right? They can give you a reason why, you know, we need to collect this data. You know, we got to we got to respect these blackout rules and, you know, geographic rules based on geographic location. You know, they can say, Hey, you know, we want to be the reason we’re collecting this data so that we can target apps, but they’re not telling you what they also may or may not do with this information. They’re they, you know, they give you one reason the tip of the iceberg, you know, and most of what they may or may not do with what makes you you. You’re never going to know about and maybe they don’t know about. They’re just going to hold on to this information until at some point, you know, the technology develops or they can adapt their business model in a more profitable way.
Ben Burns [00:21:32] No, no. Vague. Broad, you know, no one really even knows what that means. There’s no specificity to that, right? So, you know, these contracts are signed more or less agreed to by ordinary people, non attorneys, right? So I mean, an attorney would know, Oh, these are words that, you know, have some sort of meaning that isn’t explained here, but the lay person is going to gloss over them, say, Oh, well, they got some good faith reason why they yeah, OK, good faith.
Mike Whelan [00:22:03] We all we all talk about good faith. That’s a normal thing that we’ll talk about and things. Well, OK. So stepping back, a couple of things come to mind. One is this is what we wanted, right? We want an internet experience that is adaptive. We would love theoretically to be able to go into a store. You know, the country store down the street and for whatever the guy’s name was from a little house on the prairie that ran the country store. You know, for Bob to know, Oh, what’s going on with Susie, your sister? And doesn’t she have a dance coming up? And here’s a dress that I order for. You know what I mean? Like, we love the idea of that really personalized experience. But what you see here is let’s take the idea of that personalized experience. And let’s expand it in a way that you are a collection of data that is worth money to other people. If if I’m drafting, or if I, as the lawyer have any kind of input on how these decisions are being made, how do I help the company see the value in that little house on the prairie experience that consumers think they’re getting versus the I only see you as zeros and ones, and I’m going to sell you to the highest bidder.
Ben Burns [00:23:19] Well, I think they’re kind of doing it in a way that they phrase things in their contract and certainly with their advertising and public statements and things like that, they are going to highlight the positive aspects of the consequences of doing what they’re doing. And obviously, they’re not going to shed light to the, you know, privacy and
Mike Whelan [00:23:37] sky net, right?
Ben Burns [00:23:38] Yeah, right, exactly. You know, and really, what boils down to is the issue is bargaining power that. I don’t have the option to say I don’t agree with this part of the call and I can say, OK, well, then you don’t get to use our service. You know, those are unfortunately the, you know, they’ll say, Well, OK, you can always use a different service that’s that’s capitalism, right? But when you have all of these services that are doing the same thing? You know, it doesn’t matter.
Mike Whelan [00:24:11] And I can’t go anywhere else and and watch Hawkeye. I mean, there’s only the one place. Yeah. And I I feel like when you’re you’re thinking about if if you want consumers to actually change their behavior in order to, you know, agree to this thing. So the stuff that we talked about with sharing with family members or blackouts or, you know, how you can the thing that actually works for me with using these services is a relevant pop up will happen at the time that the choice is being made right. Like, it’s not this at the beginning. Sign up for this thing that’ll be used for the rest of forever. This, to me, is like bad nudge principles. This this, doesn’t it? The consequence is not tied to the experience. So how might you do this differently? Are you with me on that? Do you like having this one included all? Or do you think you can contextualize this a bit?
Ben Burns [00:25:08] One hundred percent. I think that if you if you were Disney and you really wanted people to understand what they were agreeing to and the consequences of that, you would have them agree to things one through the application they’re actually using. You know, I don’t have any data to support this, but I would imagine that the vast majority of people who are streaming things through Disney Plus or ESPN Plus are doing so on some sort of device. You know, whether it be a, you know, a gaming system or a phone or tablet as opposed to the the your web browser, which is what you need in order to go to a lot of these contracts that dictate the terms that you’re doing. So, you know, if you had in-app pop ups that say, you know that that are, you know, when you start to use the service, the, I suppose the information they collect, the terms change, right? You know, they could let you know.
Mike Whelan [00:26:06] Well, yeah, you see this on like Microsoft Word or whatever. You know, you see this where you’ll get a pop up that says, Hey, here’s a bit of instruction for you and you click the never show this window again thing and you dismiss it and you say you accept it. So now what I’m imagining is my kids in the next room who are actually the ones watching Disney Plus going Dad, there’s a disclosure again, you know, and just whining about all the constant disclosures. But if I have to suffer through it, they should have to suffer through it. Ben, thank you for joining us and talking about this document for people who want to reach out to you and connect with you and learn about your work, including with the Technology Committee and your state bar. What is the best way to connect with you?
Ben Burns [00:26:48] Sure, you can reach me. My email burns at BLG Litigation dot com or at my phone number 406-640-3221.
Mike Whelan [00:26:57] Very cool, and we’ll have that information and a link to this document and my review of Hawkeye. OK, maybe there won’t be a review over at Law insider dot com Slash resources and if you want to appear on the contract teardown show and beat up contracts like this? Just email us. We are at Community at Law Insider dot com. Ben, thank you again. We’ll see you guys next time.
Ben Burns [00:27:21] Thank you, Mike.