FTC Will Study Software License Practices

Markar writes: "An article on ComputerWorld states that the FTC is holding an educational forum next Thursday and Friday on software-licensing practices and UCITA laws. The FTC is requesting public comment. Here's your chance to tell the FTC what you think of UCITA (be nice :-)." (more below.)

This seems long-overdue -- if "licenses" are not comprehensible, what's the good in "agreeing" to their content? Though the deadline for comments is past, this page details the symposium, which will be open to the public. If you can get there, post your impressions here! The most important facts are these:

The Federal Trade Commission will hold a public forum on October 26 and 27, 2000 to examine warranty protection for software and other high-tech goods and services marketed to consumers.

The public forum will be held at the Federal Trade Commission headquarters, 600 Pennsylvania Avenue, N.W., Washington, D.C. on October 26, 2000 from 8:30 a.m. to 5:30 p.m. and on October 27, 2000 from 9:00 a.m. to 5:30 p.m.

What I'd like to do is get a few industry "autographs" on the back of a sheet of boilerplate (in the same font size as comes on typical EULA stickers and such) that begins: "By signing the reverse of this document, you agree to have irrevocably and with full knowledge waived the following rights and privileges ..." Sorry bub -- you signed the agreement, what can I tell ya?!

Comments

Re:Microsoft innovation? Hardly

[aufait]

For example, the Mainframe and Unix markets have been leasing software for years.

True, but there were several differences between the mainframe licenses and the current EULAs.

1. It was a signed before money changed hands.
2. It was a negotiated contract. If a company did not like a particular term, they could pressure the software vendor to change the term. If you don't like a term of the EULA, tough! Your only choice is to accept it or throw out the software/ (see point 1)
3. It was a negotiation between equals. The companies were large companies with their own stable of lawyers to check the contract for gotchyas A consumer would go broke if he took every EULA to a lawyer to see if there were any dangerous clauses.
4. Service was part of the licenseing contract. If it didn't work as the software vendor stated, the software vendor would supply programmers to fix the problem. If they didn't, it was breach of contract. Almost every EULA I have read states that the software is sold AS-IS and they disavow any claims made by their advertisements or salesmen.
5. The software vendors have the final word. Some go as far as reserving the right to unilaterally changing the license, e.g. McAfee. It is the consumer's responsibility to constinently check their web site to see if any terms have changed. Don't like the new terms, your only option is to stop using the software. Under normal contract law, any marterial changes to the terms must be explicitly agreeded to by both parties.

My favorite license agreement

[dodecahedron]

My favorite license agreement was that of Interactive Easyflow from Haventree Software (a company that is no more, alas). An excerpt from what they titled their "Bloodthirsty License Agreement":

We don't claim Easyflow is good for anything. If you think it is: great, but it's up to you to decide.

If Easyflow doesn't work: tough. If you lose millions because Easyflow messes up: it's you who's out the millions, not us. If you don't like this disclaimer: tough. We reserve the right to do the absolute minimum provided by law, up to and including nothing.

[snip]

The punishment for making copies other than as described above can be horrible. Sffice it to say that you should keep your doors locked and look out for the HavenTree attack shark.

I still laugh when I read this.

FTC Comments Page

[Markar]

You can read the comments here. Most of the comments are in PDF format, many of the comments reflect the Free/Open Source community view of UCITA, among them are, American Association of Law Libraries, Institute of Electrical and Electronic Engineers, PHD professors, and of course Richard M Stallman. Perhaps things aren't so bleak after all! Perhaps the FTC will support consumer interest! There would be some embarassed politicians in two states if the FTC ruled against the major provisions of UCITA including the legality of shrink-wrap and click-through licenses, remote recall/disabling of software, liability for individual programeers, NO liability for commercial software developers, etc :-)

Jefferson rolls over in grave

[twisty]

Thomas Jefferson, a Lawyer during the founding of the United States, said 'Ignorance of the Law is no excuse.' Yet, that was back in the day when the Law was just a few sheets of paper. If he could see the superhuman monstrosity that is now the Litigation Industry, he'd roll in his grave.

Agreement tends to mean that two or more parties are 'of like mind' in a certain issue. (i.e. Term of Use) How many humans do you know that can be of 'like mind' with a person who writes the typical click-through agreement or EULA?

Microsoft real advancement to the industry has nothing to do with software innovation... but rather License innovation. In a recent article, some microsoft programmers were drawing strong analogies between conditional branchesw of program code and conditional terms of Microsoft's software licenses, with the sense that licenses should be programmed in the future. Remember, when Microsoft got started in the 70's, people actually owned the software they bought... Microsoft helped 'pioneer' the idea that its use is merely licensed through obfuscated conditions of agreement.

Should we be thankful for this? I sure am not. Most lawyers have far more job security than I find comfortable. Why else would RMS be so nostalgic for the free software of old?