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Using EULAs To Bait and Switch

Posted by timothy on from the mmmm-bait dept.

jalefkowit writes "Watchfire, the company behind the popular Web accessibility testing package Bobby, has come up with an innovative way to squeeze money out of customers: they changed the licensing terms of Bobby for the latest release, but don't mention the changes in any of their sales materials -- the first time you'll hear about it is in the EULA, when you install the software. The kicker is, the changes mean that some customers will now have to buy many, many more copies of Bobby than before -- and if the new cost is too rich for your blood, they won't refund the money you paid before you found out about the new terms, since they laid it all out in the EULA! Your options are to either pony up for the additional licenses, or ditch Bobby without ever getting back the money you paid up front. I've written up my experiences dealing with Watchfire and their "upgrade" to Bobby 5.0 -- consider it a cautionary tale for people considering upgrading their own copies, or for anyone who's concerned about how EULAs let companies dodge responsibility for being honest with customers."

26 comments

  1. So file a complaint by SLot · · Score: 4, Informative

    with the Mass. Attorney General, along with the one in your own state. Let them do what your taxpayer dollars are supposed to do - protect your interests instead of pandering to the lowest common contribu^w denominator.

    Does Canada have something along the lines of a AG for each province?

    1. Re:So file a complaint by BigBir3d · · Score: 1

      I second that!

      It's not very often that government can help, use it when ever possible.

      Although, I don't see the point of using Bobby to begin with...

    2. Re:So file a complaint by MarvinMouse · · Score: 1

      yep, we have pretty much the same thing in Canada.

      I would've contacted a lawyer the minute they refused to let me return my software if I was them.

      --
      ~ kjrose
    3. Re:So file a complaint by jhealy1024 · · Score: 4, Informative

      Filing with the Mass AG is a good idea -- when I've talked to them they've always been very helpful (I live in Mass).

      Furthermore, the practice described in the article seems to violate a major provision of the Mass Consumer Protection Law (emphasis mine):

      Disclosure of Facts

      Mass. Gen. Law Chapter 93A
      940 Code of Mass. Regs. 3.05

      When you buy from a merchant, you are entitled to all the key facts about the purchase before you buy.

      A merchant is obligated under the law to disclose any fact, the disclosure of which may have influenced the buyer not to enter into the transaction to start with.

      Similarly, sellers are required in advertising to disclose all material facts concerning the product or service which, if not disclosed, might directly or by implication, mislead the consumer.

      Private party sellers, except in car sales, do not have the same obligation to disclose material facts unless asked.

      Seems to me that since this change would have affected the decision to make the purchase, the law is pretty cut and dried on this. Of course, IANAL....

    4. Re:So file a complaint by Tycho · · Score: 1

      Also file a complaint with the Minnesota Attorney General. The Minnesota AG has gone after several large corporations that were misbehaving.

      --
      Impersonating Tycho from Penny Arcade since before there was a PA.
    5. Re:So file a complaint by rifter · · Score: 1

      IANAL, but he woudl be on very strong legal ground. Several cases, including this one have said that EULAs cannot be binding specifically because the terms of sale are not disclosed before the sale occurs. You are only bound by the terms of sale disclosed beforehand. And it *is* a sale. If this sale meets the bait and switch criteria, there are specific applicable laws against it which could potentially mean people go to jail over this.

      There are also some laws about returning things. Apparently anything bought mail-order has to have *by US law* a 30 day return policy, which is why Dell and many other online companies have one. Software is a sticky point, but I think a good lawyer could find many legal remedies here, and a good judge would quickly see the problem.

  2. Well.... by Neck_of_the_Woods · · Score: 2, Interesting



    I heard someone say one time that EULAs should be 100 words or less. If you can't tell someone how not to use your product in 100 words or less then you either have not made a good product, did not secure it well enough against misuse, or are trying to slid something by the end user that you don't want the end user to have a good handle on.

    I found that idea very interesting..

    --
    Neck_of_the_Woods
    #/usr/local/surf/glassy/overhead
  3. at least can you downgrade? by morcheeba · · Score: 2, Insightful

    Can you get back to the previous version & be out just the $99, or is the upgrade process non-reversible? As software becomes more network-centric (where not all of it resides on your PC alone, but some key is on the mfg's server), this may become harder for a user to do.

    --
    HIV Crosses Species Barrier... into Muppets
    1. Re:at least can you downgrade? by jalefkowit · · Score: 2, Interesting

      Thankfully Bobby Desktop doesn't "expire" or require renewal to keep working, so I can still use my old Bobby 4.0.1 and, as you mention, just be out the $99. However, my impression of Watchfire is sufficiently low after all this that I'm inclined to go shell out for Cynthia Says or some other alternative just for the pleasure of scrubbing all traces of Watchfire from my PC :-)

      --

      Read my blog.

  4. Not-for-Profit vs. For-Profit Software by WallyHartshorn · · Score: 2, Insightful

    I guess this is what happens when software moves from a not-for-profit organization to a for-profit company. I guess this is also what happens when the software isn't Open Source.

    Sounds like it's time for someone to start another Open Source project on SourceForge. (Alas, it won't be me, but I'm hoping others will step up to the challenge.)

    1. Re:Not-for-Profit vs. For-Profit Software by Anonymous Coward · · Score: 4, Informative

      Some Bobby alternatives: Cynthia Says and WAVE. There's also a Colorblind web page filter. For mozilla users, there's the Checky plug-in to manage validation services.

  5. If I understand correctly... by Otter · · Score: 2, Insightful
    Maybe I got this wrong, but -- you used to be able to generate HTML reports that clients could easily read, but they've now removed that feature, forcing you to export in native format. (That's not exactly true, but for the sake of argument, let's say it is.) This forces those clients to buy their own copies to read the reports you generate.

    That's frustrating, and arguably sleazy, although I can see their motivation for doing it. And I'm sure they didn't advertise "Now missing one of your favorite features!" on the box.

    But how does this qualify as "changing the licensing terms"? Nothing you've said (AFAICT) involves a change in licensing terms. You have a reasonable cause to be angry but it seems to me you're throwing around accusations in an entirely dishonest way.

    --
    What I'm listening to now on Pandora...
    1. Re:If I understand correctly... by morcheeba · · Score: 2, Informative

      I think you're essentially right -- it's not a license terms change per se -- but it effectively changes the program from unlimited-clients to just one client. While enforced as the lack of a software feature, it totally changes the pricing model. The EULA connection comes in because it is the only place where you could learn about this feature-downgrade, and the fact that you could only read the EULA once the software was purchased. I don't think it's the "legally-binding" part of the EULA that's of concern; it seems like the long text of the EULA was just a convenient place to hide this notice during the install process.

      --
      HIV Crosses Species Barrier... into Muppets
    2. Re:If I understand correctly... by Smallpond · · Score: 3, Informative


      This is the list of changes in 5.0 from their website. Nowhere in it do I see that it removed a feature. In fact it says they have improved reporting. That's a misleading ad if I've ever seen one.

      What's New in Bobby(TM) 5.0?

      Bobby 5.0 is a comprehensive web accessibility desktop testing tool that incorporates the scanning and reporting functionality of Watchfire® WebQA(TM). Over the past months, we gathered feedback from all previous Bobby users and addressed the common issues in this release. Enhancements include:

      Spidering Abilities

      * Flash links
      * JavaScript parsing and execution
      * http(s)
      * Session IDs
      * Logins
      * Now able to scan larger sites than ever before

      Reporting

      * Improved Section 508/WCAG reporting

      New Options

      * Advanced scan and report options

      HTML Editor Integration

      * Now you can fix errors quickly and easily

      Extensive online help

      * Explains why certain errors are reported as issues

    3. Re:If I understand correctly... by Otter · · Score: 1

      You've completely ignored my point -- this is arguably sleazy but has absolutely nothing whatsoever to do with a licensing change in the EULA.

      --
      What I'm listening to now on Pandora...
    4. Re:If I understand correctly... by jalefkowit · · Score: 2, Informative

      I describe this as a change of licensing terms because when I spoke with Watchfire, they asserted that I had been notified about the change through the EULA displayed when I installed Bobby 5.0 -- in other words, through a changed license agreement. If it was simply a change in the business model for Bobby, and a feature downgrade, that would be one thing -- but they actively asserted to me that the omission of the feature was driven by a desire to change the terms under which users purchased Bobby, and those new terms were laid out in the new EULA. Sorry if this wasn't clear in my original post -- I can see how it might be confusing.

      --

      Read my blog.

  6. No surprise by an_mo · · Score: 2, Interesting

    Believe it or not, disabled people are great source of of profits and companies are not afraid to exploit their monopoly power. Braille pads for the blind cost thousands of dollars, now bobby behaving like an ass... I sincerely hope w3 takes the lead creating a free, open source validator that checks their own specs

    1. Re:No surprise by Suppafly · · Score: 1

      Believe it or not, disabled people are great source of of profits and companies are not afraid to exploit their monopoly power. Braille pads for the blind cost thousands of dollars, now bobby behaving like an ass... I sincerely hope w3 takes the lead creating a free, open source validator that checks their own specs

      Exactly, ZoomText which makes windows accessible to the visually impared costs something like $400-$700 a license and if you are a university, you have to buy several licenses instead of being able to network install it when its needed or put it on a ghost image.

    2. Re:No surprise by rifter · · Score: 1

      I thought windows had a built in magnifier feature? Granted I have not used it, but I have noticed a lot of accessability features built into Windows for those who are differently able.

    3. Re:No surprise by Suppafly · · Score: 1

      according to the few people I know that need accessibility features, the built in windows ones aren't that useable. 3rd party ones like zoom text will invert the colors and such that window's won't do;

    4. Re:No surprise by rifter · · Score: 1

      aha. yes inverting colours would be important for the colourblind.

  7. In other news... by AnotherBrian · · Score: 2, Funny

    ...Watchfire has announced a $3.7 Million lawsuit against Slashdot and Jason Lefkowitz. Citing the DMCA, Watchfire explained that the defendants violated copyright by making available to the public, parts of thiar copyrighted EULA.

  8. Re:If I understand correctly... Foxpro? by Havokmon · · Score: 1
    Maybe I got this wrong, but -- you used to be able to generate HTML reports that clients could easily read, but they've now removed that feature, forcing you to export in native format. (That's not exactly true, but for the sake of argument, let's say it is.) This forces those clients to buy their own copies to read the reports you generate.

    That's frustrating, and arguably sleazy, although I can see their motivation for doing it. And I'm sure they didn't advertise "Now missing one of your favorite features!" on the box.

    So... That's like buying Visual Foxpro, writing an application, and then discovering you have to buy VFP for each of the Linux workstations that you want to deploy your application to...

    Right?

    --
    "I can't give you a brain, so I'll give you a diploma" - The Great Oz (blatently stolen sig)
  9. Here's an idea by Anonymous Coward · · Score: 0

    While I agree that it's pretty slimy of a company to try and slip something through an EULA ... the whole reason they do so is that nobody bother's to read them, and instead just happily click the ACCEPT button. Tell me, if a lawyer came up to you in the street, asked you for the time and said "oh, while you're at it, please sign this document", wouldn't you *read* it first?

    More people need to take the time to sit down and read through EULAs before they blindly accept them.

  10. Scrutiny by Heinr!ch · · Score: 1

    It seems as though there needs to be more consumer awareness about EULAs and such blatant bait and switch tactics. Do you think awareness would increase if there were a public Agreement Archive that stored every version of standard EULAs and SLAs? Contributors would be users, journals, and the companies themselves. This would be a great place for companies to get feedback on their agreements as well.