Using EULAs To Bait and Switch

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."

Comments

So file a complaint

[SLot]

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?

Re:So file a complaint

[jhealy1024]

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....

Well....

[Neck_of_the_Woods]

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..

at least can you downgrade?

[morcheeba]

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.

Re:at least can you downgrade?

[jalefkowit]

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 :-)

Not-for-Profit vs. For-Profit Software

[WallyHartshorn]

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.)

Re:Not-for-Profit vs. For-Profit Software

[Anonymous Coward]

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.

If I understand correctly...

[Otter]

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.

Re:If I understand correctly...

[morcheeba]

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.

Re:If I understand correctly...

[Smallpond]

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

Re:If I understand correctly...

[jalefkowit]

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.

No surprise

[an_mo]

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

In other news...

[AnotherBrian]

...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.