Making Sense of Software EULAs

Brian E. writes "An informal Clearware.org poll indicates that 67% of the 66 respondants never or rarely completely read end-user license agreements (EULAs). Clearware.org aims to make sense of software by proposing guidelines for vendors to characterize end-user license agreements. Defined characteristics include terms and conditions found in existing EULAs that impact control over the user's experience, privacy and system security. The guideline extends on the idea of Creative Commons' commons deed and RDF/XML metadata formats. This simplifies EULA terms in a consumer friendly way similar to care labels on clothing, nutrition facts on food and warnings on hazardous materials."

Comments

67%?

[Whiney Mac Fanboy]

An informal Clearware.org poll indicates that 67% of the 66 respondants never or rarely completely read end-user license agreements

67%? or Perhaps 66.666666667? :-)

I'm still thinking that 33% of respondants lied if they say they always completely read the EULA.

Typo in the summary.....

[Mayhem178]

I believe it should read:

An informal Clearware.org poll indicates that 67% of the 66 respondants never or rarely comply to end-user license agreements (EULAs).

Sample of 67?

[mpapet]

Get back to me when there's more, many more, data points.

Based on my experience, I know of one other person who knows what an EULA is even though they never read them.

Guidlines might be good though. The downside is an EULA may become more enforceable.

I thought these were unenforceable

[yagu]

IANAL (hate that acronym), but as I recently understood it, EULA's are in almost all regards unenforcable as they are contracts forged under duress. I pretty much have stopped reading them.

Re:I thought these were unenforceable

[Rydia]

You're confusing duress and adhesion. There is nothing per se invalid about contracts of adhesion (ie, you only have one source for a certain thing). In this case I'm not even sure that it would be an adhesion contract- depending on the software, there's usually a competing product that would be (if not ideal) practicable for your purpose.

The real question about EULAs are whether they are preempted by the doctrine of first sale. Generally they are not so long as the packaging contains a notice that there is a contract either in the supplied documentation or digitally on the medium. Courts don't expect publisher to shrink long contracts that are of reasonable length for their purpose down to the size of a box, nor is it their responsibility to have a printed copy in the store, as the publisher does not control the store.

A system on the box akin nutritional facts is a fantastic idea- if it were done properly as a standard, it would clear up a lot of confusion regarding EULAs.

Re:I thought these were unenforceable

[penguin-collective]

There is nothing per se invalid about contracts of adhesion (ie, you only have one source for a certain thing).

No, that's not what a contract of adhesion is. In fact, for most contracts of adhesion (insurance, etc.) there are many sources for the same product or service. What it really refers to is that there is such a difference in bargaining power between the two parties of a contract that one can basically just dictate long, complex, and inequitable terms.

Contracts of adhesion are not per se invalid, but courts will take the circumstances of the contract into account should a dispute arise.

Note that, in addition, EULAs often contain unenforceable terms (like restrictions on reverse engineering in jurisdictions where reverse engineering is explicitly permitted by law irrespective of contractual terms).

Re:I thought these were unenforceable

[hackstraw]

EULAs are not binding legally, ethically, or practically.

TOSes are. A business reserves the right to refuse service to anyone. I cannot expect service from McDonalds when I'm sitting there for days on end with a toy gun in my hand threatening to kill anyone in the store.

If I don't agree with a EULA, I can and will still use the software. If I do not agree with a TOS and the service provider terminates my service, I'm SOL.

Software is software. Maintenance contracts, updates, customer support, are a service. If I don't meet the minimum for said service, I get no service. In fact, the company is entitled to go out of business and terminate such service if they feel like it.

Caps Lock

[kryten_nl]

PROBABLY BECAUSE READING ALL UPPERCASE LETTERS IS SO ANNOYING.

And a little more white space didn't kill anyone (at least I'm fairely certain of it). In short, the EULA's I've seen, are designed to annoy the reader as much as possible.

Move along

[Billosaur]

From Clearware.org:
Number of Voters: 92
First Vote: Sunday, 02 April 2006 03:22
Last Vote: Monday, 17 April 2006 16:24

Move along... Nothing to see here... this has been going on for over two weeks and has only 92 votes. This sample is so unrepresentative it's not funny. When they have well over 10,000 votes and have done a statistical analysis based on age, gender, household income, etc., let me know.

Re:Move along

[flynt]

It is worse than that. Your comment is perhaps a bit misguided in two ways. First, even if this poll gets 10,000 particpants, we should still not trust it to provide us with results of the population at large, or even about the population of readers of that site. The reason is that the particpants are not being chosen randomly, they are self-selecting. Therefore, the only thing we can infer from this poll is about the actual participants in it. On the other hand, depending on what effects were interested in and population, 92 participants in a study or poll may be enough to show what we're after. It is entirely dependent on what we're studying and what we are interested in asking and answering. But there is no magic number that works in all situations, such as 30 or 1,000.

Why would any vendor do this voluntarily?

[dpbsmith]

The whole purposes of these EULAs is not to communicate clearly, nor to negotiate a good-faith bargain, but to manipulate consumers in putting their apparent agreement on record.

A landlord has no interest in pointing out that the "standard lease form" he shoves at you is one of many, and that he picked the most one-sided one he could find. He is certainly not going to say "Actually clause 16 is against the law and unenforceable in this state, but I hope you don't know that because most of my tenants don't and its a minor but valued source of extra profit for me."

Car rental companies were required to print their agreements in a certain type size so that at least it was possible to read them... if you didn't mind holding up a line of people behind you... and they responded by printing them in larger type, but using a color scheme of dark grey on white grey.

Food companies don't list their ingredients on the label because they like the idea, but because they were dragged kicking and screaming by the Pure Food and Drug Act and its successors. And they constantly negotiate for weaselly exceptions. For example, ingredients must be listed in order of predominance, but they are allowed to say "beef and pork" as long as the food includes both beef and pork, even if there is more pork than beef...

In what way would a clear-language EULA serve the interest of the vendor?

If it did, in fact, serve the interest of the vendor better than the current murky EULAs, I suspect some vendors would be using them already. If, as I believe, it does not serve the interest of the vendor, then why on earth would they agree to use them unless required to by law?

There's just a problem...

[Kjella]

...those that draw up the EULA doesn't want it to be clear, nor short. Seriously, if you knew that the other party is going to sign it anyway, wouldn't you want to put in as many catches for the customer and freedoms for yourself as you can, preferably obscured both in terms of size and language? In the worst case, you can tell the customer "that's not what it says, you're reading it wrong" and in the worst case a court will say "no, that part of the EULA is not valid". You lose nothing by trying, not having a "standard" license isn't any disadvantage because there's no major standard.

I wish there was a "BSA General End-User License Agreement" which contained all the usual legalese, and if software wouldn't use it they'd need to "explain" why they can't use it. Then you could get some proper legal analysis of it that would be reusable on all other software using the same license. When DRM comes to enforce all the currently unenforcable restrictions, I think we will need it. As it is, I click "I Agree" and ignore with impunity because I can and because spending $1000 to have a lawyer go through a 20-page license for a $50 product where there's no room for negotiation is ridiculous.

To me, if it acts like a sale I treat it mostly like a sale. Copyright, limitations on number of installs/users, private/commercial use, disclaimers and perhaps a few other things ok, the rest... fuck off. The toothbrush company don't get to tell me when, what, how or where to brush my teeth, what brands of toothpaste works or how to use it together with mouth water and dental floss. And I mean that even if they put "By opening this packaging, you agree to the terms and conditions. If not, you can return it for a refund" on it.

Kill All The Lawyers

[Detritus]

I get depressed every time I read an EULA. They disclaim all responsibility and warranties, basically saying that if they deliver useless crap, you will just have to smile and be grateful that they relieved you of all that excess money. You have to be a lawyer to know what parts are enforceable, what parts are questionable, and what parts are legal bullshit. It isn't a negotiated agreement between two parties, it's the strong dictating terms to the weak.

Blame the Lawyers

[CodeBuster]

Speaking as a software engineer I can honestly say that I despise writing these things as much as most users do reading them. However, they are unfortunately very necessary in the often litigious society in which we live if for no other reason than to protect the author from frivolous litigation. Even if you give your software away for free you still have to include those clauses disclaiming liabilities for "loss of business" (on a free product no less, but some people really do have that much nerve), "merchantability", and/or "fitness for a particular purpose", and all the rest of that crap. If there were fewer asshat attorneys that sue anyone at the drop of hat then these types of verbose agreements would not be as necessary. You say "just use the GPL" but that is not always an option because of certain clauses in the GPL that limit ones ability to restrict access to trade secrets. I am not knocking the GPL, if you want to license your work under those terms then go ahead, but it is not always possible from a business standpoint. The excessive legalese in our society is an antibody to the excessive amount of litigation, in fact I have read, cannot remember the source, that the United States spends as much as 2% of GDP on lawsuits which is many times more than any other developed nation in the world. So we don't like those long EULAs either but the lawyers made us do it.

EULAs are useless other then to get sued by them..

[camgangrel]

As far as I can see and as long as I have used computers be it M$ Windows or the Macintosh. I have read about 2 of the EULAs that have came with the software. I mean what is the point when you read them if they make any kind cents to the every day joe out there. Not the blood suckers. I mean when you set donw and read one of this things. Alot of what you are going to do with program one way or ther other is not even 1 take in to a count for. or 2 It's brakeing the EULA in the first place. I mean look at DVD ripers be it on the Mac or windows side of things. the EULAs in them make it so that by clicking on the buton that you have just broke the law as long as you are in the US. I mean all this EULAs are good for to is be able to sue someone or for the person(s) that made the software be able to run away and not get there ass in the fire for makeing a pice of software that openly make there paying joes. Into outlaws with out so much as the person(s) being held resable for make the every day joe think it's ok for them to do this as long as they buy the software. I say it's time that the EULAs be reworked so that they not only cover the person(s) that made the software but the end user as will.

A new hobby for the bored

[Antony T Curtis]

If you have the time and the money, here is a new hobby for you....

1. Buy lots of software at your local big-name retail outlet.
2. In your excitement, rip open the boxes and get access to the EULA.
3. If the EULA is on the CD, open the CD case, load the CD and get to the EULA.
4. Disagree with it.
5. Return the software in opened packaging, for a full refund.
6. If your big-name retail outlet refuses then the software vendor *must* refund it,
7. No you will not pay for shipping. You will happily throw it all in the trash can if they refund the money.
8. If they don't want to refund, take them to small claims court.
9. Argue that the full EULA should have been visible on the outside of the packaging in reasonable size type.
10. If you are vision impaired, argue that the Braile EULA should be on the packaging too or that typeface should be large print.

Remeber to keep copies of your receipts and correspondences!