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.

Re:Sample of 67?

[say]

No. The standard error (SE) is sqrt((p(1-p))/n) = sqrt((0.67*0.33)/66) = 0,057879185. If we are aiming for our standard 95 % confidence, the margin of error is 1,96*SE = 0,11344. It has a margin of error of 11 %, meaning that the true number is 67 % +- 11 % with 95 % confidence. I don't know much about the methods and people behind this test, so it's hard to say what population this statistic is correct for :-)

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

[schon]

Or do what I do - change them to something you do agree to. After all, a company is trying to unilaterally modify the terms of a contract after it's be executed (ie the software purchase), why shouldn't I have the right to do the same?

I find that doing something like:

echo "You may use this software as per your local Copyright law" >EULA.txt

works wonders for me.

I have no problem clicking "I Agree" after reading that.

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

[AhtirTano]

IANAL either, but I quote one here:

So, once again, true shrink wrap EULAs have been tested in most major jurisdictions and are valid contracts, subject to certain limitations. Terms of Service contracts, like the "EULA" found in MMOGs, are simply enforceable. There is a common perception that EULAs have not been tested in court. This is incorrect. They have been.

Don Shelkey

Re:I thought these were unenforceable

[fossa]

Here here. I saw this on slashdot some time ago... but has anyone tried paying for software in cash wrapped in a EULA that might, for example, nullify any EULA contained within the software box? I know your average store clerk couldn't care less... but it would be satisfying just the same. If witnessed, could such an act carry any weight in court in the event of a suit by the software publisher against you for violating the EULA? It certainly couldn't carry any less weight than the EULA?

I hate EULAs that look like a retail sale, and I hate non-CDs sold as if they were CDs. What happened to integrity?

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.

66 ?

[Phil246]

66 respondants is statistically insignificant. They might as well have said " 66 people say that the sky is falling "

Yes

[dotpavan]

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

Yes, you are right, they answered it that way because they hadnt read the question completely. :)

Two words:

[mustafap]

I agree

New EULA Guidelines

[Gunfighter]

I can see them now, nice and bulleted for the undereducated, illiterate masses the US public education system is spewing forth:

• Don't steal this software
• We're not liable for any bad stuff caused by this software
• We don't guarantee this software will do what we actually say it will do
• Install this software, and it means you let us control your computer
• Install this software, and you give up all your privacy rights
• Assimilate to the borg controlling this software
• Install this software, and you agree to cut down the mightest tree in the forest
• (with a herring)
• etc. etc.

The Rules

[ZachPruckowski]

The first rule of the EULA is "We do not talk about the EULA"
The second rule of the EULA is "WE DO NOT TALK ABOUT THE EULA"
The third rule of the EULA is "You may not read the EULA"
The fourth and final rule of the EULA is "No matter what, everyone signs"

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.

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?

The problem is not the langauge, it's the content.

[RecycledElectrons]

The problem with EULAs is not the confusing legalese, it's the content. Would you buy a car from someone who demanded that you waive all rights to sue, even if he deliberately comitted fraud? Would you also agree that he still owned the car, and that he could grant you a license to drive it as long as you never benchmarked it (looked at the speedometer?) Would you agree that he could lock the wheels or take it back at any time for any reason?

And if you did agree to that with your boss'es money, would you expect to keep your job?

Anyone who agrees on behalf of a corporation to a typical commerical EULA is guilty of serious crimes, especially criminal negligence.

Andy Out!

Not an issue

[voice_of_all_reason]

All EULA's have some sort of sentence near the top reading similar to: "By purchasing this product, you agree to..."

There's your loophole right there. The rest of you aren't actually paying for any of this crap, are you?

this is a good thing

[pulse2600]

similar to care labels on clothing, nutrition facts on food and warnings on hazardous materials."


This is EXACTLY what we need...I envision a big label across the Windows Vista CD: "SURGEON GENERAL'S WARNING: VISTA MAY CAUSE LUNG CANCER, EMPHYSEMA, AND BIRTH DEFECTS."

eula wiki

[rjnagle]

lately, I've been trying to keep track of all of the EULA's I've been agreeing to. It's overwhelming.

This wiki
http://www.gripewiki.com/index.php/EULA_Library

is trying to keep a public record of eulas (along with some analysis).

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.

Are "licenses" subject to sales tax?

[DrVomact]

I've been wondering about this. A lot of EULAs seem to say (as far as I can understand them) that I don't really own a copy of the software--I just have a license to use it under the terms of said license. Now, if I'm obtaining a license and not really buying anything, can such a transaction be subject to sales tax? It's like charging sales tax when I put money in a parking meter--I'm not buying the parking space, just the right to use it for a limited time.

I'm probably completely of the mark...but if I were right, what fun it would be to challenge the right of states to collect sales tax on software because of the EULA! I bet courts would start ruling EULAs invalid right and left...

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!