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Does Anyone Actually Read Software EULAs?


#21

what are you talking about? the EULA is my favorite bathroom material, and when I’m done, I use it to clean up… I figure I’m doing the company a favor. After all, the crap that ends up on it, is probably easier to understand than was on it originally. But all seriousness aside. The EULA is just like a job contract, filled with meaningless jargon that no court (let me retract that, very few courts) would ever hold up.

“By agreeing to this document you commit your soul to SpyHackSoftWare, Inc. for an eternity of servitude”

that is oddly similar to the line of the contract i signed on for this head hunter

“By SIGNING this document you commit your soul to SpyHackSoftWare, LLC. for an eternity of servitude”


#22

By reading this paragraph you agree to an illegal contract which the courts will not uphold. This License will be laughed at by any judge who we can not buy.


#23

So you guys don’t read EULAs? Too bad. You might inadvertently agree to let the software read anything from your HDD and send the information to the manufacturer. See Puzzle Pirates (http://www.puzzlepirates.com/).


#24

Just modify the following text to your needs and publish it on you site or blog:

“By installing your software or any part of it, directly or indirectly, manually or by means of any automatic tool, on my computing device, you explicitly agree to be bound by the following terms:

If you find these terms unacceptable, you must cancel software installation and return device to it’s state before installation.”

:slight_smile:


#25

Ed Foster’s Fair EULA:

Background:
http://www.windowssecrets.com/comp/070607#story1

Version 0.90.1 FEULA text:
http://www.gripe2ed.com/scoop/story/2005/3/25/02054/3216


“Fair” End User License Agreement, Version .90.1

  1. We grant you one license to install and use this software on a single computer at a time. If you do not agree to the following terms of this license, please uninstall and remove all copies and return the product within 30 days of your purchase for a full refund.

  2. You may install and use the software on another computer, but the software should not be in use on more than one computer at a time unless you purchase additional licenses. You may make back-up copies of the software for archival purposes. You may permanently transfer your license to use the software to another party who will be bound by this agreement, provided you do not retain any copies of the software.

  3. The software is protected by the copyright laws of the U.S. and other countries, and we retain all intellectual property rights in the software. You may not separately publish, sell, market, distribute, lend, lease, rent, or sublicense the software. However, this license is not to be construed as prohibiting or limiting any fair use sanctioned by copyright law, such as permitted library and classroom usage or reverse engineering.

LIMITED WARRANTY

  1. We warrant that the software will provide the features and functions generally described in the product specification on our website when you purchased it and in the product documentation. Media on which the Software is furnished, if any, will be free from defects in materials and workmanship.

  2. We have taken all reasonable steps to keep the software free of viruses, spyware, “back door” entrances, or any other harmful code. We will not track or collect any information about you, your data, or your use of the software except as you specifically authorize. We will not intentionally deprive you of your ability to use any features of the software or access to your data.

  3. We do not warrant that the software or your ability to use it will be uninterrupted or error-free. To the extent permitted by applicable law, we disclaim any implied warranty of merchantability or fitness for a particular purpose.

LIMITATIONS ON LIABILITY

  1. Your exclusive remedy under the above limited warranty shall be, at our option, either a full refund of the purchase price or correction of the defective software or media. To the fullest extent permitted by applicable law, we disclaim all liability for indirect or consequential damages that arise under this license agreement. Nothing in this agreement limits our liability to you in the event of death or personal injury resulting from gross negligence, fraud, or knowing misrepresentation on our part.

GENERAL PROVISIONS

  1. If any part of this agreement is found to be invalid or unenforceable, the remaining terms will stay in effect. This agreement does not prejudice the statutory rights of any party dealing as a consumer.

  2. This agreement will be governed by the laws, including Article 2 of the Uniform Commercial Code, of the state in which you reside. If your state has enacted the Uniform Computer Information Transactions Act (UCITA) or substantially similar law, said statute shall not govern any aspect of this agreement and instead the law as it existed prior to such enactment shall govern.

  3. This agreement does not supersede any express warranties we made to you. Any modification to this agreement must be agreed to in writing by both parties.


#26

Software that contains ad-ware or even spyware often says it in the EULA — probably because no one reads the things and the “contract” might offer the company some legal protection.

Likewise, some EULAs state that the product contains no ads etc. I’ve taken the habit of browsing the EULAs very quickly, to find these useful pieces of information. For instance, a EULA prevented me from installing a Tetris game recently :slight_smile:

I completely agree with the criticism, though. Most people just blindly click “Agree” and I can’t blame them at all.


#27

Aaron: breaking the terms of the EULA - any of them - is copyright infringement. Without the EULA, you do not have a license to make copies. Without the license, you are infringing when you make any copy, and that includes installing on your own system. Fair use applies to making small quotes from a work for the purpose of exposition, and in practice cannot apply to software.

Certainly there are terms that conflict with rights given in law - reverse engineering is legal in the US and in Europe, for the purposes of compatibility - but I believe a judge would consider that the existence of such terms did not invalidate the contract entirely, merely strike down the invalid terms.

As for what’s legally binding language, it’s whatever a judge will accept that your intent was. There’s no real need for lawyers to torture the language, because it’s simply not possible to write English that is incapable of being misconstrued. Heck, we can’t manage it with our carefully-constructed programming languages (otherwise there would be no bugs).

Copyright is supposedly enforceable between people and organisations in any two countries that have signed the WIPO Copyright Treaty. So yes, since France, Ireland and Brazil are all signatories (France and Ireland through the European Union), anon’s example should indeed be enforceable.


#28

“So you guys don’t read EULAs? Too bad. You might inadvertently agree to let the software read anything from your HDD and send the information to the manufacturer. See Puzzle Pirates (<a href=“http://www.puzzlepirates.com/).””>http://www.puzzlepirates.com/)."

I looked at their EULA and still can’t see where it says that?

Can you point it out to me please :slight_smile:

Jim.


#29

There is also the Reasonable Agreement:

http://reasonableagreement.org/

READ CAREFULLY. By [accepting this material|accepting this payment|accepting this business-card|viewing this t-shirt|reading this sticker] you agree, on behalf of your employer, to release me from all obligations and waivers arising from any and all NON-NEGOTIATED agreements, licenses, terms-of-service, shrinkwrap, clickwrap, browsewrap, confidentiality, non-disclosure, non-compete and acceptable use policies (”BOGUS AGREEMENTS”) that I have entered into with your employer, its partners, licensors, agents and assigns, in perpetuity, without prejudice to my ongoing rights and privileges. You further represent that you have the authority to release me from any BOGUS AGREEMENTS on behalf of your employer.


#30

Most Intl. EULAs are illegal in Spain, because Spain law is less permisive with mfr. products. For example, Windows and most Microsoft products EULAs have a lot of points that are not applicable in Spain.

For example Reverse Engineering. If product does not work as expected, and mfr. does not solve it, user can do whaterver he need to get working (incluiding reverse engineering, modifyng structure and so with no warranty lost).

Programs that monitor activities (wich main purpose is not monitor activities) are illegal, and are illegal limit a program to do a thing that can do -for example, if EULA says that XX compiler is not inteded to do compilers, but it can do, you can make a compiler with it (well, you cannot make a fried egg with a refrigerator).

And Company Creator/Importer/Seller have responsability of its programs.


#31

It’s not just software EULAs, though, where this cover-every-eventuality legal behaviour is becoming pervasive. For example, the terms and conditions for UK mobile telephony operator Orange run to 18,500 words (about 35 printed pages using a simple copy-and-paste into Word). Analagous to the software EULA, unless I read everything, how can I know whether buried in there somewhere is the explicit right for Orange to record all my phone conversations for marketing purposes?

To buy anything from their website necessitates agreeing to a set of terms running to almost 64,000 words, or nearly 115 printed pages, presumably in addition to their terms of use. (See for yourself: http://shop.orange.co.uk/shop/terms?WT.svl=300). Even allowing that not all sections will be immediately relevant to a purchaser, it’s hard to see that anybody has ever sat and read these terms right through, yet the user is obliged to click on “I agree” before making any purchases.

I once contacted Orange to query this state of affairs and they told me that there is no “cut down” version and nor could they tell me which parts were relevant to my purchase of a 50p ($1) SIM card. So I declined.


#32

It all comes down to the legal situation that software is considered copyright material and hence the only person allowed to make copies is the author, and anyone they have approved - LICENSED - to make copies on their behalf. Software produced for an employer belongs to that employer.

Legally, if you do not agree to the license agreement, YOU ARE NOT PERMITTED TO MAKE COPIES. The EULA is the contract and terms under which you’re permitted to make copies.

Installation counts as making a copy. Taking a backup of the installation counts as making a copy. Copying the source media counts as making a copy.

That said, it would be far better for the industry if the EULAs were drafted by marketing rather than by lawyers. Currently the EULA is not intelligible by the business, so it doesn’t end up saying what they actually intend it to say, and it’s not intelligible by the end-user, so they interpret the terms incorrectly. Witness all the furore over the Windows Vista EULA, where it was clear that the actual rights intended to be granted or denied by the product team weren’t actually translated correctly into legalese, and the legalese confused the hell out of all the enthusiasts.

It’s like you and me trying to have a conversation by using a foreign language, using an interpreter that doesn’t understand the subject we’re discussing.


#33

In Australia, these things are unenforceable UNLESS you read it.

They can’t override local consumer protection laws in any event.

So make sure you don’t read it!


#34

I have always admired Borland’s “No-nonsense license agreement”: “You can use this software like a book…”


#35

Whenever I get a EULA I say out loud, “I do not agree with this EULA and if you, the software vendor, do not agree that I have a right to use your software without agreeing to the EULA then you may come into my office/home and remove the software from my hands, you have 5 seconds…”

This statement makes as much sense, and is as enforceable, as a EULA so they cancel each other out.

Fighting stupidity with stupidity since 1901.


#36

I’m not an expert but I have just completed first year law up here in Canada and I did sleep at a Holiday Inn Express last night (OK, the Holiday Inn bit is a lie). The nature of a EULA is a contract between a party in a strong bargaining position (the vendor) and one in a weaker position (the user). As such, courts generally do not uphold such agreements where the contract is an abuse of power by the stronger party - hence the earlier statements made by some that EULAs do not override consumer protection laws. However, where such agreements are reasonable, the courts will uphold them as it would be inefficient to force corporations to individually negotitate such “standard form contracts” with each potential customer.

Courts have upheld EULA agreements in Canadian courts, notably in Kanitz v. Rogers Cable Inc. (http://www.dww.com/decisions/kanitz_v_rogers_cable_inc.pdf). However, that was a bit of a special case in that the Defendant, Rogers Cable, modified the EULA that had been agreed to by the Plaintiffs as part of their contract with the prior cable provider (Rogers and Shaw swapped huge regions of Canada at one point, Shaw taking over Rogers operations in B.C. for example, and Rogers taking over Shaw operations in Ontario where this case arose). Rogers added an arbitration clause to the contract for dispute handling and notified their customers of it, admittedly in a somewhat non-obvious manner, and further indicated that continued use of their service meant the customers agreed to the altered terms of the contract. In other words, had Rogers not made an effort to notify customers of this change, it seems unlikely the courts would have found in their favour. However, as they did place a notification on the home page which all service users were asked to check periodically, the courts found that notice was given.

What is perhaps, to me, most interesting about the Kanitz case is that it illustrates that the courts, with respect to matters of software, often make decisions that don’t really make that much sense to those of us with software training. Software is a complex business with complex issues that take many people their whole lives to understand (and we still often fail to grok these issues). When you take such a complex issue before a judge who likely does not have a software background, the judge will make decisions based upon what (s)he understands and that may or may not mesh well with the software realities. It will take time for the courts to iron things out - until then, expect erratic rulings regarding EULAs with the courts sometimes coming down in favour of the vendors and sometimes in favour of the clients. These decisions will be further complicated by the international nature of the software industry and the “conflict of laws” that occurs when parties to a dispute operate in different countries or make agreements in different countries.

Consider the landmark English Court of Appeal case in Parker v. South Eastern Railway Co. (1877). Here the plaintiff checked a bag in excess of 10 Pounds Sterling (English money) which was lost. A disclaimer on the ticket stub indicated the railway would not be responsible for the loss of any bags over that amount. The judge’s ruling, I believe, sets the tone for these types of agreements with “The plaintiff was certainly under no obligation to read the ticket, but was entitled to leave it unread if he pleased … the real question, namely, whether the railway company did what was reasonably sufficient to give the plaintiff notice of the condition”.

A more current case, Interfoto Picture Library Ltd. v. Stiletto Visual Programmes Ltd. (again, English Court of Appeal) contains the statement “The defendants [clients] are not to be relieved of that liablility because they did not read the condition, although doubtless they did not; but in my judgment they are to be relieved because the plaintiffs did not do what was necessary to draw this unreasonable and extortionate clause fairly to their attention”.

At least in England, Canada and other commonwealth nations, it would seem that EULA agreements are, like any contract, subject to assessments of what is reasonable and fair. Those in power cannot abuse that power and those in power must make sure that they bring to the attention of the other party particularly onerous clauses. The question that, to my knowledge, has not been properly addressed although is alluded to in Kanitz is whether a simple click on an accept button for an entire EULA is sufficient evidence that the vendor brought onerous conditions to the clients’ attention. I would suggest that it is not sufficient but I am not the court and have no idea how a court will eventually rule, if one has not already.

I am sorry to U.S. readers that I have little information on U.S. cases but, as the U.S. courts pay little attention and give little deference to foreign courts, it is not unsurprising that foreign courts give little deference and pay little attention to the decisions in U.S. courts.

DISCLAIMER; This information is provided merely as background information and is not intended as legal advice in any way, shape or form. The author does not claim it to be either an accurate or even adequate coverage of the issues at hand.


#37

EULAs… “sigh” :frowning:


#38

reminds me of a software cd i have which says and i quote “Breaking this seal indicates your acceptance of the license agreement contained in this product”, the license agreement is on the cd! so you can’t read it without agreeing to it.


#39

I agree that nobody reads it, but we (as software developers) need to put it in every setup. Or there is other way to do this thing?


#40

Get rid of the EULA. Start now.
A more viable solution (from a technical, not a lawyers POV) would be: The EULA has to show a summary of the core points that fits into one text box w/o scrollbars or other means of wrapping, in at least a 12 pt font, and understandable by what has to be rated as an average customer. If we can (strive to) design software that can be used by people with a minimum of (computer) knowledge, why shouldn’t lawyers do the same for legalese?
But this won’t happen as long as lawyers (even in-house in a lot of companies) are allowed to take legal as well as real entities on the leash and make their own set of rules to be forced upon everyone. It’s a distributed, subtle abuse of power that has to stop or collapse somewhen, but for that it probably has to get much worse yet… What? Yes, I’m a pessimist on that point :frowning: