The need for a fair End User Licence Agreement

There is a directory (or “folder” if you prefer) on my computer called “EULA”. In it is a text file copy of every End User Licence Agreement (EULA) I have “agreed” to for the software installed on the PC. The term “agreed” is in quotes, because I have yet to see an EULA which is presented with a check box labelled “I agree under duress” or “I don’t really agree, but I have no choice”. It is only an agreement in the loosest of meanings.

I feel I must be one of the few consumers of software who actually reads this long legal mumbo-jumbo. Due to the similarity of most EULAs I tend to “skim-read” them these days – more attuned to looking for differences. I suspect some ISVs actually copy their EULA from somewhere else and modify it to suit. (I suppose that EULAs are protected by copyright. I wonder if anyone has ever been sued for copying a EULA?) For ISVs developing software for the Windows platform, this would most likely mean the EULA is based off Microsoft’s.

Out of respect for their closest neighbours (i.e Canadians and Mexicans) Microsoft often include a Spanish and/or French section in their EULA. This raises an issue: What happens if the conditions set out in a foreign language differ from the English version of the EULA? Do these differences apply to me, even though I cannot read what is written? Maybe I didn’t read enough George Orwell, but at least in this case, I trust Microsoft to have done “the right thing” here and not purposefully changed the terms in a foreign language for their own benefit.

EULAs are currently biased in favour of the software producer. The customer pretty much signs away their entire recourse of legal action by simply installing the software. Listed in ten commandment style simplicity (minus thee-s and thou-s), here is a fairly standard EULA:

  1. You are allowed to make one copy of the software for back-up purposes.
  2. You have bought “a licence” to use the software. You have not bought “the software”.
  3. You are not allowed to “reverse engineer” the software.
  4. You are not allowed to perform “benchmark testing” against other similar products without the software producer’s explicit permission.
  5. You acknowledge that the software may not work and will not sue us if it doesn’t.
  6. You acknowledge that the software may not be suited to your purpose.
  7. You acknowledge that this software may cause you to lose money – and you won’t sue us if it does.
  8. If local law means the software producer can’t enforce this “no sue” policy, you can generally only sue them for what the software cost you to purchase.

Where the software comes with “samples” – be they audio sounds, video material, “sample templates” of documents or source code for a compiler, the EULAs tend to take two approaches. Either:

  • You can’t use the samples in your own commercial works.
  • You can use them if you alter them sufficiently for it to be deemed you have “added value” to their original form.

Now some of these points are fair enough. The right to protect your own intellectual property and source of income is understandable. But abdicating all responsibility for the software failing upon the user is a cop out. It promotes an industry that can quite simply be as reckless as it wants with the quality of its wares. An agreement implies some sort of mutual consent. But what a EULA represents is what the customer has to forgo. For the equation to be made fair, the software manufacturer should really indicate what it will do to fulfill their obligation to the user. Until government legislates this, the “fair EULA” is nothing more than a dream of disgruntled software users.

Like most things in life, this is not a “black or white” issue. The correct course of action probably has a distinct shade of grey. I am not sure whether the industry will ever adopt a fair EULA or whether governments will ever act to put one in place. Both parties stand to lose out big time. Abandoning “the reckless” approach will probably mean the end for some small time ISVs and somehow computing will be worse off without their endeavours (regardless of how buggy they may or may not be). But the law should always be there to protect the weak and/or innocent.

I am still contemplating what I feel would constitute a “fair EULA”, so that will have to be a topic for another day.