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« Speaking of Which... | Main | Notable + Quotable »

February 19, 2005

How Does Your EULA Suck?

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Annalee Newitz counts the ways in a brilliant new white paper that provides example after example of stomach-turning end user license agreements (EULAs), explaining precisely how raw the deal is for anyone who clicks "I agree." Below, the paper's list of common EULA terms. You'll get the gist, but do read the whole thing. It's a pleasure to read (but for the stomach-turning part).

Excerpts [formatting and emphasis, mine]:

  • 1. Do not criticize this product publicly. Snip: "Many agreements on database and middleware programs forbid the consumer from comparing his or her product with another and publicly criticizing the product. ...Not only do terms like these prevent people from engaging in free speech, they also undermine fair competition in the marketplace. Microsoft, for example, can publish benchmarks comparing its database products to open source alternatives. And yet their EULA terms suggest that the authors of open source products cannot publish the results of their own comparisons. What this means is that the only information consumers have access to is extremely one-sided and potentially biased."
  • 2. Using this product means you will be monitored. Snip: "Many products come with EULAs with terms that force users to agree to automatic updates -- usually by having the computer or networked device contact a third party without notifying the consumer, thus potentially compromising privacy and security. ... Agreeing to [a McAfee EULA] seems to mean you may be a McAfee subscriber forever: "Upon expiration of your subscription to the Software, the Company may automatically renew your subscription to the Software at the then prevailing price using credit card information you have previously provided."
  • 3. Do not reverse-engineer this product. Snip:" 'Reverse-engineering,' which is often forbidden in EULAs, is a term for taking a machine or piece of software apart in order to see how it works. ...Without reverse-engineering, consumers are unable to tailor software and devices to their liking -- they can't create a custom version of a gadget so that it can work with other electronics they own. They can't turn off features that they don't like. Even worse, EULAs that forbid reverse-engineering also threaten healthy competition in the marketplace by forbidding people from creating innovative new products that enhance older ones."
  • 4. Do not use this product with other vendors' products. Snip: "Vendors use EULAs to make consumers agree that they won't use products that evaluate the performance of the software they've bought, or that can be used to uninstall all or part of the program. ...Kazaa echoes these terms when it warns users that they can't use products that might 'monitor or interfere' with the operations of Kazaa's software...What this means is that you can't run any programs (like packet sniffers) that analyze the performance of Kazaa, evaluate what it's doing, or change the way it operates on your computer. Kazaa reserves the right to tell you what you can and cannot do with the program on your own machine."
  • 5. By signing this contract, you also agree to every change in future versions of it. Oh yes, and EULAs are subject to change without notice. Snip: "Put simply, this means that when you install iTunes, you are not only agreeing to all the onerous terms in the box, but you are also agreeing to future terms that may appear in the iTunes Terms of Service months or years from now. These terms are subject to change without notice, and you don't even get a chance to click through this future 'contract' and agree."

  • 6. We are not responsible if this product messes up your computer. Snip: "Clicking yes on EULAs containing this common clause means that the consumer cannot file class-action lawsuits against the vendor for faulty products, or for products that do not do all the things that the company advertised they would. This kind of agreement would seem absurd if applied to other kinds of consumer electronics. If you buy a microwave, there's a large body of common law and statute that gives you rights against its manufacturer if it blows up, burns you, or singes your countertop. ... But if you buy a piece of software, the EULA often disclaims all that prior law, without putting alternate consumer protections in its place."

Comments (5) + TrackBacks (0) | Category: IP Abuse


1. Rolo Timassie on February 19, 2005 4:58 PM writes...

You categorize this issue as "IP Abuse," but it really has nothing to do with IP or software and everything to do with standard form contracts. Take a look at the terms and conditions that come with your refrigerator, or with your bank account, or your credit cards, your rental car agreement, the do-it-yourself bookcase you just bought, your TV set, your clock radio. They've all got stuff like this, and you agreed to it when you bought the item and took it home and used it.

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2. Donna Wentworth on February 19, 2005 5:52 PM writes...

Excellent point.

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3. Seth Finkelstein on February 19, 2005 8:28 PM writes...

Rolo: It's an IP-abuse issue to the extent that copyright law is used to create what would otherwise be an unimposable restriction, via the "legal hack" of this-is-licensed-not-sold.

The last time I looked, my clock radio did not come with a notice saying "This Appliance is *rented*, not *sold*, and by plugging it in, you agree to the following ..." (though I wouldn't be surprised if companies begin to try that!). In general, for mass-market goods, the most they can get away with in that area is limited warranties, and sometimes not even that.

There's form contract issues, true - but there's also contract of adhesion issues, which shouldn't be assumed valid (though are sadly being ruled valid :-( ...).

Permalink to Comment

4. Donna Wentworth on February 20, 2005 1:53 PM writes...

As Rolo says, this is about contract. But as Seth points out, it's about contract where it intersects/jousts with intellectual property rights. Two issues: are these/should these contracts be upheld as valid; can these/do these contracts trump federal copyright law?

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5. Neo on February 21, 2005 12:48 AM writes...

Aren't such EULAs grounds for revocation of the software's copyright? Isn't there a doctrine of "copyright abuse" where it's unlawful to levy terms and conditions of access to a copyrighted work that expand your rights far beyond what copyright itself would give you? And the penalty can be loss of the copyright?

Most EULAs attempt to enforce restrictions that go way beyond what copyright alone would allow. Censorship clauses for example. There are noncommercial clauses that don't just disallow people selling copies of software on compilation CDs, but disallow people selling *their own creative works* if they used the software to create them -- works in which the software author has no plausble claim of rights, and therefore under copyright law alone couldn't restrict or control. These overreaching EULAs look like textbook definitions of copyright abuse because the EULAs are presented as terms and conditions of access to a copyrighted work.

Why is the doctrine of copyright abuse not being applied?

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