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10/26/2005
10:02 AM
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EULA Be Sorry Someday

Most software licenses serve two purposes: They demand the right to do crazy things, so that the slightly less crazy things they really want to do look reasonable; and they discourage users from thinking too hard about this fact. There's a way to solve the second problem -- and if you own or manage a business, thinking about the first problem might be a very good idea.

Most software licenses serve two purposes: They demand the right to do crazy things, so that the slightly less crazy things they really want to do look reasonable; and they discourage users from thinking too hard about this fact. There's a way to solve the second problem -- and if you own or manage a business, thinking about the first problem might be a very good idea.JavaCool Software offers a free tool, the EULAlyzer, that parses these little bundles of corporate insanity and alerts you to things you may think twice about agreeing to. (Heads-up courtesy of Cory Doctorow's Boing Boing post.) Or, since most of us will accept the agreement anyway and ignore it, at least we'll know which limbs, internal organs, children, and other personal assets we're signing over to which software vendors.

What kinds of things might the EULAlyzer turn in your software? Check out Tom's Guide contributor Aaron McKenna's recent column (discovered via a fascinating Slashdot discussion on the topic), where he provides EULA examples that you have to see to believe -- and then you'll wonder if the people who concoct this stuff work in offices with padded walls.

My favorite example (and one which came as no surprise) is this gem from Apple Computer's service agreement for iTunes:

Apple reserves the right, at any time and from time to time, to update, revise, supplement, and otherwise modify this Agreement and to impose new or additional rules, policies, terms, or conditions on your use of the Service. Such updates, revisions, supplements, modifications, and additional rules, policies, terms, and conditions (collectively referred to in this Agreement as "Additional Terms") will be effective immediately and incorporated into this Agreement. Your continued use of the iTunes Music Store following will be deemed to constitute your acceptance of any and all such Additional Terms. All Additional Terms are hereby incorporated into this Agreement by this reference.
In other words: Apple can change this agreement to say anything, at any time, and you have already agreed to it. This is how Apple justifies iTunes "updates" that cripple existing features or whack disagreeable third-party apps (including iTunes 6, which you should avoid for the time being if you use jhymn to make your purchases interoperable with non-Apple players).

Other EULAs on McKenna's list are just as bad, and in terms of the actual demands they make, some are much worse. Among other things, they attempt to gag users who perform benchmarking tests (Microsoft); threaten users who want to know what a vendor's software is up to on their PCs (Claria); and demand the right to monitor users, access their systems, and install DRM software (Pinnacle). Perhaps the most surprising fact, after reading enough of these, is that no company has (yet) tried to impose an agreement that makes itself a secret!

Is this idiocy legal? Flip a coin: as McKenna notes, when judges look at EULAs, some frog-march the vendor out the door with a warning to stay off the drugs, while others have upheld them, usually with excruciatingly technical justifications.. Unless a EULA makes clearly illegal demands ( the term "first-born child" comes to mind), it's hard to say in advance and might depend upon the local jurisdiction or even upon individual judges.

Individual software users, however, should worry more about crossing a busy street than about EULA terms, even though 99 percent of us violate enough of these things before lunch to get us sued out of physical existence. Vendors will never do most of what they claim the right to do, nor will they ever consider doing most of it. Their real objective is to ensure smooth sailing for any number of smaller concessions, whether it's to stifle complaints about software updates with unpleasant surprises or to make a blogger think twice about publishing a negative review. Isn't that good news?

Actually, it is -- compared to the potential downside for business owners and mangers. If your company uses off-the-shelf software, it might be a very good idea to spend a little time with the EULAlyzer. Your company just might be on the hook for a lot of crazy things, to a lot of different software companies, with some appalling potential consequences. And while these, too, are unlikely to land you or your company in court, we all know what kind of havoc a single litigious software vendor can wreak when it decides to turn legalized extortion into a business model -- don't we?

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