Unfair EULA's
A recent study conducted by Britain's National Consumer Council has questioned the End User License Agreements (EULA's) of 17 software companies, including Microsoft, Adobe, Apple, McAfee, Corel and Symantec.
14 out of the 25 products surveyed did not mention on their packaging that installation requires the user to accept a license agreement. I find this odd because one of the first things any installer shows the user is the EULA, and unless he clicks the "Accept" button, the installation does not continue. So obviously the product cannot be installed unless the EULA has been accepted. But I guess they were pissed with the fact that Kaspersky Anti-Virus 6 had a seal on the CD case with instructions to read an enclosed paper copy of the licence agreement before installing software. Actually, I see no problem with that either. Of course, if Kaspersky declines to give a full refund to a customer who does not agree to the EULA after openning the CD case, then they need to be given a lesson in consumer rights. That's precisely why I believe that the EULA should be freely available online for a prospective customer study and analyse before he decides to make a purchase. At SYCODE, we have a link to our EULA right next to the product download link.
The report goes on the suggest that even if the EULA was available prior to purchase, the legal jargon in it makes it hard for consumers to understand their rights and responsibilities. I think that is taking it too far. What do you expect? A beautiful piece of prose written for a 10 year old? Law, by definition, is complicated. If it were that simple, we would not need lawyers, now would we? It gets even more complicated when you are licensing something as opposed to buying it.
The report also suggests that the terms in the EULA are designed to protect the interests of the software companies to the detriment of end users. It cites Symantec's EULA wherein Symantec gives itself the power to suspend it's Online Backup service for a user's failure or suspected failure to comply with their EULA. To take things further, Symanted is not obliged to maintain any of the user's backups or transfer/migrate the same to any other backup service. I tend to agree. This seems heavily tilted towards Symantec, especially the term "suspected failure".
The full report can be downloaded here (PDF: 675 KB)
Contrary to popular belief, there are people who do take the time to read the EULA before placing their order. From my experience, very often these people are the ones who are interested in taking their work on the road and want to have the software working on their desktop in office and their laptop as well. Our EULA allows that, but still prospective customers contact us to seek clarification on that particular provision and we make it a point to answer their queries to their satisfaction.
A common argument is that the end users cannot individually negotiate the terms of the EULA and are forced to accept it. For fun, let us imagine that Carl Bass takes leave of his senses and decides that he wants to negotiate his EULA with all nine million Autodesk customers. I will leave you to calculate the legal bill that such negotiations will result in. And while you are at it, take a wild guess as to who will eventually be paying for that bill.
14 out of the 25 products surveyed did not mention on their packaging that installation requires the user to accept a license agreement. I find this odd because one of the first things any installer shows the user is the EULA, and unless he clicks the "Accept" button, the installation does not continue. So obviously the product cannot be installed unless the EULA has been accepted. But I guess they were pissed with the fact that Kaspersky Anti-Virus 6 had a seal on the CD case with instructions to read an enclosed paper copy of the licence agreement before installing software. Actually, I see no problem with that either. Of course, if Kaspersky declines to give a full refund to a customer who does not agree to the EULA after openning the CD case, then they need to be given a lesson in consumer rights. That's precisely why I believe that the EULA should be freely available online for a prospective customer study and analyse before he decides to make a purchase. At SYCODE, we have a link to our EULA right next to the product download link.
The report goes on the suggest that even if the EULA was available prior to purchase, the legal jargon in it makes it hard for consumers to understand their rights and responsibilities. I think that is taking it too far. What do you expect? A beautiful piece of prose written for a 10 year old? Law, by definition, is complicated. If it were that simple, we would not need lawyers, now would we? It gets even more complicated when you are licensing something as opposed to buying it.
The report also suggests that the terms in the EULA are designed to protect the interests of the software companies to the detriment of end users. It cites Symantec's EULA wherein Symantec gives itself the power to suspend it's Online Backup service for a user's failure or suspected failure to comply with their EULA. To take things further, Symanted is not obliged to maintain any of the user's backups or transfer/migrate the same to any other backup service. I tend to agree. This seems heavily tilted towards Symantec, especially the term "suspected failure".
The full report can be downloaded here (PDF: 675 KB)
Contrary to popular belief, there are people who do take the time to read the EULA before placing their order. From my experience, very often these people are the ones who are interested in taking their work on the road and want to have the software working on their desktop in office and their laptop as well. Our EULA allows that, but still prospective customers contact us to seek clarification on that particular provision and we make it a point to answer their queries to their satisfaction.
A common argument is that the end users cannot individually negotiate the terms of the EULA and are forced to accept it. For fun, let us imagine that Carl Bass takes leave of his senses and decides that he wants to negotiate his EULA with all nine million Autodesk customers. I will leave you to calculate the legal bill that such negotiations will result in. And while you are at it, take a wild guess as to who will eventually be paying for that bill.
posted by Deelip Menezes at
9:47 AM
2 Comments:
Deelip, I doubt that anyone expects a company like Autodesk to negotiate license agreements with every customer. I've long advocated for a "union of end users" that has the political muscle needed to negotiate EULA terms on behalf of its members. An organization like AUGI could potentially serve in such a capacity if it restructured its business model to represent the membership rather than the sponsors. Otherwise, the only choice is government intervention, which almost never turns out well.
By
Owen Wengerd, At
9:19 AM, February 21, 2008
Owen, AUGI 'could' serve in that capacity but restructuring is not the only thing they need to fix. Not one of my communications with AUGI have even been acknowledged let alone acted on; even my emails to Bass are answered by a 'fellow' called Gilbert Tobin Lawyers ;-)but AUGI cannot even muster an automatic email reply to a member?
I do and will represent users in matters relating to Subscriptions and EULA if asked to do so.
No EULA needs negotiating if the 'person(s)' drafting them uses and applies - good business practice & - commonsense.
The EULA that have gone wrong are those that seek to go beyond what is reasonable. There was a little to complain about in earlier Autodesk EULA but when Autodesk chose to use it as a battering ram they crossed a line and rendered theirs void.
Your right about legislation; we have started to move down this road only because the vendors will not be reasonable and discuss the issues openly.
All the issues surrounding EULA are so easy to solve CEO's of software vendors should be embarrassed that they and their staff have failed to do so.
Finally, if 'shrink wrapped Chameleon' EULA are non-negotiable they are not contracts!
By
Anonymous, At
6:28 AM, February 22, 2008
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