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EULA Nasties
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By Ed Foster, Section Columns
Posted on Thu May 13, 2004 at 12:23:02 AM PDT
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Mirror, mirror, on the wall, who has the ugliest EULA terms of all? Just in case the mirror's not talking, we're going to leave it up to you to decide in my latest weblog poll.
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As the first step in our quest for fair terms, I asked readers to help me collect the worst license agreement language they've seen. Not wanting to be the only judge of this reverse beauty contest, I've winnowed it down to a dirty half dozen. Now it's up to you to look them over and cast your vote for the unfairest of them all in the poll in the lower right-hand column of this page.
Quite a few readers pointed out what I call classic sneakwrap terms - the ones where the license says you have to keep checking the vendor's website to see if they've made any changes. But one reader pointed out how the Wal-Mart Credit Card usage agreement takes this concept one better. At least you don't have to keep checking, because you've already agreed to all future changes:
By using the Site or downloading materials from the Site, you agree to abide by the terms and conditions set forth in this notice as well as all other policies described in the Site. If you do not agree to abide by these terms and conditions or any future terms and conditions, please do not use the Site or download materials from the Site.
I was rather surprised by the number of readers who pointed to Pinnacle Systems and the license agreement for its Studio Version 9 product. Several parts of the EULA raised questions (and unfortunately I can't find an HTML version of the whole thing), but its provision for automatic downloading of DRM upgrades was what seemed to trouble readers the most:
You acknowledge and agree that in order to protect the integrity of certain third party content, Pinnacle and/or its licensors may provide for Software security related updates that will be automatically downloaded and installed on your computer. Such security related updates may impair the Software (and any other software on your computer which specifically depends on the Software) including disabling your ability to copy and/or play "secure" content, i.e. content protected by digital rights management.
Speaking of DRM, some of the worst terms we've seen over the last year have come from the pay-per-tunes online music services. Considering that the whole idea of these services is to give people a legit alternative to peer-to-peer music downloads, I'd have to say the most hypocritical provision is this one from
Musicmatch's terms of service:
It is your responsibility, not Musicmatch's, to ensure that any material that you record on CDs using the Musicmatch Jukebox CD Recording function does not violate anyone's copyright. Please note that there may be more than one copyright involved in any song--the lyrics, the music and the performance, for example, may each have a separate copyright. You are responsible for getting any necessary permission and paying any necessary licensing fees for the music or other material you choose to record. If you violate the copyright laws, there may be fines or criminal charges brought against you, even if you don't get any commercial benefit from the illegal copies. You agree to hold Musicmatch harmless from your violation of copyright laws by your use of the CD Recorder.
Of course, no list of EULA nasties would be complete without a contribution from those fun-loving legal eagles in Redmond. Readers had plenty of Microsoft candidates, including some of the old classics like "no disparaging Microsoft." But sentiment seemed to run strongest over the anti-Open Source language in its licenses for its developer products, such as the
Microsft Visual C++ Toolkit 2003 EULA:
If you use the Redistributables, then in addition to your compliance with the applicable distribution requirements described for the Redistributables, the following also applies. Your license rights to the Redistributables are conditioned upon your not (a) creating derivative works of the Redistributables in any manner that would cause the Redistributables in whole or in part to become subject to any of the terms of an Excluded License; and (b) distributing the Redistributables (or derivative works thereof) in any manner that would cause the Redistributables to become subject to any of the terms of an Excluded License. An "Excluded License" is any license which requires as a condition of use, modification and/or distribution of software subject to the Excluded License, that such software or other software combined and/or distributed with such software (x) be disclosed or distributed in source code form; (y) be licensed for the purpose of making derivative works; or (z) be redistributable at no charge.
One company that can almost match Microsoft for its history of sneakwrap achievement is McAfee. After all, it's the only company that's ever defended a EULA-based "no publishing reviews of our product without permission" censorship clause in court. (Fortunately, McAfee lost that one.) And more recently we saw how it uses "evergreen" clauses in its license agreements to re-subscribe customers automatically. But one part of the McAfee EULA I'd missed was this declaration that their privacy policy is meaningless:
The Company publishes a privacy policy on its web site and may amend such policy from time to time in its sole discretion. You should refer to the Company's privacy policy prior to agreeing to this Agreement for a more detailed explanation of how your information will be stored and used by the Company. The Company's privacy policy is provided as a courtesy for informational purposes only and contains statement of its present guidelines and goals with respect to collection, retention and use of data the Company may obtain from your purchase or use of the Software. The Company does not make any and hereby disclaims to the maximum extent allowed by law any and all covenants, representations and warranties with respect to its compliance with the statements of intent contained in the Company privacy policy.
But sneaky sneakwrap is one area where the little software companies don't always have to take a backseat to the big guys. Since Man's Best Friend Software has now removed the remarkable prohibition against criticizing the company that I
recently examined, I will instead suggest we consider the anti-chargeback provision in the license for the company's The Breeder Standard 2003 product:
You agree, if purchasing by credit card or charge card, that you permanently and irrevocably waive any and all right to cause a "chargeback" (that is, a disputed, reversed or contested charge) against this purchase for any reason whatsoever against Company or other reseller of this license, effective as soon as you receive registration code(s) from the Company, open the envelope containing the program disk or otherwise install or use the Software. You agree that, if you institute such a "chargeback", it constitutes a material violation of this license, and damages Company in ways impossible to calculate, and with long-term adverse effects to the Company. Therefore, you agree to pay, and Company agrees to accept in compromise, for each chargeback you may issue or directly or indirectly cause to be issued against company, the amount of EIGHT THOUSAND DOLLARS ($8,000.00) to Company (or the party selling you this license), as liquidated damages and not as a penalty. You expressly confess, in the event of such a "chargeback", that such chargeback constitutes fraud and confess such fraud. You agree to pay all costs incurred by company or the seller of this license in collecting these amounts.
So now it's up to you to cast your vote in the righthand column, and post your comments below as to why you voted the way you did. Before we take on the more complex task of deciding what we think fair terms should like, let's see what we think is the unfairest of them all. |
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