In addition, my comments are from a consumer point of view were applicable consumer sale/contract laws applies. For a non consumer case, there is much more freedom to agree to things.

>"Fair" End User License Agreement, Version .90
>1. We grant you one license to install and use this software on a single computer. If
>you do not agree to the following terms of this license, please uninstall and remove
>all copies and return the product to us or our reseller for a full refund.

This is perhaps not relevant from a content point of view but more of a general EULA view. Here a right is granted, but for it to have any meaning, it has to either not exist before or have been taken away. In a standard case, when software is sold in, for example a store or over the net, there is no contract (usually) that remove the right to use or run the software. Similarly the copyright laws does not give use as an exclusive right to the copyright holder. In addition, most countries have copyright laws (including US) that make copies needed to run software as non infringing even without permission. Hence I have always had problems with the "grant of license".

But I assume the whole point of writing this fair EULA is based on the assumption that one need such a grant of right to start with and that any attempt to run or install software without a license is a copyright infringement. One thing I sometimes ponder over, is how I can run the install program to start with, before I have agreed to the EULA....

>2. You may install and use the software on a second computer that you own, but the
>software should not be in use on more than one computer at a time unless you
>purchase additional licenses.

This I see as a true extra right granted that would normally not be allowed through copyright laws.

> You may make a back-up copy of the software for
>archival purposes.

Isn't this specifically allowed through most copyright laws? I know it is by Swedish copyright laws and it is even stated as something that can't be revoked through contract (any such provision in a contract is thus always void).

> You may permanently transfer your license to use the software to another party,
>provided you do not retain any copies of the software and the party acquiring the
>software agrees to abide by this license.

Again, this should in part be allowed through laws similar through first sale doctrine, most copyright laws have provisions to consume the distribution right of the copyright holder after the first sale. I can see it as an extra right in some cases though, new copyright laws in at least Sweden have local consumption so that only goods bought inside EU (and their trade parties, a few extra European countries) will have the right consumed. This permission here would give that right to software bought outside EU (for EU citizens) as well.

Putting the requirement on the initial owner to make sure the next one agree to the EULA seems strange and will probably not be enforceable in many countries I would say.

>3. The software is protected by the copyright laws of the U.S. and other countries,
>and we retain all intellectual property rights in the software. You may not separately
>publish, sell, market, distribute, lend, lease, rent, or sublicense the software.
>However, this license is not to be construed as prohibiting or limiting any fair use
>sanctioned by copyright law, such as permitted library and classroom usage or
>reverse engineering.

To be more "international" I would avoid writing a specific country. It is of course nothing wrong with such a statement, but it does not, in my opinion, add anything to mention a specific country.

Not sure how to interpret the "separately" though. Some of the listed things are things as one DO have the right to do, even the prior paragraph specifically mentioned that transfer was OK, or am I misinterpreting the "separately"?

>LIMITED WARRANTY
>
>4. We warrant that the software will provide the features and functions generally
>described in the product specification on our website when you purchased it and in
>the product documentation. Media on which the Software is furnished, if any, will be
>free from defects in materials and workmanship.

Isn't this more of an information part? Many countries mandate it by various laws. In addition, I would remove "website". What about if you don't have a website? What about all other information (also mandated through laws even). Or is this EULA only meant for sales of software though websites? If so I can understand it but I would still say that other information should also be included.

>5. We have taken all reasonable steps to keep the software free of viruses,
>spyware, "back door" entrances, or any other harmful code. We will not track or
>collect any information about you, your data, or your use of the software except as
>you specifically authorize. We will not intentionally deprive you of your ability to use
>all features of the software or access to your data.

Although it is all very good things, I think this is again more of an informational point.

>6. We do not warrant that the software or your ability to use it will be uninterrupted
>or error-free. To the extent permitted by applicable law, we disclaim any implied
>warranty of merchantability or fitness for a particular purpose.

Is this standard typing? I would assume that if one does NOT write or give extra warranty, only those applicable by law apply, so why write it to start with? Trying to list everything one do NOT give or promise will otherwise turn out to something enormous.

>LIMITATIONS ON LIABILITY
>
>7. Your exclusive remedy under the above limited warranty shall be, at our option,
>either a full refund of the purchase price or correction of the defective software or
>media.

At least here in Sweden this is what consumer sale laws says. It is the sellers (you can request this in the shop you buy OR from the manufacturer) that decides what to do, but if they fail to fix the problems a few times, the buyer THEN have the right to revoke the sale and get the money back.

>To the fullest extent permitted by applicable law, we disclaim all liability for
>indirect or consequential damages that arise under this license agreement. Nothing
>in this agreement limits our liability to you in the event of death or personal injury
>resulting from gross negligence, fraud, or knowing misrepresentation on our part.
>
>GENERAL PROVISIONS
>
>8. If any part of this agreement is found to be invalid or unenforceable, the
>remaining terms will stay in effect. This agreement does not prejudice the statutory
>rights of any party dealing as a consumer.

This in my opinion is to vague and in part lazy. Typing up a whole bunch of things and then just say "if this doesn't work due to laws, forget it". One can of course require that consumers and others knows the laws, but then, trying to give impression of things being different is in many cases not allowed either and should not be permitted in contracts to start with, even having "if the law says otherwise, ignore it".

>9. This agreement will be governed by the laws, including Article 2 of the Uniform
>Commercial Code, of the state in which you reside. If your state has enacted the
>Uniform Computer Information Transactions Act (UCITA) or substantially similar law,
>said statute shall not govern any aspect of this agreement and instead the law as it
>existed prior to such enactment shall govern.

This would of course mostly work in the US only. One can typically not contract away law requirements, especially those that are worse to the buyer.

>10. This agreement does not supersede any express warranties we made to you.
>Any modification to this agreement must be agreed to in writing by both parties.

At least here in Sweden, contract law does not require any specific formality or special way to enter into a contract (exception are specifically mentioned ones, like for example selling a house requires the contract to be in writing and so on). Hence any way to enter a contract into, including oral, is valid (the fact that it is harder to prove some is another story though). Hence requiring changes to be in a specific way would generally be considered not enforceable. Similarly stating that this contract overrule others. The Swedish court (Marknadsdomstolen) that would handle this type of contracts have rules several times (I can give specific references in Swedish if anyone is interested) that the requirement to terminate a contract must be in writing to be not allowed and can't be used, just as an example.

In general, I think the FEULA is a good attempt, and if one look at it, it is mostly a clarification of things that often already is applicable through various laws, at least in some countries, perhaps the case is somewhat different in US, I really can't say and that some of those requirements are more needed). There is still a few points to look over though. Of course, I doubt any big software company would adopt it in any near future though.

I suggest changing the statement in item one to read "use this software on a single computer at a time". I also suggest changing the statement in item two to read "install and use the software on another computer that you own." This now allows items one and two to logically support each other, including the use of the software on multiple computers by the licensee within limits of fair use. It allows item two to further clarify item one and to restrict the usage in keeping with US copyright laws associated with printed materials.

You also will have to allow them to elect binding arbitration over courts.

Most will want to bar the use of the class action lawsuit.

While the effort is noble, the beta contract is tilted heavily towards the consumer.  If our society were not so horribly litigious, this might work.  However, with people running off to court every nanosecond over every little thing, companies need to protect themselves in order to stay in business.

I can hear the retort: "Well, if they treated us better, they would not need to protect themselves by contract.  But that is not the case.  Dish Network just got clobbered for a massive settlement, and even worse attorney fees, because their dishplayer 7100 receivers would sometimes freeze up from a software glitch and would require a "reboot."  This did not endanger anyone; it caused a 10-minute inconvenience once or twice a month on average.

Now people are trying to start another class action against them because they charge $4.95 per month for use of the DVR (think TiVO) feature on their model 721 receivers.  Dish Network sends over twice as much program schedule information to a 721 as to their "normal" units, justifying the cost.

This digresses a tad from my original point, but software companies will not accept agreements that put them at the mercy of people with a grudge and an attorney.

Do they overcompensate?  Hell yes!  Secret arbitrations presided over by private individuals and not an arbitration association like AAA or JAMS, requirements to bring all actions in the home state and city of the seller even if the seller has an office in the buyer's home state, and others.

California courts have held that Paypal's old user agreement (the new one is not any better) was designed to "preclude any meaningful challenge to its business practices" when they tossed it out.

This is a noble effort, but the big boys are not going to put themselves on the line for the very existence of their companies unless there is some reasonable way they can protect themselves from frivolous litigation.

Trivia question:  How many times was eBay (not Paypal) sued in 2004?

a. 100-500
b. 501-1000
c. 1001-2000
d. 2001-10000
e. more than 10,000

The answer is e.  Almost all of these suits were from angry sellers who had been kicked off eBay for ripping off their customers.