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What's hiding in the Ts and Cs?

Posted on 12 Feb 2009 at 12:01

Some in the software publishing industry don't think there's a problem with EULAs at all. Take Roger Greene, founder and CEO of Ipswitch. He told us that in most cases, "EULA terms are so similar that reading and understanding a EULA is unnecessary. Most people know that they may not make or distribute copies of their purchased software." Mind you, he also told us that if anyone "egregiously violated our EULA, we would take legal action".

Legally speaking

One of the biggest concerns with EULAs is that much of the time there's no easy way to review them before you've purchased the software concerned. Downloadable software can point you to a copy of the agreement online, but what of a shrinkwrapped box bought in a store? As the NCC report revealed, often there's no mention of the EULA, and not even a pointer to a website to read it before buying the box. According to Kit Burden, head of the technology and sourcing group with DLA Piper, this is unlikely to change. "For the software providers, the cost of outlining the EULAs in advance on product packaging or in-store far outweighs the potential costs of consumer complaints or legal action," he says, adding "it simply isn't in their interest, nor are they legally obliged, to change their means of sale".

So where do you stand as a consumer if you buy shrinkwrapped software and then discover you disagree with the EULA and want a refund? Paul Gershlick, a legal expert and partner at Matthew Arnold & Baldwin, said that the "law is uncertain in this area because it's never been properly tested". Which creates something of a dilemma, since EULAs are thought to be enforceable, despite often only being accessible after purchase. "Either the terms are unenforceable or the customer should have the right to return the software upon seeing the terms," Gershlick said. Try telling that to the shops that baulk at providing refunds for opened software that could easily have been copied before the return.

Urban myth would have it that you can rewrite the EULA and email it to the publisher, and if they don't respond you have a valid licence for the software under your own terms. The lawyers at Wedlake Bell aren't impressed, however, and informed us that under English law "silence does not normally constitute consent". The publisher would need to accept the revised terms to legitimise them, and the courts would most likely rule that the consumer should have stopped using the software if the publisher hadn't explicitly agreed to the revised conditions of use.

A time for change?

Although it's easy to think that the "stupid EULA" debate is all a bit of a laugh, there's a serious side to it. Think how spyware and adware can be delivered courtesy of the bundled application, and the obfuscation of a cleverly worded EULA that gives the software publisher permissions to install that unwanted additional software. There have even been cases of spyware that use the EULA to prohibit antispyware organisations from downloading, running or examining the software in question. A reminder of why you shouldn't click through those "I agree" buttons willy-nilly.

While most licence agreements are pretty fair and not malicious in intent, most of them are also written in a legal language that often precludes the layman from realising it. The FAST lawyers at Wedlake Bell, not surprisingly, disagree. They told us that "anyone who understands written English should be able to understand the great majority of a typical EULA contract". However, Phil Heap from FAST Corporate Services, which has a mandate to promote the legal use of software, told us that "EULAs do need to be simplified, but we must be careful not to affect the rights of the publisher or the IP holder", adding that he knows of no "collaborative industry groups or bodies really taking any lead" with regard to clarifying EULAs.