Windows Secrets Newsletter • Issue 110 • 2007-06-07 • Circulation: over 400,000

By Scott Dunn For at least a decade, InfoWorld veteran Ed Foster has been writing about the uses and abuses of end-user license agreements (EULAs). What began as examples of bad service agreements that were more funny than dangerous has become a crusade against complicated language and outrageous requirements and penalties. I talked to Foster about fighting the good fight.

Bad EULAs are anticompetitive

Foster’s chief gripe against EULAs is their anticompetitive nature.

"One of the most insidious clauses, and one that is always there, is the prohibition against reverse engineering," says Foster. "Every software uses it."

Foster cites the case of Blizzard v. BnetD, in which three programmers created an open-source software product that allowed users to play Blizzard games on their own set of servers rather than on Blizzard’s Battle.net service. In this case, the court stood by the EULA and suppressed the BnetD software, even though (as Foster reported), it does not violate any copyright.

The problem is that "the EULA doesn’t define reverse engineering. It just stops you from studying the product to make a better one — even if you don’t look at the code," says Foster. "Just looking at what the software does can be considered reverse engineering."

EULAs also censor consumer reviews

Other EULAs attempt to censor users from publishing evaluations of the product. For example, a few years ago, Foster documented a clause in the McAfee VirusScan license agreement that stated, "The customer shall not disclose the results of any benchmark test to any third party … and will not publish reviews of the product without prior consent from Network Associates."

Fortunately, New York Attorney General Elliott Spitzer took McAfee to court and won.

That, however, has not stopped others (including Microsoft) from trying the same thing: The EULA for Vista Home Premium states that you have the right to conduct benchmark testing and that "you may disclose the results of any benchmark test of those components, provided that you comply with the conditions set forth at [Microsoft's Web site]."

In his column, Foster noted that although the terms are relatively reasonable, the EULA restriction itself is tied to a specific Web page that can be changed at any time. Moreover, he notes that EULAs for other Microsoft products, like SQL Server or Visual C++, have been using censorship clauses for years.

"Those clauses have never been enforced by the courts that I know of," Foster told me. "But they still have a chilling effect. Who wants to be the one to challenge Microsoft?"

Bad EULAs are anticonsumer

EULAs aren’t just bad for the software industry. "The basic EULA mentality makes it hard for the customer to know what the real deal is," Foster says. "What are the real terms of the deal? Do you have a warranty? What kind? Are there any limitations on usage? Can you resell it?" Consumers are expected to read thousands of words of legalese just to know their rights and limitations.

As an example of anticonsumer behavior, Foster recalls the EULAs in the case of Gateway Computers, which was sued in 1995 for selling a computer with components that were not as advertised. But as he noted in his May 2005 article, the arbitration clause of the license agreement required the parties to pay a nonrefundable US$2,000 to involve an arbitration body in France — more than the original product was worth.

EULAs attempt to legitimize spyware

"Probably the most outrageous example is the whole spyware phenomenon," Foster says. "If spyware had always simply been the criminals, the guys in Russia purveying software, it never would have become the problem it did."

According to Foster, spyware became a problem because companies like Claria/Gator, WhenU, and DirectRevenue use EULAs to gain customer “consent” when installing pop-up adware.

Unfortunately, most consumers aren’t aware of the license or what its language means when they click their agreement to the license and installation.

One egregious example is the case of FriendGreetings.com, which required users to download and install a reader to see its electronic greeting cards. Customers had to consent to two seemingly harmless license agreements, the second of which stated that the company would be using the customer’s Outlook contact list to send encouragements to download the software.

As if accessing your Outlook contact list wasn’t enough, Foster reported in a Nov. 1, 2002, article that the software "also apparently deposited several spyware/adware agents that needed to be sought out and eradicated before they caused trouble."

In a Dec. 2004 article on this subject, Foster composed what he would consider an honest adware notice:

• "Warning: This program will display innumerable pop-up ads over content you might wish to see. It will watch what you do on the Internet and report that information to people of questionable motives. It might automatically download additional software from other parties that will also display ads and/or collect information about you. Installing this program will thus inevitably degrade the performance of your computer until it’s a useless piece of garbage. Do you agree, bozo?"
  

Are EULAs even necessary?

Foster has never understood the need for a license agreement. "Copyright law applies to software whether you have a EULA or not," he points out. "You don’t need a EULA to keep people from infringing on your copyright. The documents are trying to make us all become lawyers in order to buy software. At the same time, it’s not really doing anything to protect the basic copyright on the software, which would be there regardless."

His contention is supported by Circular 61 from the U.S. Copyright Office, which states that “copyright protection extends to all the copyrightable expression embodied in the computer program.” Naturally, some aspects of software (like ideas and logic) cannot be copyrighted, but that holds true for books and all other copyrightable products as well.

Foster has written more on this topic on his Gripe Line site.

What can be done?

Lucky for us, Foster has not sat around waiting for others to improve the situation. He belongs to Americans for Fair Electronic Commerce Transactions (AFECT), which is associated with the FairTerms Web site, and has joined forces with those trying to block industry-supported legislation like UCITA (Uniform Computer Information Transactions Act) that would give EULAs even more power.

In addition, he started a Wiki site with a EULA library, where users can post examples of good and bad EULAs. He has also drafted a FEULA, or fair EULA, to serve as a model for software developers.

But what should the rest of us do? I asked Foster what he thought of EULA analyzing tools, such as the free EULAlyzer from Javacool Software. EULAlyzer looks for keywords and attempts to alert the user to undesirable behavior or unexpected requirements in the license. "Conceptually, I think it’s certainly a good idea," he said. But, he adds, it depends on what issues the analyzer is looking for.

In addition, "if the EULAlyzer finds one way of phrasing it, they [software companies] will find another way to phrase it. They can make them as obscure as they want to, and they do."

Another way to avoid problem agreements is to use open-source software, a practice Foster has advocated in his column:

• "Open-source equivalents for most major types of productivity applications are available and mature enough to use; the rest are maturing quickly. Some are surpassing their closed-source counterparts," he writes. "I pretty much never buy software any more myself, despite having a Windows box — where possible, I use free software, with the only real exception being blockbuster games."
  

Consumers need to be more vocal. "I don’t believe everyone should always be forced to read the EULAs they encounter in daily life," Foster told me. "We’d spend most of our lives reading obscure language. If you see a company that’s asking you to read 10,000 words of gobbledygook, tell them no, you don’t want to. As consumers, try to push back."

Scott Dunn is associate editor of the Windows Secrets Newsletter. He is also a contributing editor of PC World Magazine, where he has written a monthly column since 1992, and co-author of 101 Windows Tips & Tricks (Peachpit) with Jesse Berst and Charles Bermant.