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EULAs Don't Have To Suck 233

Posted by Soulskill
from the could-have-fooled-me dept.
jfruhlinger writes "The ubiquitous EULA — reams of baffling text imposing draconian terms on software users — infuriate most Slashdot users and are routinely ignored by everyone else (until they suddenly cause trouble, of course). But it doesn't have to be that way. Several European countries are considering laws mandating user-friendly EULAs, and some companies provide them voluntarily."
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EULAs Don't Have To Suck

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  • Click-through GPL. (Score:4, Insightful)

    by Anonymous Coward on Thursday November 17, 2011 @02:47PM (#38088828)

    Routinely ignored.

  • by Anonymous Coward on Thursday November 17, 2011 @02:49PM (#38088854)

    Draconian, unethical, and immoral EULAs are just the natural extension of a political system that has long since been sold to the highest bidder.

    I had to sign a contract for employment that claimed company ownership of projects completed on my own time. I had already turned down all the other jobs and needed my income, so I had to sign it.

    It should be illegal to even write these types of contracts or EULAs, and it would be if not for our blindingly corrupt government.

    • by Moryath (553296) on Thursday November 17, 2011 @02:55PM (#38088916)

      No kidding.

      Anything created by lawyers, is not created for the public good. It is created deliberately confusing and inscrutable to further the goal of making more bullshit work for the leeches known as lawyers.

      There's an old saying that goes "ignorance of the law is no excuse." Lawyers have taken this to its logical extreme: they have made the law so byzantine, so inscrutable, that it's impossible to understand what the fuck the law SAYS without consulting a lawyer. Therefore, ignorance is the norm, and the lawyers prosper despite not contributing one single fucking good to the economy.

    • by Z00L00K (682162) on Thursday November 17, 2011 @03:24PM (#38089298) Homepage

      In some places the EULA:s may not be valid due to consumer laws. At least if you purchase as a private person. If you purchase as a company the EULA:s may still be valid.

    • by element-o.p. (939033) on Thursday November 17, 2011 @07:01PM (#38092106) Homepage
      While I agree with your major point...:

      It should be illegal to even write [draconian, unethical, and immoral] contracts or EULAs...

      ...I would like to point out that you did, in fact, have a choice: accept the contract, or do without the job. It's not much of a choice, admitted, but you did weigh the pros and cons of both options and decide to choose the option that sucked less for you in your circumstances.

      FWIW, my initial terms of employment were similar, but when I addressed my concerns to HR, they agreed to reduce the terms to something a little less draconian. Specifically, projects outside the scope of my employment, that do not compete with my employer and that are completed on my own time are mine. Work related projects, projects that might compete with my employer or that are created on company time...not so much. A second option would be to accept the contract for now since you apparently really needed the income, put your personal projects on hold, and continue to search for employment with a more reasonable employer.

  • by Omnifarious (11933) * <eric-slash&omnifarious,org> on Thursday November 17, 2011 @02:55PM (#38088914) Homepage Journal

    They are an attempt to form a unconscionable (in the legal sense) contract with thousands of people. And almost invariably they try to convince you that you have less rights than you do under the law. They are basically about eliminating fair use, because every one I've seen uses the leverage of copyright law.

    Now, if this were about terms of service, that would be something. I'm all for terms of service that are legible by ordinary human beings.

    • by sribe (304414) on Thursday November 17, 2011 @02:57PM (#38088958)

      And almost invariably they try to convince you that you have less rights than you do under the law.

      In essence, they are fraudulent "anti-warranty" documents.

    • by snowgirl (978879) on Thursday November 17, 2011 @04:16PM (#38089844) Journal

      They are an attempt to form a unconscionable (in the legal sense) contract with thousands of people.

      I don't think that they are unconscionable by default. Sure the vast majority (every single one?) that I've bothered to consult has been pretty draconian, but there is nothing inherent in the idea of a EULA that makes it unconscionable.

      I suppose this article is trying to point to the possibility that "hey, they don't have to be unconscionable, so why don't we start trying to fix it so that they're not!"

      • by Zironic (1112127) on Thursday November 17, 2011 @04:36PM (#38090098)

        They're non-negotiable contracts between unequal parties where the signature isn't even verified and the contract isn't presented until -after- money has changed hands. Nothing about them is conscionable

      • by Omnifarious (11933) * <eric-slash&omnifarious,org> on Thursday November 17, 2011 @05:19PM (#38090598) Homepage Journal

        I don't think that they are unconscionable by default. Sure the vast majority (every single one?) that I've bothered to consult has been pretty draconian, but there is nothing inherent in the idea of a EULA that makes it unconscionable.

        I am not a lawyer, but I do know this... The term "unconscionable" when referring to contracts has a very specific legal meaning. And by that definition, EULAs are inherently unconscionable. They can't help it. They don't allow negotiation of terms. They are 'agreed' to after money changes hands. The signature of the party who is under the most restrictions isn't even verified. They are, by the strict legal definition of the term, inherently unconscionable.

        Yes, the terms could be very nice. But whether or not the terms are good for the buyer doesn't actually strongly figure into whether or not a contract is considered 'unconscionable' from a legal standpoint.

        • by iamwahoo2 (594922) on Thursday November 17, 2011 @07:09PM (#38092238)
          I would like to add the further point to the parent that EULA are typically bartering with something that it does not own or control. That is "Usage Rights". As the software developer and distributor they own the copyrights and they own the physical media. When they sell it, they give up their ownership of the physical object and still retain copyright. If the user of the software is not asking to copy and distribute, then copyright is not at issue. Granted for a service company like Facebook, usage rights makes sense, as they are providing you with a service that you are using and the terms of that usage need to be clear, but for the vast majority of software available in stores, a person should be able to to purchase the software, not accept the EULA, and then continue to use the software without penalty. Denying a customer the ability to use the product because they did not accept this meaningless contract should be called what it actually is and that is a scam.
      • You can only see the contract after you have paid for it, and there is no clear procedure to get you money back.

        If that is not draconian, what is it? It doesn't matter what the contract says.

    • by Darinbob (1142669) on Thursday November 17, 2011 @06:05PM (#38091194)

      I actually liked the Borland licenses. Simple and easy to understand with rights preserved for both producer and consumer.

  • Step 2 (Score:4, Insightful)

    by Anrego (830717) * on Thursday November 17, 2011 @02:55PM (#38088928)

    Several European countries are considering laws mandating user-friendly EULAs

    While I think this is a great start, I think a better idea would be to take the common subset of clauses that both consumers and vendors can agree upon, and make them implied by law.

    EULAs shouldn’t be an automatic, they should be an exception, for cases where something is radically different.

    To an extreme, I don’t think that clicking “I agree” should even be legally binding. If you have some kind of special case, lawyers or at least something more substantial than clicking a button should be required. If your customers can’t be bothered, either learn to operate within the common set of agreed rules, or go into a different business.

    • by Zironic (1112127) on Thursday November 17, 2011 @02:58PM (#38088972)

      It isn't legally binding. Which is why noone bothers to take you to court over the EULA. They know they'd lose.

      • Re:Step 2 (Score:5, Informative)

        by HarrySquatter (1698416) on Thursday November 17, 2011 @03:03PM (#38089020)

        http://arstechnica.com/tech-policy/news/2010/09/the-end-of-used-major-ruling-upholds-tough-software-licenses.ars [slashdot.org]>O Rly? This is an oft-related but false meme perpetuated on slashdot. Specific EULAs have been held up in court a number of times. Now certain clauses in certain EULAs have been struck down but that is not the same thing you claim.

        • Re:Step 2 (Score:5, Interesting)

          by Zironic (1112127) on Thursday November 17, 2011 @03:07PM (#38089080)

          Meh, you live in a messed up country, I don't. Swedish contract law contains a number of stipulations that EULA fails to uphold, so they're not valid contracts here. Instead most of what EULA covers is covered by the copyright laws.

          • by Bert64 (520050) <bert&slashdot,firenzee,com> on Thursday November 17, 2011 @03:14PM (#38089152) Homepage

            They, like many other "contracts" aimed at end users, are simply there to scare you into compliance...
            Just because it has no legal weight, doesn't mean that a lot of people who don't know any better will feel compelled to comply with them.

          • by Darinbob (1142669) on Thursday November 17, 2011 @06:29PM (#38091526)

            It's not really a contract unless you can either negotiate the contract or get out of the contract. EULAs do not give you the right to negotiate the contract. However you _should_ be able to back out of the contract if you disagree with the provisions. The problem is that it is often cumbersome or impossible to do so; many stores or manufacturers will flat out refuse to give you a refund. When that occurs the EULA should be considered invalid.

            Also provisions of EULAs may violate various statutes. For instance I don't think it's valid to require that the software not be allowed to run in a virtual machine as that is counter to fair use principles in copyright law (ie, 10 years in the future I may be running my current OS in a compatibility VM, ala dosbox). Similarly I don't think it's valid to prohibit "reverse engineering" since the user may need to do this in order to fix the software if it doesn't work or to make it work with certain drivers, or even to use a no-CD crack if the media becomes damaged. Being able to resell a purchased product is a fundamental right and yet this is the very thing that most EULAs prohibit.

            Of course these sorts of restricted rights have been in software from nearly the beginning. Companies would require you use their operating system on their machines or they'd void your service contract, and you'd have to relicense the software annually. But on those early cases there were actual physical contracts that were signed and agreed to in advance; it was a racket but both sides entered into it with full knowledge. What's different with these shrink wrapped licenses is that very often the consumer does not know what rights they're giving up in advance, they may be stuck with a software that doesn't work, a DVD that doesn't play on their machine, etc.

        • by bcrowell (177657) on Thursday November 17, 2011 @04:48PM (#38090246) Homepage

          Interesting link. Thanks for posting that! I hadn't realized that music sold on Amazon had such a restrictive EULA, forbidding resale. Unfortunately Google's new service sees to have the same problem. [google.com] Presumably they both have these terms because they were imposed on them by the record companies.

    • by stephanruby (542433) on Thursday November 17, 2011 @05:56PM (#38091084)

      Yes personally, I get tired of seeing licenses that make no warranty, no guarantees, and that want no liability, should their software fail. This is kind of a no-brainer for me, especially for free or consumer-level software.

      I would also add that a company must provide the old EULA, the new EULA, and also an exact diff of any changes they make to it.

      And that should a contract/EULA contain a clause that's illegal, or unenforceable, or for instance against fair use, at the time it was written, that the entire EULA becomes null and void (and that this would cause prejudice to the party who wrote the EULA in the first place).

      This last idea would dovetail nicely with your idea. By making it legally riskier for companies to write complicated EULAs, then those companies would naturally gravitate to having no EULAs, or simpler standard EULAs instead.

  • I hate EULAs (Score:5, Informative)

    by weszz (710261) on Thursday November 17, 2011 @02:56PM (#38088936)
    Here at work EULAs have become an INCREDIBLE pain in the past month... We not need everything we download to use approved that it is free for commercial use if the company didn't buy a license.

    I can't use Virtual Clone Drive since the website says it's free, the developer says it's free, everyone says it's free but the EULA doesn't specifically say that.

    I hate EULAs. (Plus an interesting note, RealPlayer apparently cannot be used in a commercial environment at all, or so says the EULA.)

    • by HarrySquatter (1698416) on Thursday November 17, 2011 @02:59PM (#38088980)

      RealPlayer apparently cannot be used

      And nothing of value was lost.

  • by liquidweaver (1988660) on Thursday November 17, 2011 @03:01PM (#38088996)

    When I bought IDA Professional, in the EULA it explicitly spelled out several things:
    1.) I an install it on any machine I own
    2.) I can make backups
    3.) I can reverse engineer the software
    If only the rest of the world worked that way. They trust their users - and it inpires a level of respect, at least with me, where there is absolutely no chance I would share a copy.

  • by rjmx (233228) on Thursday November 17, 2011 @03:01PM (#38088998)

    How about a law that requires a company changing its terms of service to tell you exactly what the changes are and how they affect you, rather than simply saying that they've changed them, with a link to the new version (and a fat lot of good it'll do you, too)? Back when I had a PayPal account, that was one of the most annoying things about them.

  • by tiberus (258517) on Thursday November 17, 2011 @03:04PM (#38089038)

    A EULA is a form of 'contract' but, I always though contracts implied some form of negotiation, not just blind (enforced, un-yielding, etc. etc.etc.) acceptance. Who's negotiating for us? At work, our Contracts Department can ask a vendor to change a EULA and there's a chance it will happen but, good luck calling up XYZ Corp and saying, I'd feel better if Clause 4.3.1.2 said foo instead of bar...

  • by orthancstone (665890) on Thursday November 17, 2011 @03:13PM (#38089140)
    But why would they want to tell you how they are screwing you in plain language when they can bury you in legalese?
  • by MetalOne (564360) on Thursday November 17, 2011 @03:16PM (#38089170)
    I returned a Sony TV partly because the EULA said I had to indemnify Sony if I violated the EULA or was even alleged to have violated the EULA. I didn't want to deal with possibly being on the hook for million dollar lawyer fees. I know that the chances of Sony getting sued because of my actions would probably be nil, and two it would be thrown out of court as unconscionable, but still, I thought the indemnify clause was crazy. This indemnify clause also said Sony would have to approve of any lawyers involved. Additionally the TV came with Yahoo widgets, and the EULA for Yahoo widgets said the license was non-transferable. I assumed this to mean that selling the TV would violate the EULA. The EULA required arbitration for any disputes. The entirety of the EULA gave Sony all the rights and the user none. Well, the TV that I exchanged it for looked better anyway, so it was a win win for me.
  • by Oswald McWeany (2428506) on Thursday November 17, 2011 @03:20PM (#38089228)

    Oswald's rule of EULA:

    If you have to scroll the EULA is no good and few people will read it.

  • by kf6auf (719514) on Thursday November 17, 2011 @03:28PM (#38089336)

    I don't know why no one includes summary's at the top of EULAs. It's not like it's that hard of an idea to think of and I've yet to hear a single objection (though I'm sure /. can help with this). No one is actually saying you can't have pages and pages of precise details spelled out in pages and pages for the lawyers.

    By the way, this is suggested on page 2 of the article for all of you who either didn't read the article, or refuse to bother going to page 2 of an article that has no reason not to be on a single page.

    • by m.ducharme (1082683) on Thursday November 17, 2011 @04:16PM (#38089826)

      I can think of one objection: what happens if there's ambiguity between the summary and the mass of technical detail below it? If the summary is binding, then you will inevitably get conflicts in interpretation between the summary and the particulars, but if it's not binding, you still have to read the whole damn thing anyway, so why muddy the water with a summary you can't rely on?

      Now as it happens I think it's still worthwhile to use a summary (indicate that the summary is to be used to resolve ambiguities in the more detailed drafting, but not binding in itself), but you do have to tread carefully.

  • by wisnoskij (1206448) on Thursday November 17, 2011 @03:32PM (#38089390) Homepage

    I doubt that any EULAs would hold up in court.
    Everyone knows that you are not supposed to read them and most of them are several pages long.

    They are a joke and no one takes them seriously, for example: I have agreed to EULAs that told my not to do drugs.

  • by Teun (17872) on Thursday November 17, 2011 @03:34PM (#38089416) Homepage
    Give me a proper contract to consider and maybe sign or don't bother me.

    As the article says something about European countries I'll limit myself to that subset of humanity.

    Most European countries should explicitly invalidate Eula's as a legal and binding contract, as a matter of fact I don't think many countries or courts in Europe would even consider them as such right now.
    There are some countries that already have stipulations about the readability of consumer contracts and according to the issuers the Eula is such.

    Plus the EU law gives you the explicit right to return any product bought over the Internet within a 7 day grace period.

    • by snowgirl (978879) on Thursday November 17, 2011 @04:28PM (#38090012) Journal

      Give me a proper contract to consider and maybe sign or don't bother me.

      I feel the same way about everything I purchase. That $0.99 candy bar? I want to sign a real pen-and-paper contract; I mean if you're so lazy that you fall back on implied verbal contracts, then why bother me? I'm happy to leave you and go get my candy bar from someone who cares enough to sell out even the most mundane of contracts in ink, with signatures, and lawyers.

  • by ArhcAngel (247594) on Thursday November 17, 2011 @03:40PM (#38089486)
    For enterprise class software and systems licensing makes sense but telling an end user they do not own a product they paid for will get you horse whipped, tarred and feathered. The average end user doesn't understand the concept but if you tried to license a car to them and then showed up one day and tried to take the car away because they modified it in some way that violated the license they would bust you up. If more average users understood (and cared) about what that EULA meant we'd see some occupy EULA protests.
  • by JustAnotherIdiot (1980292) on Thursday November 17, 2011 @03:52PM (#38089604)
    ...and the reason i stopped reading them is because there is NOTHING you can do about it if you disagree outside not using the program.
    Say you don't like a clause in it and call up the company? You're just going to get laughed at and have them hang up.
    Not to mention the only person who really even knows what's in it is the lawyer they hired.
  • by HalAtWork (926717) on Thursday November 17, 2011 @03:57PM (#38089652)
    We already have laws to cover most of the things EULAs are concerned about, making EULAs superfluous. The rest just is contradictory to existing laws and is unenforceable, so it doesn't apply. Not to mention that it's a one-way contract (in that you can't redact, as you can with normal contracts), so maybe it's illegal in and of itself. I'm glad I don't use software that has EULAs.
  • by Twinbee (767046) on Thursday November 17, 2011 @04:01PM (#38089682) Homepage
    Software EULAs can be just as irritating. But this link nicely demonstrates how things should be done:
    http://lawactually.blogspot.com/2011/10/thats-interesting-approach.html

    It should be the same idea to prevent all suing in the US. 'Everything's at one's own risk' etc.
  • by Dogbertius (1333565) on Thursday November 17, 2011 @04:22PM (#38089924)
    Not all of them are bad. HavenTree did a humorous one some time back:

    Text of software license
    This is where the bloodthirsty licensing agreement is supposed to go, explaining that Interactive Easyflow is a copyrighted package licensed for use by a single person, and sternly warning you not to pirate copies of it and explaining, in detail, the gory consequences if you do. We know that you are an honest person, and are not going to go around pirating copies of Interactive Easyflow; this is just as well with us since we worked hard to perfect it and selling copies of it is our only method of making anything out of all the hard work. If, on the other hand, you are one of those few people who do go around pirating copies of software you probably aren't going to pay much attention to a license agreement, bloodthirsty or not. Just keep your doors locked and look out for the HavenTree attack shark.

    Text of disclaimer
    We don't claim Interactive EasyFlow is good for anything -- if you think it is, great, but it's up to you to decide. If Interactive EasyFlow doesn't work: tough. If you lose a million because Interactive EasyFlow messes up, it's you that's out the million, not us. If you don't like this disclaimer: tough. We reserve the right to do the absolute minimum provided by law, up to and including nothing. This is basically the same disclaimer that comes with all software packages, but ours is in plain English and theirs is in legalese. We didn't really want to include any disclaimer at all, but our lawyers insisted. We tried to ignore them but they threatened us with the attack shark at which point we relented.
  • by MobyDisk (75490) on Thursday November 17, 2011 @04:58PM (#38090394) Homepage

    EULAs are thorny.

    Suppose I work for a company and the IT department installed a piece of software on that computer. Must I abide by the EULA?

    Or the reverse: Suppose I install a piece of software, must the company abide by the EULA, or just the individual? What if the EULA states that the publisher can remotely access my workstation or use our company trademarks in their promotional materials? The individual installing and using the software probably doesn't even have the power to make those decisions. So do they apply?

    What if a minor installed the software?

  • by Spikeles (972972) on Thursday November 17, 2011 @05:29PM (#38090742)
    At least some people [nfshost.com] have a sense of humor when writing them.
  • by gr8dude (832945) on Thursday November 17, 2011 @05:38PM (#38090860) Homepage

    I have a question about the checkbox in installers. What we usually see is an unchecked "I agree" and "Next" is clickable only when the checkbox is ticked.

    I teach a course about designing software, some parts of the course are about distributing applications. I also sell software for a living.

    This week I held a class in which I discussed installers and the user experience of the installation process. My advice was to remove unnecessary steps: drop the checkbox and rename "Next" to "Agree and continue" (or something similar). The rationale is very simple - reduce the number clicks, bring people closer to their objective.

    Here's a EULA I wrote for one of our products: http://dl.dropbox.com/u/3258602/screenshots/Screenshot-SIMple-EULA.png [dropbox.com] (used on http://sim-reader.com/ [sim-reader.com] there is a checkbox, but it is for customizing the installation settings, it is not related to the agreement. Here's another example, just a "Next" button: http://dl.dropbox.com/u/3258602/screenshots/Screenshot-Private-Disk-EULA.png [dropbox.com]

    This is based purely on common sense and personal experience with other programs. Reason tells me that "Next" won't turn self-aware and click itself, thus if it was pressed - it was a conscious decision of the person using the computer.

    However, the rest of the world relies on that checkbox... Am I missing anything? Is there some legal loophole that the checkbox covers? Is there a reason to do this, other than "everybody else does it"?

  • by Anarchduke (1551707) on Thursday November 17, 2011 @06:00PM (#38091126)
    The US doesn't stand a snowballs chance in hell of getting anything that doesn't benefit the MPAA or the BSA.

Time to take stock. Go home with some office supplies.

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