Software License Agreements

1/26/2010 5:57 AM EST

If you end up in court with the software company, how can they prove that you are the person who installed it and thereby "agreed"? There is no pen and paper signing or other such legally binding acts. Good luck proving who installed the software. Computer login passwords etc proves nothing, as everyone can leave their computer on. The software might have been installed by a hacker, or a burglar, or perhaps by your cat.

1/26/2010 11:22 AM EST

When I was handling embedded software tools with a larger automotive company we had to wrestle with our supplier of software to get our conditions met, at least a little.

Mostly inducing some very impressive 6-figure payments from our side. [and we're talking 2003 Dollars, or Euros]

1/26/2010 12:13 PM EST

What if cars were to be sold with a EULA? I wonder how many pages would it be and what kind of exclusions!

1/26/2010 3:35 PM EST

Jack, it sounds like you ran into a particularly onerous EULA. Not all EULAs are like that, and it’s difficult to lump them all together and assess them as a whole. Our source license agreement for our ThreadX RTOS, for example, is only 1-page in length. We routinely tailor it to meet our customers’ individual needs, so it’s a true “agreement.” I’m not sure how many software companies are similarly flexible and easy to deal with, but clearly not all companies present the user with an onerous EULA such as the one you encountered. And, to your comment about encouraging the use of open source software, have you seen the GPL (14 pages in length)? In fact, we also have a EULA for our BenchX IDE, which is based on the Eclipse open source code. Because of the Eclipse connection, we are required to address many issues related to open source that we do not have to include in our proprietary software agreements, making our “open source” EULA 5 pages long.

Further, our commercial software EULA is required to be signed (not “clicked”) by the same folks who pay for the license, or their superiors, so there is corporate accountability at the management level, not at the engineer level. We generally work with our customers’ legal department to understand their requests, and to reach a mutually acceptable agreement.

It appears that your comments were inspired by the particular EULA you recently read, but not all companies use such onerous EULAs. Although it might be difficult for the owner of that particular EULA to be publicly named, it might help them, and other companies with elaborate EULAs, recognize that such EULAs are not always necessary. The commercial software sector as a whole then, as well as all EULAs, might not be tarred with the same feathers.

1/26/2010 4:43 PM EST

Hello Jack,
I certainly sympathize with you, as I have all too often clicked "accept" without reading the whole thing. On the flip side - you and I both know that there can be a variety of reasons a particular program doesn't run properly, some hardware related & some software. For example, if you have a randomly defective memory stick, you might think that the program is at fault when certain addresses are accessed, because your other software doesn't access those particular addresses. Is that the fault of the software supplier? What if you have a virus that interferes with the normal operation of the program - who warranties that? There are so many variables that affect how well a certain program will run on a system, I'm sometimes surprised how well they actually do run. I have a bumper-to-bumper warranty on my car, and they promise to fix whatever goes wrong, as long as I can prove that I had the necessary maintenance done. I suppose a software company could have some kind of warranty that required the regular use of a virus scanner & memory error detection software, but you and I know that ain't gonna happen!
In the end, it seems to me that a good customer support center is probably more cost-effective than the cost of warrantying "ghost" problems. In my company, we routinely get product back (returned by the retailer for warranty reimbursement) for which we can find nothing wrong. Was it an installation problem? EMI? We don't know - but we end up eating the cost. I'd like to be able to have a warranty that says, "This product was tested and worked properly when it left the factory. If you have problems,or can't read the instructions, please find someone who can" but I don't think marketing would go along with it!

1/28/2010 12:30 AM EST

Too bad you live in Maryland Jack. They passed UCITA about 10 years ago and it makes all sorts of ridiculous EULA terms perfectly legal. Virginia was the only other state to adopt this ill-considered law before the legislative train got derailed by a mostly-volunteer effort lead by Cem Kaner. While this issue is largely dormant now it will be back again some day. Have a look at http://www.ucita.com to learn more.

To respond to kalpak's posting -- under UCITA a standard software EULA is perfectly legal AND brings the entire car under those terms, even the mechanical components! It sounds crazy, but as they say, truth is stranger than fiction.

1/28/2010 7:43 AM EST

My experience has been the same: When installing the software, the EULA basically says: Accept the terms of the EULA or you can't install the software. Sounds a little like extortion. And good luck returning the software after the package has been opened.

An even bigger problem is the "timed license agreement". A few years ago, I paid about $20,000 for electronic design software. This year, I was unable to continue paying for the yearly support fees (about $3,000 / year). Shortly after I dropped the support, the software quit working because the 'timed' license ran out! What? So this software I paid all that money for is now useless? Yes, it is! Imagine buying a new car and finding out that if you don't keep paying a yearly maintence fee to the dealer, the car stops running and and won't start again until you make another yearly maintnance fee to the dealer. No one would put up with that for a second, but some software vendors do this routinely. Unbelieveable!

You are right, Jack, some of these EULAs are probably not legal. Perhaps it's time to mount a class action lawsuit against some of the worst offenders.

1/28/2010 8:08 AM EST

Coincidentally, I actually tried to read one a few months ago when installing something (can't remember what). The tiny window they gave to read it was absurdly small. My scrolling finger started getting tired after a few minutes, and I noticed I was only about 20% of the way through it.

That was it... from now on I will give them zero attention. They have gotten beyond ridiculous.

1/28/2010 10:08 AM EST

The kicker in all of these things is that the software is NOT guaranteed to to anything, shouldn't be relied on to do anything, and they can't be held responsible if it does something wrong. Jacks remark about the only thing guaranteed is the media and that's about as silly as it gets.

The 'actual experience' with a software tool vendor can be (and frequently is) very positive, since no one would buy (or maintain) a companies tools if they were as bad as implied by their licensing agreement.

It's just that the supplier doesn't want the liability associated with guaranteeing that there tools will always be correct.

1/28/2010 10:32 AM EST

The problem is that EULAs are created by lawyers, who only care about protecting their clients. The best way to do that is to guarante nothing, and accept responsibility for nothing. Of course these diclaimers are mostly bluff. I don't know about Maryland and Virginia, but in most states if a court says the company is resopnsible it doesn't matter what a disclaimer that no one signed says.

1/29/2010 4:36 AM EST

A software license agreement is a contract between the "licensor" and purchaser of the right to use software. The license may define ways under which the copy can be used, in addition to the automatic rights of the buyer including the first sale doctrine and 17 U.S.C. § 117 (freedom to use, archive, re-sale, and backup).

Many form contracts are only contained in digital form, and only presented to a user as a click-through where the user must "accept". As the user may not see the agreement until after he or she has already purchased the software, these documents may be contracts of adhesion. These documents often call themselves end-user license agreements (EULAs).

Software companies often make special agreements with large businesses and government entities that include support contracts and specially drafted warranties.

1/31/2010 10:49 PM EST

Agreed, EULAs are absolutely absurd. Should the normal civilian be forced to hire a lawyer merely to understand these documents? We're all fairly educated and can't even stand to read them nor spend the time to comprehend them, and thus just blindly click "agree".

How about just covering the basics in lay terms (in under a paragraph).