Many users never have a chance to see a EULA
Regarding my June 7 story on EULAs (end-user license agreements) and interview with expert Ed Foster, reader Chip Burkitt indicates that many software users never even get to read the EULA:
"My experience is that most people installing software pay no attention to the EULA. It is merely an extra click on the way to installing the software. I don't know much about legal challenges to the enforceability of EULAs, but I know that often the end user never even sees it.
"For example, I work for a software and services company as a field services technician. One part of my job is to install our software on our clients' systems. Do you think I pause the installation when I get to the EULA and invite the user to read through and agree to it before continuing? Of course not. I just do what most users do. I click 'Agree' and continue with the installation.
"So precisely who has agreed to the EULA in this case? I represent the company whose software is being installed. So, the company agrees to its own EULA, and the client never sees it. I doubt very much that any provisions of a EULA agreed to under such circumstances would be legally enforceable."
It does seem odd that the user should be saddled with one-sided requirements simply because they, or someone they hire, clicks an "I Agree" radio button. Unfortunately, as Ed Foster has pointed out in his column, at least some courts these days are doing just that.
Reader Jay Garden points out another common problem with EULAs:
"One aspect of some EULAs that I particularly hate is when you cannot print, copy, or otherwise access them later on (but of course the vendor can). You rarely get a chance to see the EULA until you have paid for the product and have it half-installed.
"Maybe they should have to put the EULA on the outside of the box (or in clear sight on the e-shop Web page) in 100 words or less (and reasonable font size) for it to be legal? That way we could make an informed choice before we select and buy."
Jay isn't the only reader to suggest the EULA appear outside the packaging. Reader Marat Bandemer makes the same suggestion, adding, "Who wants to pay $50 to $500 (or more) for software only to find that they disagree with the EULA, but now the box has been opened and they can't return the software?"
Reader A.B. Di Cyan has a similar complaint:
"Can we see a list of known good and known bad EULAs for programs people may be likely to download? I use the EULAlyzer too and I agree it is not enough, but the alternative is to spend all one's time reading legalese.
"For example, browsers: There are differences among the EULAs of IE, Netscape, Opera, and Firefox. I'm suspicious enough of Netscape's not to download their browser. Are my suspicions justified? How about QuickTime or products from Adobe or Real Networks? What media players, weather programs, toolbars carry snakes in the grass? Experts know the answers, and we need to hear from them."
For now, your best bet for checking out EULAs before purchase remains a Web browser and a search engine. For example, many major software companies have EULAs available on their Web sites, including Netscape, Adobe, and others.
For another reader (who asked to remain anonymous), the article on EULAs brought to mind a legendary EULA from many years back. The following is an alleged excerpt from the HavenTree Software Company's EasyFlow program, as found in a Word document on the Candadian Department of Justice Web site:
"If EasyFlow doesn't work: tough. If you lose millions because EasyFlow messes up, it's you that's out the millions, not us. If you don't like this disclaimer: tough. We reserve the right to do the absolute minimum provided by the law, up to and including nothing. This is basically the same disclaimer that comes with all software packages, but ours is written in plain English and theirs is in legalese. We didn't want to include any disclaimer at all, but our lawyers insisted."
This bit of candor is so memorable that someone enshrined the story in a Wikipedia entry.
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