Ben Edelman offers a nice dissection of the latest End User License Agreement (EULA) from Gator. It has to be one of the worst EULAs ever written. Below are some highlights; see Ben’s post if you want more details.
[Background about Gator: Many people say Gator’s product is spyware. Gator has a habit of threatening those people, to get them to say “adware” instead of “spyware”. Draw your own conclusions.]
For starters, the EULA is nearly 6000 words, or 63 on-screen pages. Worse, Gator has taken affirmative steps to make the EULA harder to read, harder to understand, and harder to save. They eliminated helpful formatting, such as boldface section titles, and they removed a button that let you capture the EULA text in Notepad for searching or printing. (Both features were present in previous iterations of the Gator EULA.)
The EULA forbids the use of packet sniffers to determine what information the Gator software is sending out about you.
Worst of all, the EULA forbids you from removing the Gator software, except by removing all of the programs that came bundled with Gator. (It’s not clear how you’re supposed to figure out which programs those are.) Even if you remove all of the programs bundled with Gator, this would only invoke the removal program that Gator provides, which may or may not actually remove all of Gator from your system.
EULAs like this seem designed to create as many unsuspecting or inadvertent violations as possible. James Grimmelmann argues that this is just a tactic to give Gator legal ammunition in case their users sue them, the idea being that anybody suing Gator would face counterclaims for breach of the EULA. That seems plausible, but I doubt it’s the whole story.
To the extent that the EULA gives Gator legal leverage over its users, that leverage could be used to deter criticism of Gator, and not just lawsuits. Experience has shown that some companies, especially ones with dodgy products, do use what legal leverage they have against their critics. If I planned to criticize Gator in detail, I would worry about this issue.
There are two solutions to this overEULAfication problem. A court could throw out this kind of egregious EULA, or at least narrow its scope. Alternatively, users could raise the price of this behavior by refusing to use overEULAfied products. Realistically, this will only happen if users are given the tools to do so.
The best kind of tool for this purpose is information. I would love to see a “EULA doghouse” site that listed products with excessive EULAs, or that rated products by the content of their EULAs. At the very least, EULA evaluation could become standard procedure for people writing reviews of software products. Unfortunately, there hasn’t been much progress on this front.
Who gives a tinker’s cuss anyway? EULAs aren’t even remotely enforceable in any court of law. You, as a consumer, have certain statutory rights that you cannot sign away, ever. And anything that tries to diminish your statutory rights is automatically null and void in its entirety — even such provisions as would not infringe your statutory rights.
Or how about a postive reaction? Have the fine folks at Creative Commons come up with *acceptable* EULAs and endorse them. As a user, any software with at CC-endorsed EULA would automatically be more attractive to me than one that is 63 screens of legalese.
I’m just wondering if EULAs, as ‘contracts’ are by default public information, so they can be quoted in their entirety.
If that’s so, a Wiki site that allows EVERY EULA to be posted would be useful. And I mean every, so benign ones also, so even Granny would know to go look there first. Dubious clauses could be made bold red (not altering the text, is it) and the site should keep all ‘old’ revisions so that the history is always retained in case of malicious action (particularly if it’s a Wiki).
I think EULA’s in general are written intentionally broad.
And it is not only limited to companies with “dodgy products”. If you read the Wal-mart Music Store EULA it says:
<<All Products are sublicensed to you and not sold, notwithstanding the use of the terms “sell,” “purchase,” “order,” or “buy” on the Service or in this Agreement.>>
there are enough examples of bad EULA’s out there to justify it’s own site. Anyone willing to step up? (or make at least a wikipedia entry?)
Are EULA’s binding on minors?
Plenty of kids own computers, and install software on them. My reasoning is that minors cannot enter into legal contracts, and so are not bound by EULA’s.
In the box was the “Microsoft Frontpage 2002” license on a four-page folded sheet, titled “End- User License Agreement For Microsoft Software.” Under Section #1, Grant of License, the second paragraph headed “Restrictions” states in part: “You may not use the Software in connection with any site that disparages Microsoft, MSN, MSNBC, Expedia, or their products or services, infringe any intellectual property or other rights of these parties, violate any state, federal or international law, or promote racism, hatred or pornography.”
The debate in Slashdot, which I atually skimmed through because to try to actually read it is no job for a grown-up, consists of a bunch of paranoid geeks whingeing about Micro$oft and a general conclusion that the story is a load of old toffee.
The Microsoft FrontPage EULA does not try to stipulate that you can’t use Microsoft FrontPage to make a webpage that says bad things about Microsoft.
Not funny but true.
FrontPage EULA issue:
http://slashdot.org/article.pl?sid=01/09/21/1438251
Have you seen Ed’s Gripe Log? He periopdically covers these, and informally polls for the best/worst in both the world of EULAs and of support.
“the Microsoft FrontPage EULA which tries to stipulate that you can’t use Microsoft FrontPage to make a webpage that says bad things about Microsoft…”
Eh? No it doesn’t.
http://www.microsoft.com/office/eula/en.mspx
Who Let the Dogs Out?
Edward Felten, responding to Ben Edelman’s analysis of the now notorious Gator spyware End User License Agreement (EULA): There are two solutions to this overEULAfication problem. A court could throw out this kind of egregious EULA, or at least narrow…
When EULAs Bite
Ben Edelman bites back. Later: James Grimmelman: “This agreement, whether characterized as a ‘license’ to use Gator’s copyrighted software or a ‘contract’ between you and Gator, is still a manipulative, low-down, dirty, no-good document.” Later #2: Edw…
Who Let the Dogs Out?
Edward Felten, responding to Ben Edelman’s analysis of the now notorious Gator spyware End User License Agreement (EULA): There are two solutions to this overEULAfication problem. A court could throw out this kind of egregious EULA, or at least narrow…
When EULAs Bite
Ben Edelman bites back. Later: James Grimmelman: “This agreement, whether characterized as a ‘license’ to use Gator’s copyrighted software or a ‘contract’ between you and Gator, is still a manipulative, low-down, dirty, no-good document.” Later #2: Edw…
I’d like to see a collection of EULAs like this, including the Microsoft FrontPage EULA which tries to stipulate that you can’t use Microsoft FrontPage to make a webpage that says bad things about Microsoft.
The only way spyware, adware, and other software like this thrives is in non-free software. If everyone had the freedoms of free software for all published software, we could collectively inspect software and modify it when we find something bad (like the apparently untrustworthy Gator uninstaller) then distribute the improved version.
Contracts like this are almost certainly invalid as against public policy, but they are effective tools to scare the unwary…and run up legal bills too.