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.