Forwarded from a non-IT list by k2euh 20070118 2221 est
>
> ========================================
> ED FOSTER'S GRIPELOG
> The Reader Advocate Column
> ========================================
>
> Will EULAs Follow UCITA into Oblivion?
>
> Thursday, January 18, 2007
> By Ed Foster
>
> Is it time to put an end to End User License Agreements? While many of
> us have long felt that EULAs were unnecessary, I wonder if their
> champions in the software industry might not be ready to agree that
the
> whole concept is obsolete.
>
> As we saw in Monday's story, there's a growing sense of frustration
with
> the ridiculously one-sided terms the lawyers for software publishers
> throw into their license agreements. More and more experts are
> questioning the practice, such as Jennifer Granick's recent prediction
> (http://www.wired.com/news/columns/0,72394-0.html) that contract law
> will the hot cyberlaw topic of 2007. Another must-read piece for
anyone
> interested in the topic is Mark Rasch's thorough analysis
> (http://www.securityfocus.com/columnists/423/1) of the Windows Vista
> EULA and Microsoft's product activation.
>
> Rasch covers a lot of ground, including a great discussion on the
legal
> history of electronic self help, but the point that was particularly
> fascinating for me was one he made about UCITA. (The Uniform Computer
> Information Transaction Act was a model state law making EULAs
strictly
> enforceable that was pushed by the Business Software Alliance and
> opposed by a broad coalition of consumer groups, civil rights
advocates,
> IT professionals, library associations, and me -- learn more about it
at
> http://www.ucita.com.) In theory at least, Microsoft's use of DRM
could
> be viewed as a wrongful exercise of electronic self help under UCITA
as
> implemented in Maryland, and possibly Virginia as well.
>
> Talk about being hoisted on your own petard, it would certainly be
> poetic justice for Microsoft -- which led the BSA's enormous lobbying
> effort for UCITA -- to be the first true victim of the electronic self
> help. Now, as Rasch acknowledges, it's pretty unlikely that could
> actually happen. For one thing, Microsoft would surely argue that its
> various copy protection schemes are what in UCITA language are called
> "automatic restraints" rather than electronic self help. There are
some
> conceivable scenarios where that argument might not hold, but we'll
> leave that for another day.
>
> The real lesson here is what those of us who opposed UCITA always
said:
> treating one-sided EULAs the same way as negotiated contracts in the
end
> only raises more problems than it solves. UCITA has been a dead
letter
> almost from the moment it was enacted in Virginia and Maryland, partly
> because it was rejected so completely by other states and by the
> American Bar Association, but also because it simply hasn't been
needed.
>
> EULAs serve two different purposes. One is to disclaim warranties and
> liability, and by now we all already understand that software comes
with
> virtually no warranty and no responsibility for bugs. And since it's
> clear that in the future increasingly software is going to be free,
> that's fine. And you don't need EULAs for that -- a "Sold As Is"
sticker
> will do the same thing as those infinitely long disclaimers.
>
> But the other purpose EULAs serve is to take away rights that
customers
> would otherwise have under the law. Restrictions on the right to
> transfer or resell a product, prohibitions on publishing benchmarks
> without permission of the vendor, limitations on how you can use or
> modify or compete with a product, etc., are just of the things that
> legitimate software vendors try to keep us from doing through the
terms
> of their license agreement. And then there are the not-so-legitimate
> vendors for whom EULAs have been a marvelous boon - spyware purveyors,
> "free" stuff scam artists, spammers and other shady dealers. Really
> about the only real benefit EULAs have provided the software industry
or
> the Internet has been the business opportunity for anti-malware
products.
>
> Just how enforceable a lot of these rights-depriving terms are have
> generally not been well tested in court, because vendors will often
> settle if the EULA is all they've got going for them. The epitome of
> this of course was the Sony rootkit CDs and the ridiculous EULA that
> came with it. It would have been interesting if Sony had attempted to
> defend itself from the lawsuits on the basis of that EULA, but the
> company settled quickly instead.
>
> The one area where courts have upheld EULA terms that take away rights
> we would appear to have otherwise has been the bans on reverse
> engineering. Sooner or later, though, Congress or the courts or both
> will have to overturn decisions like the Blizzard vs. BnetD case,
> because having undefined "reverse engineering" banned for every
product
> is simply a prohibition against competition. I think most people in
the
> software industry recognize that the reverse engineering clauses are
> untenable, but you can't blame any of them for putting such provisions
> in their EULAs as long as our courts are stupid enough to uphold them.
>
> Remember, as we've discussed many times, EULAs have nothing to do with
> copyright law and are not required to prevent distribution of illegal
> copies of software. So what benefit are software companies actually
> gaining from all the billable hours their lawyers rack up writing
these
> things? If enough software executives ask themselves that question,
> maybe 2007 really will be the year we see the end of End User License
> Agreements.
>
> ========================================
>
> Recently in my weblog:
>
> Reader Voices: Invalid Terms
> At what point is it clear that a nasty license provision goes so far
> across the line that it must be deemed invalid? That seems to be an
> increasingly hot topic, due in large part to recent discussions here
and
> elsewhere about various terms in Microsoft's Windows Vista EULA.
> http://www.gripe2ed.com/scoop/story/2007/1/15/11529/2390
>
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