Disclosing terms

IF SOFTWARE VENDORS want their shrinkwrap/clickwrap agreements treated as real contracts, why won’t they let us read them before we put our money down?

This isn’t quite as simple a question as it may first seem. In the early days of shrinkwrap licenses, the formal answer was that there wasn’t room on the packages for both the license and the software publisher’s marketing stuff, so the license had to go inside. But in the Web era, there’s no good excuse for not posting the current license agreement for a product. Internet services do it routinely — why can’t software companies?

Some do, but a perusal of the Web sites for the larger software companies turned up very few EULAs (end-user license agreements). Many of those were out-of-date or were in such odd places it took just the right search criteria to find them. Only Adobe had a page specifically dedicated to providing EULAs for its products with links to it from several logical places.

The largest software company of them all has given some readers reason to believe its lack of posted EULAs is no oversight. “Microsoft has flatly refused to provide me with a copy of the license agreement for any Microsoft software,” wrote one reader after calling Microsoft’s consumer sales information line. “I was told that I must purchase the software first in order to read the license agreement and that … after I purchase their software, I have 30 days to return it to Microsoft or to the retailer if I do not agree with the Microsoft license agreement. I was told by Microsoft that in order to ësee’ the agreement, I at least have to purchase and to open the software, and I probably have to commence installation of the software in order to see/read the license agreement and indicate whether I accept or decline it. … Am I crazy for wanting to see a copy of the license agreement wording before purchasing the software?”

Now, some of you might be thinking that this reader is indeed crazy. After all, EULAs are all the same, aren’t they? So what’s the point whether you can read them ahead of time or not?

Don’t forget that, as alert readers have discovered, some but not all Microsoft license agreements contain such gems as customers agreeing to not disparage Microsoft, or to let Microsoft automatically download operating system updates, or to not make any benchmark results public without Microsoft’s permission. And having nasty surprises lurking in their license agreement is one area where Microsoft doesn’t have a monopoly, as we’ve seen recently with Symantec and McAfee.

Beyond the surprising terms, though, a more basic reason to want to see the license agreement before you buy a product is to know what return rights, if any, you are being granted. Many EULAs of course tell you the software is sold completely as is or with just a limited warranty for media defects. But with a number of consumer-level products, including some of Microsoft’s, the user may have 30 or 60 days to return the product if not completely satisfied. Often the only way to find out if you have a money-back guarantee or not is to read the EULA. You’d think the software companies that offer such a warranty would promote the fact prominently on their Web site or on the product packaging, but frequently they don’t. It’s as if software companies don’t want customers to be able to comparison shop for the most favorable terms, even when their terms are the best. Why?

In hopes of finding a clue to this riddle, I decided to try duplicating the efforts of the reader whose pleas to see the EULA before the sale were rejected by Microsoft. First I searched the company’s Web site as diligently as possible for any EULAs, but outside of the posted Purchase Use Rights agreement (where readers first spotted the terms giving Microsoft rights to automatically download XP updates) that supplements Select volume license agreements, I found only one current license. Ironically, it was the new FrontPage EULA, now minus the “no disparaging Microsoft” term. It was not there last year when I was confirming the existence of that term, so I guess it’s there now to show it’s OK to disparage Microsoft after all. Good thing.

The site for Microsoft’s online store includes a notice that some of its products come with a “limited warranty” in the license agreement while others are sold as is. As a customer service number was listed for those who want to “obtain a free copy of the Limited Warranty,” I thought I could surely get any EULA I wanted there. But when I called and asked the customer service representative how I could go about seeing the EULA for PowerPoint before buying the product, she was uncertain. What did I specifically want to know, she asked. When I said I was primarily interested in the warranty, she assured me it had a 30-day money back guarantee, although she couldn’t confirm that the PowerPoint EULA says that. When I said I’d still like to see it for myself, she went off to check how that might be possible. After a long wait, she returned to say the only thing she could do was to point me to that FrontPage EULA I’d already seen posted on Microsoft’s site, as she suggested it might be very similar to PowerPoint’s. (It isn’t, actually.) The customer service representative seemed genuinely eager to help, and a little perplexed herself as to why I couldn’t see the license agreement without buying the product. But that was the way it was.

It is indeed perplexing. Why should a company that wants its license agreements to be treated as a binding legal contract (binding on the customer, that is — Microsoft reserves the right to change its terms at any time) be so resistant to letting potential customers read that contract before putting their money down?

I’m not sure, but I know one other place we can look for answers. We’ve had clear evidence for many years that Microsoft and other large software companies don’t want their license agreements to be public, and it’s called UCITA. I fear that’s a topic to which we must return yet again.