Can you really click ‘No’?

IF YOU DON’T like a license agreement, they say, you can just refuse to accept it and get your money back. But can you really?

Consider the recent experience of a reader we’ll call Mr. Fine, in honor of his dedication to reading the fine print of software license agreements. Earlier this year, Mr. Fine renewed a yearly maintenance agreement his company made with Symantec for NAV (Norton Anti Virus) updates and virus definitions. When he received the media kit, he noticed on the back of the certificate for the licenses that there was an amendment to the EULA (End User License Agreement) that originally came with the Symantec software. He discovered this sentence: “Any right to return the software and any right to use the software on home computers that may be contained in the EULA shall not apply to the rights granted under this certificate.”

The home use rights were the part of the amendment that initially upset Mr. Fine. “I strongly encourage our employees to use the NAV software at home, as it helps keep our network safe,” he says. “This was permitted under the license agreement that came with the software when we purchased it last year. Does this new agreement mean my users now have to remove the product from their home computers?”

Mr. Fine contacted Symantec and was told that as of Nov. 1, 2001, Symantec had changed its policies and that his users could no longer use NAV updates on their home systems. (Because Symantec’s licenses are perpetual, in theory the home users could keep the original software on their systems, but without new virus definitions the software would soon be of little use.) “I was pretty disgusted,” says Mr. Fine. “Since we were on maintenance at the time of this change in policy, the right thing for them to do would have been to notify customers at that point. To ‘notify’ me by allowing me to renew, so I can read it in the fine print, is not the best way to find out that a feature that was a big plus for us in choosing NAV is now gone.”

Because Mr. Fine thought that he probably would not have not renewed the site license if he had known about the new policy, he then asked Symantec how he could go about rejecting the amended EULA so he could get his money for this year back. The original NAV EULA gave him the right to return the product for a refund within 60 days if he didn’t agree to its terms, so shouldn’t he be entitled to reject the amended terms as well? His request was rebuffed, however; Symantec customer service representatives initially told him that only the company reserves the right to change its terms at any time.

When Mr. Fine shared his situation with me, I found Symantec’s license amendment particularly intriguing. In the same breath that it took away the home use rights, it also took away all rights of return in the original EULA, presumably including the right of a refund if one didn’t accept the new terms. All it said about customers rejecting the new terms was that Symantec was “unwilling to license additional copies” to anyone not agreeing to the amendment. If you don’t like these changes, Symantec’s new license seemed to say, that’s just tough.

And that’s essentially what Symantec was telling Mr. Fine in real life as well. He pointed out that he wasn’t disputing the company’s right to change its home user policies as it saw fit, but he should have the right to reject those changes when they were presented to him after he had paid for his renewal. At one point, he was told he could apply to his reseller for his refund, but it would be up to the reseller and Symantec’s distributor to decide whether or not to approve it. It hardly seemed fair to Mr. Fine to have a reseller or distributor (who for all he knows might have to eat the cost of the refund) judging whether he’s entitled to return the product. After all, the amended EULA claims to be a legally binding contract only between Symantec and Mr. Fine’s company. No one else is a party to it.

After much back and forth, the last Mr. Fine heard from Symantec was from a customer relations representative who turned down his request yet again. “Apparently, there is a zero-return policy and they cannot make an exception,” Fine says. He was promised that a final appeal would be made to corporate, but after several weeks nothing has come of that.

Mr. Fine chose not to have his identify made known to Symantec, so company spokespersons said they could not comment on the specifics of his case. “As of Nov. 1, 2001, Symantec offers customers the opportunity to buy home use rights for products deployed at the enterprise level … at a significantly discounted price,” a company spokesperson said in a statement. When I asked whether what happened to Mr. Fine accurately reflects Symantec’s return policies under the amended EULA, the closest thing to an answer I received certainly suggests that it does. “Symantec’s policy on returns states that the company will only allow a customer to return an order if there is an error in the information placed on the order,” the spokesperson’s statement read. “Symantec’s policies remain in line with industry standards.”

That Symantec’s policies may well be in line with software industry standards is just what bothers me. As almost nobody reads any of these EULAs at all, Mr. Fine’s attempt to get his money back on terms he wasn’t allowed to see before he put his money down is relatively rare. The software industry likes to pretend that its customers have a choice if they don’t want to accept these post-sale, non-negotiable license agreements, but Mr. Fine’s experience suggests that’s a sham. And next week we’ll look at some other reasons for believing that the last thing big software companies want is to give customers any kind of license to choose.