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unnecessary, I wonder if their champions in the software industry might not be ready to agree that the whole concept is obsolete.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. M 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unnecessary, I wonder if their champions in the software industry might not be ready to agree that the whole concept is obsolete.As we saw in Monday’s story, there’s a growing sense of frustration with the ridiculously one-sided terms the lawyers for software publishers throw into their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 that contract year will the hot cyberlaw topic of 2007. Another must-read piece for anyone interested in the topic is Mark Rasch’s thorough analysis 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 Transactions 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 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.——————–Post your comments about this column on my website, write me at Foster@gripe2ed.com or phone my voice mail at 1 888 875-7916. Read and post comments about this story here. Technology Industry