What are you agreeing to when you sign a EULA? The Gripe Line finds out There has been a lot of talk about EULAs here on the Gripe Line before I made the scene. (I love the scoring and the FUELA features.) Still, I was a little surprised by the clause Tom found in the EULA for agreeing to paperless billing at DirecTV. Here is the phrasing as Tom sent it to me: Computer Virus You agree that you will be held liable for all damages related to or which flow from any computer virus that is received by DIRECTV through any means, including, but not limited to messages which may contain a virus, from your computer or server.What could DirectTV possibly be hoping for here? Would the company actually sue Tom if he signed this and then it got a virus “through any means”? (DirecTV did not respond when I forwarded the e-mail to the company.) Good question for a lawyer, I thought. So I called Kirk Teska, an intellectual property lawyer, professor of law, and author of “Patent Savvy for Managers.” He laughed when I read the clause. “You see this in EULAs all the time,” he says. “They attempt to change what is the normal legal implication of the law. But it is always a question in the law. ‘Can what two people agree to in a contract supersede the normal course of what the law should be?’ And the law normally likes to follow commonsensical rules. But when two parties agree — in a contract — to change that, the law does agree they should be allowed to. But in the case of EULAs, you don’t really agree. They are just shoved at you — take it or leave it.” And the law also realizes that most consumers never read these contracts. “So the courts have a tough time with these,” Teska says, “because they know people aren’t reading EULAs, and so aren’t really agreeing to them, and that they aren’t negotiable.” Vendors have tried to get around that issue by making you scroll through and tick a box at the end of the screen and that may strengthen a EULA’s reputation as a binding contract. “But,” says Teska, “if there is any contract that is found to be ‘unconscionable’ by the court, they won’t uphold it. The courts hate that sort of thing. How much software companies can get away with in a EULA is still an open question, though, one that probably has not been tested in the courts.” So what’s a software (or TV) consumer to do? “The average consumer?” asks Teska. “If you are just going to use the software in the way it is meant to be used, most consumers will never get into a problem with this sort of clause.” The clause is not there to protect DirecTV from average customers. If you are a business and signing that EULA on behalf of your business, Teska suggests you read the EULA very carefully. “In that case, you want to make sure you don’t get nailed,” he says. “In fact, I think a business should always have their lawyer look at the EULA when making software purchases,” says Teska. “If two businesses meet in court, the court is more likely to hold up a EULA when a business, with access to lawyers and experience with contract negotiation — rather than an individual consumer — agreed to it.” But that doesn’t mean your choices are “take it” or “leave it.” “I have seen cases where a business is buying software and gets a EULA shoved at them that they don’t like,” says Teska. And it turns out the EULA is negotiable. “If the company wants your business, they will negotiate that contract just like any other.” And I would argue that consumers, too, can negotiate EULAs. Back in March, irate customers made their feelings known about a clause in an Adobe’s EULA for Photoshop Express. Adobe heard them, had their lawyers take a look at it, and changed it to clarify the clause in question. Again, in September, Google customers were miffed by clauses in the Chrome contract and said so in no uncertain terms. Google changed them. I’m not saying the end results are perfect from everyone’s perspective, but in both instances — and probably many more — the interactions were essentially contract negotiations. You think DirecTV will listen to Tom and revisit this EULA? I suspect, the company — like most consumers — hasn’t actually read the thing very carefully. Technology Industry