We’ve seen them all before: End-User-License-Agreements, Terms of Use, Privacy Policies: just a bunch of legal crap that you need to wade through before getting to that new game, or web app or even just an update to iTunes. There’s always some sort of wall between you and getting to your software. More often than not, I just skip past the pages and pages of text rather than take the time to read them. But should you stick a paper contract in front of me, I’ll read every word. I find that very weird.
Consider this: A fictional software company that I’ll call WidgetSoft creates a program I’ll call CoolWidget Pro. In the software license for CoolWidget Pro: which you’ll have to agree to in order to install it on your computer: WidgetSoft says that by clicking “agree,” you allow WidgetSoft employees to take your computer and/or any other electronic equipment that you may have. That is a major problem. If it’s possible to sign your life over to a company by clicking one button on a computer, we really need to rethink the way we handle contracts.
Granted, most EULAs aren’t nearly half as evil as the example I’ve created. For the most part, it’s standard stuff talking about how you won’t sue the company you bought the software from when your computer breaks, even if you have reason to believe that piece of software was the thing that broke it. The agreement is also likely to discuss what rights the software company has as far as the code powering the program, which usually includes not being able to reverse-engineer the source code or distribute it for free on the Internet. You’re not signing your life away, certainly, but you are giving up certain privileges in exchange for use of the software.
So if most software licenses aren’t nearly as cruel as the one I’ve created for CoolWidget, why is there a problem? In my mind, there are two reasons: The first is that there are companies out there who will at least attempt to implement stranger and stricter terms in their EULAs. The second has to do with our own laissez-faire attitude towards contracts.
The first is an issue because although there isn’t a lot of existing case law when it comes to software licenses, most of the current cases have said that the terms in the agreement are binding. So, if WidgetSoft really did take your computer, it’s possible that contract law would be on their side.
The second issue is more of a large-scale problem. If we’re so used to just signing off on legally binding documents without reading them, what happens when someone really signs their life away without paying attention? In August of 2009, people were shocked to learn that the Burning Man Organization (which is in charge of the festival of the same name) had added a clause to the Terms and Conditions of the event which made all photos and videos taken at Burning Man the creative property of the organization. The fact of the matter is, people just assumed that Burning Man would be the same as always, without paying attention to the contract into which they entered.
In a perfect world, we would all be able to spend as much time as possible reading contracts, and making sure that we understand what they mean. Unfortunately, this is not a perfect world, and barring some revolutionary advancement in how these contracts are delivered, I don’t see anything really changing. That said, I’m going to try to stay on top of my contractual obligations, at least to some degree.
