I took my first ride on a jet plane in 1966. It was a 707 flight from Los Angeles to Miami. From there, we went to New York, and then finally back to Los Angeles.
I flew economy. The seats were comfortable, the flight attendants were friendly. They served steak dinner, gave us free drinks, free cigarettes, almonds, and various other amenities like hot towels. That was in economy class. Everybody was having a great time.
In 1973, I was regularly flying back and forth between Los Angeles and New York. Most of those journeys were in first class. Again, great food, free drinks, hot towels, the best imaginable. One early 747 flight had a piano bar. On another, I spent half the flight in the upstairs lounge chatting with Mario Puzo, author of “The Godfather.” Generally, the flights were only half full, so if you wanted to stretch out across three seats for a nap, you could. Everybody was enjoying themselves.
A couple of months ago, I had to fly cross-country again. Economy class. I was jammed into a seat way too small for me to have any real legroom. There was no food served, unless I brought it myself. Drinks were expensive and the only amenity was a bottle of water and some peanuts. Staff was rude. The passengers were grumbling like a mob of villagers who’d just found one of their children drowned in the pond beneath the mad scientist’s castle.
For many years, various consumer groups and legislators have worked to pass an “Air Passenger Bill of Rights.” In 2011, Congress finally responded with the “Enhancing Airline Passenger Protections” rule. While it was a step in the right direction, it remains insufficient. Anyone who has flown on a domestic airline in the last decade knows this from personal experience. The indignities start at the check-in counter and don’t stop until they’ve lost your baggage at your destination. Cattle being trucked to a feedlot get more consideration than the average airline passenger—possibly because a steer has more market value.
Now, what does any of this have to do with software?
Have you ever read a EULA—an End User License Agreement? Most people don’t. They just click on the “I have read the license and agree to the terms” box. (Me too.)
The EULA is one more way that companies absolve themselves of responsibility. Roughly translated: “We do not promise that this product will do anything useful. Install it at your own risk. If it screws up your computer, you agree you have no right to sue us. We’re not responsible for any mistakes this product makes. By clicking this button, you agree to all of this, plus you give us permission to poke around inside your computer and do whatever we want as long as you don’t find out about it.”
The key clause in the above is that you give up your right to sue. In fact, the latest corporate trick in many industries is a license agreement in which you give up your right to sue. I’m not a lawyer, I don’t even play one on TV, but something about “you give up your right to sue” strikes me as flat out wrong.
Supposedly, the American system of justice guarantees everyone equal protection under the law. Supposedly, the system guarantees a level playing field. Supposedly, the system provides access to a legal avenue for redress of grievances. Prenuptial agreements might be fine for weddings, but not for the purchase of products where the user is entitled to the services he’s paying for, including some guarantee of responsibility on the part of the provider.
Just as some airline passengers have sued the airlines for things like being stranded on the tarmac for nine hours, shouldn’t software customers have some legal recourse as well? Shouldn’t there be a Software User Bill of Rights?
Last time around, I wrote about rude software and used as an example a program that promised to reimage damaged parts of the operating system, but also added ad-based toolbars to my browser and changed my home page and search engine—all without permission.
I view that behavior as a criminal act. It was an act of deliberate sabotage. It damaged the way I set up the software in my machine. It interfered with my privacy and with my right to use my machine according to my personal preferences. But according to the EULA, I have no right to sue the publisher. I have no legal redress.
If customers had the right to sue the publishers of a product that mucks up their machine—or if they had the right to sue malware authors—it would certainly change the software landscape. A couple of class-action lawsuits would send a very strong message to companies that have so far profited from the users’ inability to seek legal recourse.
But so far, there hasn’t been any strong push to challenge the restrictive terms of software EULAs. There hasn’t been any effort to create a Software User Bill of Rights. (There is an Internet Privacy Bill of Rights, but that’s not what I’m talking about here.) Probably because there’s no money at stake. It’s just not cost-effective. Establishing the appropriate legal precedents would be time-consuming, expensive, and would run into serious corporate resistance. Not a lot of lawyers want to climb that mountain right now.
At the time of this writing, the consumer is still pretty much on his own and doesn’t have an easy avenue for seeking redress. While it won’t undo the damage suffered, a consumer who has been burned can and should use the power of the Internet to warn other users. Write about it in your blog, post a substantial review on Amazon, start discussions on Facebook, create an internet meme: Watch out for this product. It’s not safe.
Consumers can and should protect themselves ahead of time by seeking out accurate information on any unknown piece of software before installing it. If enough people spread the word about scams and Trojans, perhaps some of the damage can be minimized.
But the larger issue—that the legal system has yet to provide serious punishments for publishers who distribute software for the sole purpose of invading and damaging the workings of the computer—remains an unexplored continent.
What do you think?
This discussion continues with Part II.
David Gerrold is the author of over 50 books, several hundred articles and columns, and over a dozen television episodes, including the famous “Star Trek” episode, “The Trouble with Tribbles.” He is also an authority on computer software and programming, and takes a broad view of the evolution of advanced technologies. Readers may remember Gerrold from the Computer Language Magazine forum on CompuServe, where he was a frequent and prolific contributor in the 1990s.