Last time around, I was muttering into my Ovaltine about End User License Agreements—how most of them are a cluster-jumble of legalese that essentially translate to, “This absolves the publisher of all responsibility; you’re on your own.”
Up front, I’m going to say that this is a generalization. It does not apply to all software, it does not apply to all companies. It is not an industrywide standard, but it is an industrywide trend. There’s plenty of boilerplate floating around. Even a weekend warrior marketing a niche program can find something. In fact, the easiest way is to copy the EULA of another software. (Hm. Would that be a copyright violation?)
Obviously, any company big enough to afford a lawyer is going to want that lawyer to review its legal position. Obviously, any lawyer who wants to justify his or her billable hours is going to draft documents that favor his or her clients’ interests. Hell, if I were in the software business, that’s the kind of EULA I’d want.
But let’s put that aside for the moment. Forgetting the legalese, how do we perceive our relationship with the software and the publisher? How do we perceive the boundaries of ownership and responsibility? What is the contract we are presuming?
Let’s start with the concept of ownership. A very wise philosopher of my acquaintance once pointed out that ownership is an illusion. The best we can have is control, and what we call ownership is the general agreement that this piece of the universe is yours to control.
Okay, my computer is mine to control. I get to choose what software I install. I get to choose what information it reports. I get to choose who gets access to information about how I use that computer.
If we accept that as a starting place, then no software publisher should have the legal right or authority to install any program that I have not agreed to. Unless that software is an integral part of the program I have purchased, I should have the option of saying, “No, I do not want your toolbar or your search engine. No, you may not change my browser’s home page. No, you may not install your add-ons or helpful utilities or anything else unless I agree.”
This should be common sense—hell, it should be common courtesy. After installing a piece of software, I shouldn’t have to check to see what other changes the installation program made in my computer. It’s my computer. I’m in charge.
Next point: I purchase software to provide a specific service—video editing, audio editing, image manipulation, word processing, number diddling, website assembly, whatever. I expect the program to work as promised. If it doesn’t work as promised, I expect a refund. This, again, is common sense. And it’s generally why I purchase software through a channel that guarantees a refund if the product doesn’t work for me. Amazon is very good at this.
What else do I expect from a computer program? That it won’t change, harm or destroy anything else in my computer. That it won’t replace or change any pieces of the operating system. That it won’t make itself the default for anything unless I choose to have it be the default. That it won’t rearrange, damage or subvert other programs. That it will behave itself. It’s an employee. (Or, if it’s freeware, it’s a guest.)
Now, the other side. What responsibilities should the software-publisher assume? I expect the software to work as advertised. If it does not, I expect a refund. This isn’t an unfair demand. If a software publisher promises that his product will perform a service, and I purchase the software based on that promise, then we have a contract. (Ask a first-year law student about the contract of the public marketplace.) If the product doesn’t work as advertised, the publisher is in breach of that agreement. A refund is a fair resolution.
But I should not expect to hold the publisher responsible for my incompetence. If I don’t back up my work, if I screw up, if I damage my files or even my machine, I have no right to expect the publisher to reimburse me for my own stupidity.
I’m going to qualify the above. If the program is capable of doing serious damage, like erasing all my files or reformatting my hard drive, I want the software to pop up a big red warning that it’s about to do something really serious and demand at least one conscious and deliberate confirmation that’s really what I want to do. If the publisher lets the software do that kind of damage without appropriate warnings, that’s like hiding a self-starting time bomb in every package.
Next: It’s not unreasonable for a EULA to include a fair-use provision. I have no problem with that, but the fair-use provision should recognize the needs of the user. I like to install software on my main machine, my backup machine and the laptop I use for traveling. I’m the only person using the software, I shouldn’t have to buy three copies. The idea that software has to be one license/one machine might be appropriate for the corporate environment, but for the home user, how about one license/one user?
And yes, the publisher is entitled to some protection for his side of the contract too. I agree not to copy, give away, distribute or resell its software as part of something else. I should have the right to resell my copy if I erase it off my hard drive, but beyond that, I agree that the copyright on the program belongs to the publisher and all rights attendant to that ownership belong to the publisher. I agree not to infringe on its copyright.
All of the above seems a sensible contract to me, and I think it’s possible to state that in plain English. Have I missed anything?
What do you think?
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.
