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By Jack Ganssle

Liability

Published - 5/27/2005

Have you ever actually read an End User License Agreement (EULA)?

A company recently asked me to evaluate their new tool. The EULA stated that by installing the software I was became a reference client for the vendor. Great - just what I need. Email from prospective purchasers of the product. How this provision is supposed to help a paying customer eludes me. I clicked cancel and complained.

Itís astonishing how little software vendors promise and how much they hide behind the EULAís legal umbrella. Consider this portion from the World of Warcraftís (http://www.worldofwarcraft.com/legal/eula.html) license:

9. Limited Warranty. Licensor expressly disclaims any warranty for the Game, including the Game Client and Manual(s). THE GAME, GAME CLIENT AND MANUAL(S) ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF CONDITION, DEFECTS, USE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, OR NONINFRINGEMENT. The entire risk arising out of use or performance of the Game, Game Client and Manual(s) remains with the user.

In other words, thereís no recourse if the company ships a product that initiates the China Syndrome.

It then goes on to say:

Notwithstanding the foregoing, Licensor warrants up to and including 90 days from the date of your purchase of the Game that the media containing the Game Client shall be free from defects in material and workmanship.

Swell. The nickel's worth of plastic - that the company buys from someone else - will be fine. They donít even accept responsibility for properly burning the program onto the CD.

BJís Wholesale Club filed a suit against IBM last year alleging that defects in IBMís software allowed an organized-crime ring to steal thousands of credit-card numbers. BJís themselves are being sued by a number of financial institutions about the fraudulent credit card usages. Interestingly, IBM says their contract with BJís indemnifies them from any security breaches. It sounds strikingly like another case of the litigation-shirking EULA.

According to http://www.benedelman.org/spyware/claria-license/ the license for the Claria package installed with Kazaa is 56 pages long, longer than the US Constitution. Who has the time or interest to read that? I did. Like the others it warrants nothing.

The proliferation of software into everything makes me worry that EULAs wonít be far behind. When you buy a car the automaker warrants its performance. Will this change? Will the vast amount of firmware in modern cars mean that one of the papers weíll sign at the dealership is a EULA?

Customers have rights, too. We trade our hard-earned cash for a product that should work. When it doesnít weíre out much more than the money. It takes time to install, learn, master and eventually uninstall the program. It may have wreaked havoc on our computer, costing more time to clean up the mess.

Many products are very mature. New versions of office suites, for instance, offer little extra functionality. Could the next competitive ground be EULAs? Iím astounded to see Windows XPís license (http://www.microsoft.com/windowsxp/home/eula.mspx) includes the sentence: Microsoft warrants that the Software will perform substantially in accordance with the accompanying materials for a period of ninety (90) days from the date of receipt.

An F-22 experienced a crash last year which has been attributed, at least in part, to a software error. Another bug so overstressed an earlier F-22ís airframe that itís thought that particular plane will never fly again.

I wonder if the pilots have to click ďacceptĒ on the Raptorís EULA before firing up the engine.

Whatís your take on EULAs that promise nothing?