I recently updated my iPhone to the new iOS and like any other software update, new service or application there was a lengthy user agreement that required me to click “OK” before proceeding. Not unlike just about everybody else on the planet, I agreed without actually reading the user agreement in order to proceed. It got me wondering, what exactly is this, and more importantly, what’s in that End User License Agreement (EULA) i just agreed to? Unfortunately, the former is easier to answer than the latter. Specifically, an End User License Agreement is a legal contract between a software application author or publisher and the end user of the software. Just to be clear, a contact is a legally binding agreement which creates an enforceable obligation by law, and a license is simply a grant by the holder of intellectual property to another to exercise a certain privilege.
So What the Hell’s In It?
On the most basic level, an end user license agreement is somewhat similar to a rental agreement where the user agrees to pay for the privilege of using the software. Additionally, in most cases, the end user is also agreeing not to inappropriately copy, alter, or disseminate the software without proper permission. Although, under 17 U.S.C. § 117, an end user is absolutely free to use, archive, re-sale and make backups of any proprietary software he or she has purchased.
More commonly, end user license agreements serve to limit the liability of the application developer in case the software essentially damages your computer, loses your data, or results in your iPhone being “bricked.” Speaking of Apple, it seems to be well settled among actual EULA readers that Apple’s end user license agreements tend to be some of the most far reaching over-broad agreements that exist. For example, Apples EULA for its eBook authoring software contains language restricting an author’s use of any and all content produced using Apple’s software! Huh? Yea, that means Apple essentially dictates what you can and cannot do with your content created by using their software! As Ed Bott noted, “[i]t’s akin to Microsoft trying to restrict what people can do with Word documents, or Adobe declaring that if you use Photoshop to export a JPEG, you can’t freely sell it.”
Everything but the Kitchen Sink!
Like my mother always said, “the devil is in the details,” however application developers and attorneys alike realize no one is likely to sift through those details which results in EULA’s containing so much content and legal jargon that end users simply won’t bother to read it. Often times a company’s end user license agreement is contrary to existing law. For instance, a EULA that restricts a user to making only one back up copy is clearly inconsistent with the rights granted under 17 U.S.C. § 117. Presumably, the lawyers who draft these agreements are fully aware of these conflicts; however, they choose to be cautiously over-broad than restrictively narrow. Take Apple iTunes end user agreement that prohibits “creating nuclear weapons!” Or other notoriously ridiculous EULA clauses like Google Chrome’s insanely pervasive EULA that essentially gives Google ownership rights over everything up to and including your first born child! Read ” …you give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services.”
Click Here and You’re Ours!
Interestingly enough, the creepiness of mysterious end user license agreements appears to be so ubiquitous that the creators of South Park did a skit on the perils of not reading end user license agreements and the rights you inadvertently relinquish when you “Click Here to Accept!“
Bottom line, unless you’re insanely board or have infinite amounts of time on your hands, chances are you’re unlikely to carve 15 minutes to an hour out of your day to painstakingly analyze EULA’s before enjoying the brand new toy you just downloaded. I would suggest following Ed Bott’s blog who reads EULA’s so the rest of us won’t have to. Additionally, the makers of EULAlyzer have created free software that will scan end user license agreements specifically in search of inconspicuous language which unfairly binds users to unfair terms. Good luck!