Thursday, 27 August 2009

Software ‘Licence’ Compliance - It’s Your Legal Obligation?

My interest is in the second part of the title - “It’s Your Legal Obligation”. This eye catching statement is the heading of the paraphrased paragraph following – and the original. Firstly however, it is the contents of the paragraph I will address as it is important to have a correct view of the statements within to understand why I believe the title is misleading.

“1. It’s Your Legal Obligation

The Developers’ End User License Agreement (EULA) is a contract between you and ‘The Developer’. It governs and protects your right to use ‘The Developer’s’ software. Knowing and complying with the terms of the EULA keeps you from breaching this contract, and on the right side of the law”.

Used as the opening paragraph - in a handout distributed by a software developer – the paragraph makes a very definite statement relating to the contractual nature of the EULA which is, in most cases, relating to software, far from factual. It goes on to say the EULA "governs and protects" a users rights, concluding; “knowing and complying with the terms of the EULA”, somehow keeps the customer(s) “on the right side of the law”.

Handed out at a promotional event this attempt at hoodwinking customers might appear to have been a good idea; but was it? Are the statements correct? I have already demonstrated many/most software EULA are not contracts, despite what software developers would like us to believe. In saying that, it then follows ‘knowing and complying’ does not ‘protect’ a user nor keeps the customer(s) on the ‘right side of the law’.

The one comment going close the real function of the EULA is the mention it “governs” your right to use ‘The Developers’ software. It has long been my opinion ‘click thru EULA’, found in many pieces of software, are nothing more than a – desired - code of conduct provided by the ‘The Developer’. It does not actually govern the user; it only outlines how ‘The Developer’ wants the customer to behave after ‘purchasing’ and, whilst using their software.

So, given EULA, in the main, are NOT contracts, provide no protection – for the customer/user – and, play no ‘real’ role in keeping the user on the ‘right side of the law’; it seems somewhat contradictory to headline those statements with “It’s Your Legal Obligation”

To say, “It’s Your Legal Obligation”, is a ‘smoke and mirrors’ statement – made by ‘The Developer’ for no better reason than to cloak the EULA in credibility it does not deserve and cannot support. Like other magic tricks; if the user wants to believe they have agreed to a contract that is what they see. The reality however is considerably different. The dangers of not fully understanding how ‘The Developer’ is performing the ‘trick’ could be considerably more costly – to the user - than watching coins disappear and re-appear in a magic show.

EULA, as found in software, have undergone considerable change; in some cases those changes have not always been made in the best interests of the customer. That fact, in itself, is of no surprise; after all, ‘The Developer’ would argue, ‘it’s our software therefore we can do what ever we want’ – and they do! Their statement might be true except for the fact ‘The Developer(s)’ wants to insist the EULA is a contract: I argue it’s nothing more than an unenforceable, suggested, ‘code of conduct’.

As a ‘code of conduct’ I would agree ‘The Developer’ can outline any conditions of use s/he chooses and the users will decide – without penalty – if s/he complies or not. However, if a EULA is to be accepted as a contract, it MUST be negotiable and an agreement between parties. Failure to comply, by the user and or ‘The Developer’, once the terms have been agreed on by both parties, is no longer an option and penalties may apply to both parties. Simply stating the EULA is a contract, or selecting the “I Agree” button does not make a non-negotiable EULA a contract!

So, the statement that caught my eye, “It’s Your Legal Obligation”: as a heading performed the function of drawing my attention; but as it is misleading it also draws my criticism. Misleading because it wrongly primes the reader prior to reading the statements that follow, which are, misleading and or downright false!

Now, to vendors and ‘The Developer’ I say this; “It’s Your Legal Obligation”, to be truthful in promotions; about your products and what you believe are your customers’ obligations in relation to you and your products. Furthermore, “It’s Your Legal Obligation”, to ensure you are not abusing your very privileged position by conducting surreptitious activity and using customers computing systems for your own purposes!

It might have seemed a good idea - ‘Developer’ - to infer how your customers might stay “on the right side of the law”; but are you?

“Eh! What on earth you getting at? Are you suggesting ‘The Developers’ are using their customers computing systems for their own purposes”? Stay tuned; all – or more likely only part – will be revealed, next!

In the interim here is a question for readers to consider, answer and or comment on: “At what point does it become legal for ‘The Developer’ to use their software products – critical business software – as the vehicle to collect and remove data, of any kind, from your business and design computing systems without your authorization and oversight?”

24th May 2007

Buyer Beware…’, was the title of a letter published in the Sydney Morning Herald on the 24th May 2005. It detailed a fundamental shift in the use of a particular EULA away from being a tool that defined the rules of use for software – reasonable - to a legally enforceable contract containing a number of questionable conditions including one granting the licensor, "the right to conduct an audit on your premises or by electronic means"; unreasonable!

The EULA moved from being a contract defining what you can and cannot do with software to a contract, if accepted unchallenged, that specifically gives the licensor access to your premises, business, design and computing systems!

Caveat emptor, the Blog, is an extension of that original letter and highlights my original, unanswered, requests relating to the addition of Audit clauses in my existing Subscription and Licence contracts. Requests for information and detail that I, as an established licence holder and customers, have every right to; and information the licensor should be compelled and obligated to provide!

If my goal is considered offensive, unjustified or unreasonable it will only be by those who believe protecting their IP is more important than that of others. To them I make no apology; if the issues raised previously had been broached correctly, and in the first instance, they would have long ago passed by.

Caveat venditor: ‘Like a dog with a bone’, I have absolutely no intention of letting go of these issues until they all are sensibly discussed and answered as I believe they should be!