More EULA Madness
April 14, 2006
The Brothers are continually frustrated by the End User License Agreements (EULA) that software manufacturers make users accept before the user can begin using a program on their computer. Keeping in mind the Fine Print for this blog, the Brothers perspective is that software manufacturers absolutely have the right to protect their intellectual property. But the current EULA style is problematic for several reasons: rarely can the user easily read the entire agreement prior to beginning the installation of the software, and seldom are the terms and conditions written in a clear and concise manner that communicates what the user can and cannot do with the software.
Basically the EULA appears to preserve all rights and protections under the law for the software manufacturer while yielding no rights or remedies to the user even when the software does not perform as advertised, or is badly written and full of bugs.
The WinFX Runtime Components EULA
On March 11th, a Microsoft blogger provided a link for customers to download the Windows Vista Product Guide. It should be noted that since that time, Microsoft has withdrawn the document and says that the document was released inadvertently.
Nonetheless the document was formatted in the new Microsoft XML Paper Specification, which means that to read or print the document a user needs either a beta copy of Windows Vista or the beta of the WinFX Runtime Components, which install WinFX on older versions of Windows.
The WinFX Runtime Components 3.0 Beta 2 End User License Agreement contains the following statement:
5. SCOPE OF LICENSE. The software is licensed, not sold. This agreement only gives you some rights to use the software. Microsoft reserves all other rights. Unless applicable law gives you more rights despite this limitation, you may use the software only as expressly permitted in this agreement. In doing so, you must comply with technical limitations in the software that only allow you to use it in certain ways:
The EULA then lists several things you cannot do with the software including:
* work around the technical limitations in the software;
Chock Full of Technical Limitations
Rarely does beta software work correctly. Beta software is typically chock full of technical limitations, or more simply stated, bugs. The nature of beta software, and the reason why companies typically distribute beta software is to enlist the help of users to expose the technical limitations so that they can be fixed. You are pretty much guaranteed that beta software will have technical limitations and there will be problems.
And such was the case with the WinFX components and the Vista Product Guide. The Brothers could not open the document, even after installing the WinFX components. All the Brothers got when they tried to open the document was a long list of error messages that the program spawned.
Now the Brothers have an idea. Why not try to open the document in Visual Studio, which can often open files when the software that created the file is either unavailable or fails. But does opening the document with Visual Studio constitute a work around?
According to Wikipedia a work around is:
A bypass of a recognized problem in a system. A workaround is typically a temporary fix that implies that a genuine solution to the problem is needed. Frequently workarounds are as creative as true solutions, involving out-of-the-box thinking in their creation.
The Brothers are fairly certain that attempting to open the document with Visual Studio would work, but doing so would workaround a technical limitation in the software. The Brothers would love to file a bug report, and as part of the information they supply with the report they think it would help if they answered the question as to whether or not Visual Studio could open the file. Such information might just be the clue that would help Microsoft’s testers either reproduce or even solve the problem.
But alas, it is forbidden. So the Brothers can only upload the log list of errors generated by the WinFX Runtime components as part of any bug report and leave it at that.
The Usable EULA
So how would the Brothers craft this clause, again, remembering the Brothers are not lawyers but merely users? The Brothers would use a format that clarifies what users can and cannot do, for example:
You cannot try to get around or remove any copyright protection mechanisms, any code designed to restrict the copying and illegal distribution of this software, or any code that stops the software from running at some future date.
Lots of prerelease or evaluation code includes a ‘time bomb’ routine to stop the software from running at some future date, typically 180 days after it was first released or installed.
You can attempt to workaround any bugs or problems with this software for the purposes of reporting the bug or problem so that it can be fixed for the final version of the software.
There—isn’t that better?
Although this example is based on a Microsoft EULA, non of the other software manufacturers do a better job of writing an understandable EULA.
Almost all software companies claim they do a lot of usability testing to ensure that customers can both use and get value from its products. But it seems pretty clear that none of them ever usability test a EULA. Imagine your average mom in a usability testing lab with the lawyers who wrote the EULA secretly observing the test from behind a one-way mirror. There is mom reading a EULA and then telling the interviewer what she thinks the term or conditions allow her to do? Imagine the lawyers observing from behind the one-way mirror as poor old mom struggles to state what it is she just read and finally just gives up and clicks the agree button.
Now do you think that any of the observers of such a EULA usability test would be all that concerned by how confused the participant is? Think they are going to rush back to their office and take another stab at making the agreement clearer? Or would they celebrate when the participant, like the rest of us just gives up and says: “Enough, enough, I agree, I agree! Please don’t make me read any more!”
Wouldn’t it be great if companies went back and made sure that their customers who have to agree to the EULA actually had a reasonable chance to understand what they were agreeing to. But maybe if users understood how many of their rights they were surrendering just to run a software program they would find an alternative program with a more understandable EULA.