Now that my Australian friends aren’t talking to me anymore (I can’t help it, the Simpsons are funny!) I’ll turn my attention back to the world of licenses (I’m a party guy)
I read on the New York Times’ Freakonomics Blog a pretty interesting and clever article about making anti-EULA clauses via email. The EULA, of course, is End User License Agreement most famously used by Microsoft in their “if you break this shrinkwrap, you accept the terms…” maneuvers. This article posits that maybe the customer can send their own EULA right back to the company whose software or service presented them with a EULA to begin with.
Something like:
READ CAREFULLY. By reading this email, you agree, on behalf of your employer, to release me from all obligations and waivers arising from any and all NON-NEGOTIATED agreements, licenses, terms-of-service, shrinkwrap, clickwrap, browsewrap, confidentiality, non-disclosure, non-compete and acceptable use policies (”BOGUS AGREEMENTS”) that I have entered into with your employer, its partners, licensors, agents and assigns, in perpetuity, without prejudice to my ongoing rights and privileges. You further represent that you have the authority to release me from any BOGUS AGREEMENTS on behalf of your employer.
I like it. This appeals to some mischievous side I have and to my non-legal brain has about as much merit as most presentations of EULAs. Still, I do think it misses the point a bit.
There was one passage in this article that caught my attention which leads me to why they are missing the point:
In thinking about this issue, it’s useful to separate the question of whether the seller’s or the buyer’s terms are reasonable. There are certainly plenty examples of obnoxious EULAs that have prohibited users from criticizing the seller’s product. But anti-EULAs could also be oppressive — for example, voiding even the reasonable restrictions of the Free Software Foundation’s GNU General Public License.
I wonder if our friends at Freakonomics have actually looked into what has happened to those who have broken the conditions of the GPL? If my memory serves me correctly, only the most recent case has someone actually been taken to court for doing so. Mostly people are sent letters asking them to correct their mistake. Am I wrong in this? I really don’t think so. If anything, the FSF probably could have been more aggressive in this regard.
But let’s not forget that the GPL and a EULA are very much the same thing: copy-right: the right to copy. All this is is a method that defines the rights a creator is granting for someone to have a copy. If you really don’t agree with the rights you are being granted – by all means don’t use it. You can make a fuss about it. You can tell your friends, or even tell the company why you aren’t using it. Yes, the shrinkwrap acceptance is backhanded but just because you don’t like that practice, the license the company has chosen isn’t somehow magically voided. If you want to use their software, you accept the terms. It doesn’t get much simpler.
The Freakonomics guys suggest that we can get around these pesky rights decisions through online payment systems offering anti-EULA protections when paying through their service (of course, that comes after accepting the EULA for their services). Is the idea to use the muscle of Paypal or Google Payments to come down on the evil EULA-doer? This cheapens the law…. or at least moves it into a market-driven corporate realm where the bigger the market-cap, the more correct they are. “I paid you through Google whose market cap is $211B, therefore your copyright is void.” That, to me, is scarier than a EULA.
The system that really needs to be in place is one of education. Lets inform companies that overly-protective rights are not consumer-friendly and are simply bad business. What better way to start that education than clicking on “I do not agree”?
