In the UK last year, the National Consumer Council purchased 25 products for research, to find that only four had a URL pointing to a copy of the End User Licence Agreement (EULA) that could be read before opening the box, while just six had a paper copy that could be read before breaking the seal on the software disc itself.
Seven products left buyers with no choice but to read the EULA onscreen as part of the installation process.
The NCC went as far as reporting 17 companies - including Adobe, Microsoft and Apple - to the UK's Office of Fair Trading.
Sadly, there's no corresponding study in Australia, and it's hard to get any local data at all, but the results from the UK study highlight the significant imbalance between the rights of the consumer and the rights of the holder. EULA terms don't tend to change dramatically between countries and regions, so it seems possible that the EULAs you read may fall foul of Australian Fair Trading laws.
With publishers slipping draconian and sometimes even downright bizarre terms and conditions into their EULAs, and consumers often agreeing to that contract without even reading it, we decided it was time to ask software publishers and lawyers some difficult questions, and reveal just what rights you have with the software you've purchased.
Who reads the EULA?
The Business Software Association, has a vested interest in ensuring that people read the terms and conditions of software and abide by the licensing restrictions. But it admits they have no information about how many people read the terms and conditions before installing software.
The only data we could find was from a UK study by the Federation Against Software Theft (FAST), which found that just 28% of people read the Ts and Cs, while the rest routinely click ‘I Agree' without giving the EULA a second glance. It's precisely this lack of interest that can be used to the advantage of the software publisher. Take the example of the GAIN Publishing ‘eWallet' product, which was accompanied by a 2550-word EULA.
If people had read only the first paragraph of the seven A4 pages of legalese, they'd have found the software was free of charge ‘in exchange for your agreement to also install GAIN AdServer software (GAIN), which will display Pop-Up, Pop-Under, and other types of ads on your computer based on the information we collect as stated in this Privacy Statement'. Later clauses revealed you were agreeing to let the company collect information about your web-surfing habits and computer usage as well.
Challenge that in court and you're likely to fail, because once you click ‘agree' that's precisely what you're doing, as long as the EULA is reasonably clear and doesn't attempt to hide its intent.
When we asked the ACCC about the fairness of EULAs, they pointed out that when it comes to the legality of EULAs you need to look at the Trade Practices Act 1974. This has provisions that protect consumers against deceptive or misleading conduct. This imposes a duty on the supplier to ensure that written terms are expressed in clear and intelligible language, but the onus is on the consumer to ensure you are satisfied before you agree to the terms.
And there lies the rub: just what is "misleading or deceptive" in a EULA is up for considerable debate. Graham Arthur, an antipiracy attorney with Microsoft, insists that Microsoft is constantly trying to ensure that its EULAs are "easy to understand" and "as clear as possible with regards to end users' rights".
He admits that because these agreements serve a specific legal purpose there are "inevitably details that are couched in legal language", but argues this is intended to be precise rather than obscure. Indeed, Microsoft positions itself as one of the good guys, with Arthur pointing towards the blog written by its licensing escalation manager, Emma Healey, as proof.
Here, you can find an informal forum answering questions about licensing issues. But surely the fact that Microsoft needs, as Arthur puts it, to "demystify some of the complexities behind the legal terminology" suggests that EULAs aren't clear enough in the first place?
Some in the software publishing industry don't think there's a problem with EULAs at all. Take Roger Greene, founder and CEO of Ipswitch. He told us that in most cases, "EULA terms are so similar that reading and understanding a EULA is unnecessary. Most people know that they may not make or distribute copies of their purchased software." Mind you, he also told us that if anyone "egregiously violated our EULA, we would take legal action".
One of the biggest concerns with EULAs is there's often no easy way to review them before you've purchased the software concerned. Downloadable software can point you to a copy of the agreement online, but what of a shrinkwrapped box bought in a store?
Often there's no mention of the EULA, and not even a pointer to a website to read it before buying the box. According to Kit Burden, head of the technology and sourcing group with DLA Piper, this is unlikely to change.
"For the software providers, the cost of outlining the EULAs in advance on product packaging or in-store far outweighs the potential costs of consumer complaints or legal action," he says, adding "it simply isn't in their interest, nor are they legally obliged, to change their means of sale".
So where do you stand as a consumer if you buy shrinkwrapped software and then discover you disagree with the EULA and want a refund? The law is uncertain in this area because it's never been properly tested. This creates something of a dilemma, since EULAs are thought to be enforceable, despite often only being accessible after purchase.
Just opening the shrinkwrap packaging may constitute agreement to the contract within. Either the terms are unenforceable or the customer should have the right to return the software upon seeing the terms, but try telling that to the shops that baulk at providing refunds for opened software that could easily have been copied before the return.
Urban myth would have it that you can rewrite the EULA and email it to the publisher, and if they don't respond you have a valid licence for the software under your own terms. However, the publisher would need to accept the revised terms to legitimise them, and the courts would most likely rule that the consumer should have stopped using the software if the publisher hadn't explicitly agreed to the revised conditions of use.
A time for change?
Although it's easy to think that the "stupid EULA" debate is all a bit of a laugh, there's a serious side to it. Think how spyware and adware can be delivered courtesy of the bundled application, and the obfuscation of a cleverly worded EULA that gives the software publisher permissions to install that unwanted additional software.
There have even been cases of spyware that use the EULA to prohibit antispyware organisations from downloading, running or examining the software in question. A reminder of why you shouldn't click through those "I agree" buttons willy-nilly.
While most licence agreements are pretty fair and not malicious in intent, most of them are also written in a legal language that often precludes the layman from realising it. EULAs need to be simplified, but without affecting the rights of the publisher or the IP holder. The trouble is that there are no industry groups or bodies really taking any lead toward clarifying EULAs.
One answer could come from a free download called EULAlyzer , which can dig out the potentially problematical text from a EULA and present it for clarification. It's time the software makers rendered such software redundant, and provided straightforward user licences that aren't submerged in legalese. Failing that, perhaps the Office of Fair Trading will twist their arms. Don't hold your breath, though.