Is there enough common ground between software customers and software publishers to actually agree on what license agreements should say? Perhaps I'm one of the few who thinks so, but one reason I do is the response of some in the software industry to our search for fair EULA terms.
"What we are trying to discourage with a EULA is the unlimited liability we would otherwise face every time we sign a deal," wrote the CEO of a small software company that sells to large enterprise customers. "Most of these companies employ more lawyers than I employee people. So for us it doesn't matter whether in the end we would be proven liable or not, we can't afford to fight the battle. Unfortunately lawyers make their money by finding loopholes in agreements, so vendor lawyers make their money eliminating the possibility of loopholes. So we end up with agreements that mean nothing because they provide no guarantee at all."
Big software companies need some liability protection against little customers as well, said another industry professional. "I agree that most modern EULAs go way too far, but the vendors need protection as well as the customers," wrote a consultant who has worked with major publishers. "Unfortunately, the real genesis of this whole fiasco has very little to do with software piracy and everything to do with our increasingly litigious society. One major area of liability limitation vendors want and need is some kind of protection against stupid users. I see this happen all the time -- folks complain that something is broken when the reality is either (a) the software works as designed, but the user does not like the design, or (b) the user is not using the software properly as documented. The classic story is the one about the building contractor who used Lotus 1-2-3 and misquoted an estimate by millions because his @SUM() formulas did not define the entire range of cost cells. He actually sued Lotus for a mistake of his own making ... and lost, fortunately. Today in our suit-happy environment, this kind of protection is needed even more than it was then."
What does need to be included in a software license agreement? "We don't need the legal labyrinths that EULAs so often turn out to be," says another industry professional. "It doesn't hurt to repeat some of the basics -- basics, mind you - of copyright law. What's stated should be in factual accordance with the law, not something like 'any copy is forbidden by law' -- that's a lie, since backup copies are permitted, even under UCITA. And it does have to include some level of disclaimer. I fully agree with you that it's unconscionable to release software that has known, undocumented, major flaws. On the other hand, it is a physical impossibility to absolutely guarantee that any code more complex than a three-line exercise will be perfect. Just as a simple example, there have been many cases when a program doesn't fail until the nth time it's run. But how do you know what 'n' is when you're doing your testing?"
So if we're willing to accept the fact that software isn't perfect - which I think most of us already know anyway - perhaps we can get a little something in return. "What is fair?" mused the CEO who sells to enterprise customers. "My ideas may not be universally applicable, but they would work in our part of the industry. First, we as the vendor need liability limited to the total purchase price. Second, we need some sort of third-party arbitration as opposed to a court-based remedy. Court costs alone can make every case a 'bet the company' proposition. In exchange for these concessions from the customer, vendors should provide a guarantee in the form of a list of capabilities of the product, aka spec sheet. Here is what this product does and here are the limitations. Obviously this should be available to the customer before purchase of the product. Additionally, customers should have access to as much knowledge as the vendor has in terms of existing bugs in the product. This is not hard to accomplish with current web technologies. Customers should expect vendors to make all reasonable efforts to fix bugs that prevent the product from meeting its capabilities with the threat of an arbitrated settlement if the vendor is unable to comply. These simple steps would lower the costs associated with software while providing far better service to the customer."
Doesn't it sound to you like somewhere in there lies the basis for a reasonable bargain between software publishers and software customers? I think there is. Next week let's talk about what steps we need to take to make it happen.
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