Would software licensing terms be any less nasty if we could read them before we made our purchase decision? It's an interesting question, and one I think is going to be answered in the not-so-distant future.
A few weeks back I wrote about a legal settlement involving Microsoft, Symantec and Adobe plus three major retailers regarding the availability of EULAs and the right to return opened software. And while many readers agreed it's an important victory for customers, some thought it didn't really change anything. "You can contact any of these manufacturers and request copies of the EULA prior to purchase," wrote one reader. "Even if you don't have a computer, you can phone, or write to obtain a copy of a EULA. Not being able to read it before purchase was her (the plaintiff's) own fault, for not thinking logically."
Actually, the reader is wrong about that, particularly concerning Microsoft's practices and philosophy before this lawsuit was filed. Back when UCITA was being drafted, Microsoft representatives and their cohorts from the Business Software Alliance were particularly adamant that software publishers should not be required to present license terms before purchase, even in online transactions where it's simple to do. And, it so happens, in 2002 I went through
the exercise of calling Microsoft -- as a prospective customer, not a journalist -- to ask that they send me the EULA for one of its products that was not to be found on their website. They ultimately refused to email, mail, or fax it to me, saying it was their policy that customers could only see the EULA after purchasing the product.
At the same time back in 2002, I also checked the websites of other major software publishers to see how many of them made their EULAs available. With a single exception, none put their license agreements in a place where a visitor to their website would be likely to find it. Symantec seemed to have no EULAs on its website at all. When I called them as a prospective Norton AntiVirus customer wanting to see the license agreement, they did finally agree to fax it to me.
The single exception among publishers was Adobe. Even before the lawsuit, Adobe had all of its license agreements readily accessible on its website, a fact that leads to a couple of points. One is that, just because customers could read the Acrobat EULA before going into the store, it doesn't mean they were obliged to do so. They still should have the right to reject the EULA when they eventually do see it and get their money back. In fact, the main change in its procedures that Adobe agreed to in the settlement was to provide a refund to customers who buy the product at a retail store rather buying it from Adobe directly.
There's one other thing about Adobe. Perhaps it's just a coincidence, but along with being the one big publisher that's had its EULAs posted all along, it also has the most reasonable EULAs, at least of any of the BSA member companies. You will recall the stark contrast we saw between the Photoshop CS and AutoCad 2005 license agreements when we compared the terms of both in detail. And, perhaps it's just again a coincidence, but Autodesk is even more secretive about its EULAs than Microsoft ever was.
It's almost like there's a sliding scale. The worse a software publisher's terms are, the more it wants to keep them hidden until after you've bought their product. And perhaps the reverse is true as well. Like I said, I think we're going to find out. The settlement in this lawsuit was definitely a step in the right direction, but there are more steps about to be taken, so stay tuned.
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1:41:16 AM 
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