I'd hoped by this point I might be able to announce the winner of my most recent poll on the worst EULA terms, but that won't be possible. Searching through the small print, readers have found three very worthy write-in candidates that also merit our consideration. And, based on their history, I should have known these vendors would be contenders.
After all, Microsoft and EULAs have always gone hand-in-hand. Developers in the Visual FoxPro community have been puzzling over some changes Microsoft made in the EULA for the new 9.0 release. In particular, they've been scratching their heads over this decidedly cryptic passage:
"The software is engineered to allow you to use it in certain ways. You must comply with these technical limitations. For more information about them, see the software documentation. You may not ... work around technical limitations in the software..."
No work-arounds allowed with Microsoft software? Just imagine how far Microsoft would have gotten if that had always been the rule. Not only is it rather extraordinary for the EULA to say you only use the software in those "certain ways" the vendor intended, you have to go read the manual if you want to find out what the limitations are. What were Microsoft's legal eagles trying to accomplish here?
Well, history does provide a few clues. The last time the Visual FoxPro EULA changed, it was to try to discourage use of VFP runtimes with Windows emulation software running on Linux. I would guess similar motives apply here, as that would also help account for the vagueness of the restriction. As a convicted monopolist, Microsoft has to be careful about using terms that are too clearly anti-competitive in its license agreements, as that might be construed as misuse of copyright.
An even more faithful recording of history seems to be taking place in Intuit's fine print. In response to my recent story about the Quicken sunset policies, several readers pointed out the relevant language in the Quicken 2005 EULA:
"Intuit shall have the right to change or add to the terms of this Agreement at any time, and to change, delete, discontinue or impose conditions on any feature or aspect of the Intuit Software (including but not limited to internet-based services, pricing, technical support options, and other product-related policies) without notice. Online services, such as downloading financial data from your participating bank, credit union, credit card, brokerage, mutual fund accounts, online bill pay, downloading stock/fund quotes and news may expire in accordance with Intuit's then effective product retirement/sunset policy available at www.quicken.com/sunset. For the latest version of this Agreement go to www.quicken.com or such other site designated by Intuit."
For those of you who have wondered how Intuit can legally remove features that customers thought they'd paid for, I guess there's your answer. And note how the sneakwrap language allows Intuit to change the terms at a later date. While very common in online or subscription-based service agreements, that certainly isn't something I'd expect to see in a supposedly perpetual license for software. Here's the EULA for your software, and here's the place where you can check tomorrow to see if the EULA has changed overnight.
And, since history repeats itself, so must I. I owe it to anyone checking into a Hilton-owned hotel expecting to use the hotel-provided broadband service. One reader staying at a Hampton Inn on a skiing trip took the time to read the HHC (Hilton Hotels Corporation) high-speed Internet access agreement. In it he found a lot of language I thought was long gone, including:
"You agree that HHC shall own all Information. By using the Service, you voluntarily, expressly and knowingly acknowledge and agree with all of the foregoing and further agree to each and all of the following: (I) such Information belongs to HHC and is not personal or private proprietary information; (ii) such Information, wherever collected, may be processed, used, reproduced, modified, adapted, translated, used to create derivative works, shared, published and distributed by HHC in its sole and absolute discretion in any media and manner irrevocably in perpetuity in any location throughout the universe..."
Yes, all of Hilton's we-own-all-your-information-throughout-the-universe privacy language is back, or maybe it never really left. Except, instead of just applying to information collected on Hilton's website, it would now appear to apply to all data coming in or out of your hotel room. As the guest at the Hampton Inn wrote, "every keystroke on my computer while using their service becomes the property of HHC, every document I send, or my credit card information should I decide to buy something over the internet while using their service. Needless to say, I didn't send any information or passwords that night, and I think I'll be staying somewhere else the next time I decide to go skiing."
Given the now-it's-there, now-it-isn't history that we've seen with Hilton's non-privacy language, I think it's best I post the whole agreement" the reader sent me in my EULA Reviews section so it can be compared in detail to what came before. Naturally, the "I've consulted a lawyer" clause that was polling so well among our bad terms is still in there as well. So, along with the new entries from Microsoft and Intuit, it's definitely going to be hard to pick a clear winner for the worst existing license terms. But, hey, I can already tell you who history will say were the biggest losers: all of us.
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9:42:19 PM 
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