For those of you who feel the GripeLog is focusing too much on EULAs at the expensive of other gripe topics, let me just say first that I share your concern. But let me also warn you that it's going to get worse before it gets better, because things are starting to heat up on the EULA front.
A few weeks ago we saw how three major software publishers and three major software retailers had quietly agreed to give customers more open access to EULA terms before they buy a product. Just yesterday came another development to which I'd like to draw your attention. The Electronic Frontier Foundation (EFF) published its first white paper
on the EULA issue, "Dangerous Terms - A User's Guide to EULAs." It's a document that, along with providing a valuable resource for consumers who run afoul of sneakwrap terms, also serves as something of a call-to-arms.
"EULAs present one of the most pressing consumer rights issues in high tech today -- they threaten user privacy, as well as everyone's basic ability to customize and fix their own machines," says Annalee Newitz, EFF policy analyst and author of the white paper. "When we click "I Agree" on these things, the message we send vendors is that they can get away with anything. It's surprising how common it is for EULAs to demand countless ridiculous things. If you can't read the EULA before making a purchase, ask yourself: how can this be a real contract if I can't read it before agreeing to it?"
While Newitz wants consumers to be more aware of egregious terms, she also hopes the white paper will help them realize what they can do about them. "There are many ways consumers can fight unfair terms in EULAs -- through legislation, class action lawsuits, and even just grassroots activism," she said. "EFF is working on legal strategies to fight unfair EULA terms, and we invite consumers who have received legal threats because of a EULA, or have been harmed by one, to write us as at EULAharm@eff.org."
As you might recall, EFF already has one very crucial EULA-related fight on its hands in its appeal of the horrendous court decision in the Blizzard vs. BnetD case. That's the one in which the court ruled the Blizzard EULA's prohibition on reverse engineering could deprive the BnetD group of open source programmers of rights that copyright law, including the DMCA, specifically gives them. So the only things that are at stake in the case are open source programming, the concept of fair use, competition and innovation. Hey, no pressure, guys.
Since this is a battle where EFF can use all the help it can get, it's good to see some of the organizations that have weighed in on their side. In fact, if you're up for some heavy-duty reading on the legal aspects of EULAs, the DMCA, reverse engineering, and fair use, take a look at EFF's appeal and the four amicus briefs filed in support by Consumers Union and Public Knowledge, the IEEE, Computer & Communications Industry Association and Open Source & Industry Alliance, and a prestigious group of intellectual property attorneys. It's going to be interesting to see Blizzard's response, which is due shortly, and the amicus briefs filed on its behalf. If nothing else, I think this case is going to make the battle lines very clear.
Of course, the wheels of justice grind slowly, and a final resolution of the Blizzard case could well be years away. In the meantime, there are some other EULA-related initiatives on the horizon we're going to need to talk about, including one that I've been personally involved with for well over a year. So bear with me a little while longer, please.
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