Our continuing debate on whether or not End User License Agreement really do constitute a real contract recently prompted an interesting discussion on the Gripe Line. In particular, I thought the comments of one reader particularly intriguing in explaining why the law doesn't provide a ready answer to the question of EULA enforceability.
The reader wrote:
"I am an attorney, and I have been handling litigation for over 30 years. I keep up with technology because it is interesting and because my clients are technology companies. I always enjoy reading the comments in which non-lawyers opine on what the law is. I thought your readers might be interested in how experienced lawyers view issues like EULAs and copyright and licensing."
"The first thing to understand is that law is not like engineering. In fact lawyers tend to joke about how all engineering trained people think they don't need lawyers, because they can understand 'the law' by reading it. What lawyers know that engineers -- and that includes software engineers/programmers -- don't know is that the law is not a specification. You can't just look the law up and then you know what is going to happen. Any analogy as to what the law is will eventually break down, but one way to look at the law is that it is a continuous argument between competing interests. A judge, as Oliver Wendell Homes said over a century ago, (if he/she is a good judge) will try to rule in such a way that the rule, which is called an 'opinion' for good reasons, will not ignore prior precedent and at the same time not produce an unacceptable result."
"Consequently, when we lawyers are looking at how a case has been subsequently cited we will see phrases like 'distinguished,' 'followed,' 'disagreed with,' 'explained,' etc. to describe how the subsequent court treated the case. If you want to know what the law is regarding sneakwrap agreements, you may be in for some frustration, because there isn't a black and white answer. If I am evaluating a specific case in which, for example, I am representing someone who wants a EULA agreement to not be enforced, I am going to look at what my client specifically wants. Does my client want their money back on a piece of software that does not work? I will probably win no matter what the EULA says as long as I come up with an argument and my client is telling the truth. Or does my client want to sell timeshares to use the software -- maybe that is a silly example, but it is a sure loser. Does the software do something bad to my client's computer, ala Sony rootkit (winner), or does my client want to install the software on 100 hundred computers although the license is only for one (loser). There will be harder cases than those I have used as examples. In those cases conservative judges, and federal judges are as a rule very conservative these days because they are overwhelmingly Republican, will tend to favor the EULA and more progressive judges -- some state judges and a few federal judges -- will tend to favor the consumer/customer. I am not making a partisan statement, that is just the way it is."
"These cases that are close calls give rise to the expression lawyers use, 'hard cases make bad law.' Overall, the particular facts of a case have much more influence on the outcome than a statute or prior case. Some law is so well settled that there is little left to argue about, but in the EULA area there is so little law that we lawyers will likely be able to feed our families for some time to come."
So software companies may not be able to rely with absolute certainty that a particular court will treat their EULAs as a real contract, but neither can the customer be sure a judge won't enforce even the unfairest of sneakwrap terms. But while I believe the reader is doubtlessly correct, this by no means ends the discussion. Join in yourself by posting your comments on my website or write me directly at Foster@gripe2ed.com.
Read and post comments about this story here.
12:19:58 AM 
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