Saturday, March 17, 2007

EULAs are Broken

We need better end user license agreements.

We, the users of software, understand the consequences of not reading EULAs. We all know we could be agreeing to some damn thing we find unpalatable, at best. Yet, who has budgeted time in her busy day to read 2953 words of dense legalese? (That's not even an exaggeration. That's the actual word count on the last EULA I saw.)

This is legalese! Even when it is trying to convey a relatively simple idea, it's obnoxiously palaverous. Consider:
"If you do any of the foregoing on behalf of a company or organization, you represent and warrant that you have the requisite authority to bind such company or organization to the terms and conditions of this Agreement."

That sounds pretty scary, but it's just another way of saying, "If you accept this EULA, you are claiming to have the authority to accept EULAs on behalf of your company." By the time you're done reading it, though, you're feeling like you need to call the company lawyer. Lawyers are good at keeping each other employed.

I'm going to go out on a limb here, and say: I think the average English speaker lacks the literacy level to slog through one of these things and understand every minute bit of it. How can we reasonably expect her to legally consent to it? Moreover, what is the responsible thing for her to do, under these circumstances? Realistically speaking, she can't call a lawyer up to come over to her desk every time she's installing a piece of software.

Worse, if we somehow miraculously manage to wade through and fully absorb a EULA once, for a given piece of software, some software forces us to agree to the EULA again, with every patch. We are neither told whether the EULA has changed since the last time we read it, nor given any way to do a diff, and see exactly what changes were made. Does Blizzard, for example, actually expect anyone to read the entire EULA from top to bottom (not to mention the Terms of Service), every single time we install a patch? I'd bet that not a single one of their 8 million subscribers has read the entirety of the EULA every time she agreed to it. This is not because the entire human race is irresponsible. It's because we have unreasonable expectations of them.

I understand the value of legalese. That which is vague is open to interpretation. So, it is best to spell everything out in excruciating detail, so there is no room for doubt. Legalese is, in this way, like a programming language that just happens to use a vocabulary and grammar similar to natural language. Lawyers even reuse sections of legalese, like programmers reuse code, just passing in different values to the variables -- company name, date, etc. Over time, they tune, and tweak, and make contracts increasingly difficult to challenge. However, as this boilerplate text becomes more impervious to challenges, it also becomes increasingly impenetrable to the average reader. Honestly, I don't expect the general public to be able to wade through legalese any more than I expect them to be able to wade through my source code.

We need to be more reasonable about what users can realistically consent to, while they are installing software. At the bare minimum, I think software publishers should provide a clear, concise "translation" of the EULA into plain language, for the convenience of those of us without law degrees.

Some companies are starting to see the light. Microsoft has recently started adopting plain English EULAs. They're still too damn long, but it's better than legalese, at least. Have a gander at the new Vista license, for an example. (I hate PDFs, incidentally.)

Here's a passage from the Windows 98 EULA:

"NO OTHER WARRANTIES. To the maximum extent permitted by applicable law, Manufacturer and its suppliers disclaim all other representations, warranties, conditions or other terms, either express or implied, including, but not limited to implied warranties amd/or conditions of merchantability and fitness for a particular purpose, with regard to the SOFTWARE, the accompanying written materials, and any accompanying hardware. This limited warranty gives you specific legal rights. You may have others which vary from state/jurisdiction to state/jurisdiction."

Woah nelly. Check out that run-on sentence near the top (and middle, and halfway through the bottom). I'd hate to have to diagram it. It's the kind of sentence that just makes you want to put hot sauce in the underwear of the guy who wrote it.

Compare that to the equivalent passage from the Vista EULA:

"NO OTHER WARRANTIES. The limited warranty is the only direct warranty from Microsoft. Microsoft gives no other express warranties, guarantees or conditions. Where allowed by your local laws, Microsoft excludes implied warranties of merchantability, fitness for a particular purpose and non-infringement. If your local laws give you any implied warranties, guarantees or conditions, despite this exclusion, your remedies are described in the Remedy for Breach of Warranty clause above, to the extent permitted by your local laws."

Well, it's not great, but it's a breath of fresh air, compared to the other one.

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