Eula Vs User Licensing Agreement
Eula End User License Agreement 中文

Agreements EULA (effective December 1, 2018) EUSA (effective December 1, 2018) Enterprise Agreements NextWave Agreement. (a) Free & Trial License. If you have obtained a free, trial or evaluation version of the.

February 2005

By Annalee Newitz

We've all seen them – windows that pop up before you install a new piece of software, full of legalese. To complete the install, you have to scroll through 60 screens of dense text and then click an 'I Agree' button. Sometimes you don't even have to scroll through to click the button. Other times, there is no button because merely opening your new gadget means that you've 'agreed' to the chunk of legalese.

They're called End User License Agreements, or EULAs. Sometimes referred to as 'shrinkwrap' or 'click-through' agreements, they are efforts to bind consumers legally to a number of strict terms – and yet you never sign your name. Frequently, you aren't even able to see a EULA until after you've purchased the item it covers.

Although there has been some controversy over whether these agreements are enforceable, several courts have upheld their legitimacy.¹ These days, EULAs are ubiquitous in software and consumer electronics -- millions of people are clicking buttons that purport to bind them to agreements that they never read and that often run contrary to federal and state laws. These dubious 'contracts' are, in theory, one-on-one agreements between manufacturers and each of their customers. Yet because almost every computer user in the world has been subjected to the same take-it-or-leave-it terms at one time or another, EULAs are more like legal mandates than consumer choices. They are, in effect, changing laws without going through any kind of legislative process. And the results are dangerous for consumers and innovators alike.

It's time that consumers understood what happens when they click 'I Agree.' They may be inviting vendors to snoop on their computers, or allowing companies to prevent them from publicly criticizing the product they've bought. They also click away their right to customize or even repair their devices. This is a guide for the 'user' in EULA, the person who stands to lose the most by allowing companies to assert that these click-through agreements count as binding contracts.

Common EULA Terms That Harm Consumers

There are countless terms written into EULAs that could potentially harm consumers, or that may be downright unlawful. Here we offer an overview of some of the most common of these terms, and include sample legal language to help consumers become more EULA-savvy.

1. 'Do not criticize this product publicly.'

Hidden within the terms of many EULAs are often serious demands asking consumers to sign away fundamental rights. Many agreements on database and middleware programs forbid the consumer from comparing his or her product with another and publicly criticizing the product. This obviously curtails free speech², and makes it more difficult for consumers to get accurate information about what they're buying by inhibiting professional watchdog groups like Consumer Reports from conducting independent reviews.

How does this happen? People click 'I Agree' to EULAs that attempt to forbid 'benchmarking' -- the process of measuring the performance of hardware or software in a controlled and defined environment. McAfee (a.k.a. Network Associates) was sanctioned in 2003 for including in its EULA the condition, 'The customer shall not disclose the results of any benchmark test to any third party without Network Associates' prior written approval.'³ And yet anti-benchmarking and anti-public criticism terms exist in many EULAs to this day.

According to terms in several Microsoft EULAs, including those for MS XML and the SQL Server, you 'may not without Microsoft's prior written approval disclose to any third party the results of any benchmark test.'⁴ Similar terms appear in EULAs for countless other applications, including one for the VMware Desktop Software, which reads, 'You may not disclose the results of any benchmark test of the Software to any third party without VMware's prior written approval.⁵

Not only do terms like these prevent people from engaging in free speech, but they also undermine fair competition in the marketplace. Microsoft, for example, can publish benchmarks comparing its database products to open source alternatives. And yet their EULA terms suggest that the authors of open source products cannot publish the results of their own comparisons. What this means is that the only information consumers have access to is extremely one-sided and potentially biased.

2. 'Using this product means you will be monitored.'
Many products come with EULAs with terms that force users to agree to automatic updates – usually by having the computer or networked device contact a third party without notifying the consumer, thus potentially compromising privacy and security.⁶

Section 2.1 of the Windows XP Home Edition EULA⁷ includes a Digital Rights Management (DRM) Notice, which contains the following terms:

'If the DRM Software's security has been compromised, owners of Secure Content ('Secure Content Owners') may request that Microsoft revoke the DRM Software's right to copy, display and/or play Secure Content. Revocation does not alter the DRM Software's ability to play unprotected content. A list of revoked DRM Software is sent to your computer whenever you download a license for Secure Content from the Internet. You therefore agree that Microsoft may, in conjunction with such license, also download revocation lists onto your computer on behalf of Secure Content Owners.'

Note that by clicking through the EULA for Windows XP, you are also agreeing to let Microsoft download software onto your computer on behalf of third parties, identified only as the 'Secure Content Owners.'

The Windows license, however, is less invasive than the terms of Pinnacle's Studio 9 movie-making software. See the DRM-related provisions in Section 6 of the Pinnacle EULA⁸ :

'You acknowledge and agree that in order to protect the integrity of certain third party content, Pinnacle and/or its licensors may provide for Software security related updates that will be automatically downloaded and installed on your computer. Such security related updates may impair the Software (and any other software on your computer which specifically depends on the Software) including disabling your ability to copy and/or play ‘secure' content, i.e. content protected by digital rights management.'

Clicking through this EULA appears to allow Pinnacle to install software automatically from third parties onto your computer – software which the vendor admits may 'impair' the program ('the Software') you have just purchased, as well as 'any other software on your computer which specifically depends on the Software.'

Another disturbing 'automatic update' style term appears in McAfee's EULA – it's an automatic subscription renewal clause which says that the company might just charge your credit card an 'automatic' fee when your subscription runs out. Agreeing to this EULA seems to mean you may be a McAfee subscriber forever: 'Upon expiration of your subscription to the Software, the Company may automatically renew your subscription to the Software at the then prevailing price using credit card information you have previously provided.'⁹

3. 'Do not reverse-engineer this product.'

Some EULA terms harm people who want to customize their technology, as well as inventors who want to create new products that work with the technology they've bought. 'Reverse-engineering,' which is often forbidden in EULAs, is a term for taking a machine or piece of software apart in order to see how it works. This kind of tinkering is explicitly permitted by federal law – it is considered a 'fair use' of a copyrighted item. Courts have held that the fair use provisions of the US Copyright Act allow for reverse-engineering of software when the purpose is to create a non-infringing interoperable program.¹⁰

And yet, most EULAs take away the rights granted by this federal sanction. This has far-reaching implication

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