EULA hoops?

Consumer group the National Consumer Council plans to lobby the OFT and European Commission to insist that terms and conditions in End User Licence Agreements (EULA) are available to consumers at the point of sale, in plain English, in local law and on fair terms. In a recent report the NCC surveyed 25 well known products noting that many agreements sprung EULAs on consumers after purchase, with lengthy impenetrable terms and governed by the law of the place of origin not the user.

Over half of the EULAs contained no information on the external packaging that a licence agreement was required and only 4 gave an option to preview the agreement online before purchase. It seems only fair that consumers should have a right to read the terms of use prior to purchase (and in any event providers need to be careful EULAs are properly incorporated into their contracts with consumers if they want to be able to rely on them at a later date).

The agreements were littered with terms such as 'does not affect your statutory rights' which would be enough to bring the Plain English Campaign out in protest.  It certainly seems that when dealing with consumers short, clear licences are the order of the day!

The NCC suggest that licence terms should vary for the country in which the product is purchased. Perhaps it would be relatively easy for large US multinationals to adapt their agreements for EU countries, but one could argue that it would be unfair to insist that software providers to make all of its product licences nation specific especially in countries with poorly developed copyright law.  Equally, or perhaps of more pressing concern, the costs of localising the EULAs and obtaining legal advice in each country are likely to be prohibitive for many small software providers.

Comments

[Francis Irving]

This feels like totally the wrong approach to me.

When you go into a shop and buy a banana, you don't have to sign a contract. There is long standing law defining what it means to buy something.

Likewise, we should do the same for software. The field might not be mature enough yet to know what 2 or 3 sets of terms and conditions are reasonable, but it will be soon.

[Alasdair]

Good comment. It has seemed to me absurd for some time that the vast majority of people do not read the terms applicable to them. While the law currently provides that it is too bad if you did not read it (well within reason), it is about time that reality dawned on all concerned -- courts, legislators, and dare I say it parochial lawyers, that the general terms should be a standard set across the whole EU, and only if changes are clearly and unabiguously drawn to the attention of the intending contracting party and that party accepts by more than a a blind click can other terms apply. I think I would add an additional qualification otherwise we will still get nowhere, that either the differences are limited or possibly that different terms can apply, but must be registered and there is a steep fee for registration, sufficient to discourage all but those who really need different terms because their business is different.

[Simon Wilshire]

EULA’s are not user friendly in any way shape or form and are totally unintelligible to most people.
Users of software (and especially games) would benefit from a simple ‘do/don’t’ list printed on the box cover and reference them to greater document on the installation disk. But this document MUST be in plain English as people simply do not read them because they want to get on and use the product.
Further to this, there is general feeling of 'I paid for it - it's now mine and I'll do what I want with it'.
I have to say I’m guilty of this with one exception; the US Military released a game for recruitment purposes totally free of charge – once the EULA appeared I read it – and declined it.

So in the case of software and with respect that not too many people can hack base-codes – the EULA is most relevant in regards to duplicating the product.
However, in the case of the US Army’s game it was a case of ‘you take the game – we’ll look at your hard drive’ and I was glad I read it.