Jesrad's Journal: EULAs and the risk of corporate law-making.

The more I think of EULAs (End User License Agreements), the more I think they are a tool designed to take away law-making from law-makers, into the hands of copyright holders everywhere.

They make it possible for copyright holders to force insane clauses on unsuspecting customers, after all.

Are EULAs enforceable ? In countries such as Holland and Norway, they are not. They have no legal value whatsoever. In the USA, the DMCA makes it possible, provided you incorporate some "copyright protection" (ROT13 could qualify), you can enforce whatever EULA you bundle with your copyrighted work. In many other countries, the issue is not clear, and EULAs stand in a state of legal limbo. Some companies take advantage of this fuzzy situation, like Oracle, who uses EULAs to frighten their customers into not reverse-engineering their software _even though the Law explicitly grants them this right_. Would a judge be convinced ? I don't think so.

Some corporations have been abusing these EULAs to extort money from other organizations (i.e. Microsoft with schools, enforcing its nefarious "audit" right they granted to themselves in the EULA). This means it is URGENT to have law-makers everywhere clear this issue once and for all.

The two solutions (Holland/Norway solution of stating EULAs are void of any legality, and the US solution of enforcing terms of the EULA through "copyright protection devices") have their own advantages and inconvenients.

The US solution gives copyright holders the possibility to make their own laws for enforcing their EULAs' terms. The Holland/Norway one gives customers back their fair use rights and protects them from abuse and some forms of extortion.

The US solution is, IMHO, a very bad one. But the Holland/Norway solution has one major issue: the voiding of EULAs means that software editors are liable for their products. This threatens the very existence of the software industry, by making them pay for bugs and security breaches. It could sink Microsoft, it could sink Red Hat, it could sink Apple, it could send Linus Torvalds or RMS in jail or financial oblivion.

Of course I have a solution to this problem... Pass a law that makes EULAs explicitly void of any legal enforceability (like Norway Law does), and that mandates a minimal guarantee on software that consists of a full refund and/or access to the source code.

What ? Me biased in favor of Open Source ?
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Disclaimer: IANAL, but I studied national and international Intellectual Property Right with lawyers in College. If you have legal precedents concerning these issues to give me, you are Very Welcome to post them here.