History Writ Small

History Writ Small.

I'd hoped by this point I might be able to announce the winner of my most recent poll
on the worst EULA terms, but that won't be possible. Searching through
the small print, readers have found three very worthy write-in
candidates that also merit our consideration. And, based on their
history, I should have known these vendors would be contenders.

After all, Microsoft and EULAs have always gone hand-in-hand. Developers in the Visual FoxPro community have been puzzling
over some changes Microsoft made in the EULA for the new 9.0 release.
In particular, they've been scratching their heads over this decidedly
cryptic passage:

“The software is engineered to allow you to use it in
certain ways. You must comply with these technical limitations. For
more information about them, see the software documentation. You may
not … work around technical limitations in the software…”

No work-arounds allowed with Microsoft software? Just imagine how
far Microsoft would have gotten if that had always been the rule. Not
only is it rather extraordinary for the EULA to say you only use the
software in those “certain ways” the vendor intended, you have to go
read the manual if you want to find out what the limitations are. What
were Microsoft's legal eagles trying to accomplish here?

Well, history does provide a few clues. The last time
the Visual FoxPro EULA changed, it was to try to discourage use of VFP
runtimes with Windows emulation software running on Linux. I would
guess similar motives apply here, as that would also help account for
the vagueness of the restriction. As a convicted monopolist, Microsoft
has to be careful about using terms that are too clearly
anti-competitive in its license agreements, as that might be construed
as misuse of copyright.

An even more faithful recording of history seems to be taking place in Intuit's fine print. In response to my recent story about the Quicken sunset policies, several readers pointed out the relevant language in the Quicken 2005 EULA:

“Intuit shall have the right to change or add to the terms
of this Agreement at any time, and to change, delete, discontinue or
impose conditions on any feature or aspect of the Intuit Software
(including but not limited to internet-based services, pricing,
technical support options, and other product-related policies) without
notice. Online services, such as downloading financial data from your
participating bank, credit union, credit card, brokerage, mutual fund
accounts, online bill pay, downloading stock/fund quotes and news may
expire in accordance with Intuit's then effective product
retirement/sunset policy available at www.quicken.com/sunset. For the
latest version of this Agreement go to www.quicken.com or such other
site designated by Intuit.”

For those of you who have wondered how Intuit can legally remove
features that customers thought they'd paid for, I guess there's your
answer. And note how the sneakwrap language allows Intuit to change the
terms at a later date. While very common in online or
subscription-based service agreements, that certainly isn't something
I'd expect to see in a supposedly perpetual license for software.
Here's the EULA for your software, and here's the place where you can
check tomorrow to see if the EULA has changed overnight.

And, since history repeats itself, so must I. I owe it to anyone
checking into a Hilton-owned hotel expecting to use the hotel-provided
broadband service. One reader staying at a Hampton Inn on a skiing trip
took the time to read the HHC (Hilton Hotels Corporation) high-speed
Internet access agreement. In it he found a lot of language I thought
was long gone, including:

“You agree that HHC shall own all Information. By using the
Service, you voluntarily, expressly and knowingly acknowledge and agree
with all of the foregoing and further agree to each and all of the
following: (I) such Information belongs to HHC and is not personal or
private proprietary information; (ii) such Information, wherever
collected, may be processed, used, reproduced, modified, adapted,
translated, used to create derivative works, shared, published and
distributed by HHC in its sole and absolute discretion in any media and
manner irrevocably in perpetuity in any location throughout the

Yes, all of Hilton's
we-own-all-your-information-throughout-the-universe privacy language is
back, or maybe it never really left. Except, instead of just applying
to information collected on Hilton's website, it would now appear to
apply to all data coming in or out of your hotel room. As the guest at
the Hampton Inn wrote, “every keystroke on my computer while using
their service becomes the property of HHC, every document I send, or my
credit card information should I decide to buy something over the
internet while using their service. Needless to say, I didn't send any
information or passwords that night, and I think I'll be staying
somewhere else the next time I decide to go skiing.”

Given the now-it's-there, now-it-isn't history that we've seen with Hilton's non-privacy language, I think it's best I post the whole agreement”
the reader sent me in my EULA Reviews section so it can be compared in
detail to what came before. Naturally, the “I've consulted a lawyer”
clause that was polling so well among our bad terms is still in there
as well. So, along with the new entries from Microsoft and Intuit, it's
definitely going to be hard to pick a clear winner for the worst
existing license terms. But, hey, I can already tell you who history
will say were the biggest losers: all of us.

Read and post comments about this story here.  [Ed Foster's Radio Weblog]

Leave a comment