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Writings on technology and society from Wellington, New Zealand

Thursday, April 3, 2008

Eschew obfuscation!

Today on Radio New Zealand National I talked about the impenetrable legal terms and licences that we are confronted with every day when we use software or even just read email.

Read on for my speaking notes.

Feel free to post your favourite examples of silly or unreadable email disclaimers in the comments!

Today I thought we’d talk about all the legalese that we get bombarded with when we use technology.

Q: You’re actually not a lawyer, are you?

A: Absolutely not, I’m a reasonable man! Just so we are clear about this, I’m not able to give anyone legal advice, and if I was able, I’d probably charge for it. But my point here is, that lawyers or not, we receive chunks of lawyerly-looking language whenever we, say, install a piece of software, and often at the foot of people’s emails. What does it all mean?

Q: Are we supposed to get legal advice for everything?

A: You’d have to have a lawyer looking over your shoulder continuously and advising you on everything you see! That could get a little expensive, never mind the other problems with that idea. So from sheer practicality we have to figure out a way of dealing with this stuff.

Q: Surely everyone just ignores it.

A: It’s pretty clear that mostly happens. I’m not sure that’s a good thing. Let’s just unpack a bit more of what we re talking about here. Imagine you are installing a piece of software. It might be something you have bought in a box from a shop, or it might be something you have downloaded from the Internet. When you start the install process, up pops a box full of text, called the End-User Licence Agreement, or EULA.

Q: Why does there need to be a licence agreement?

A: Because you don’t own the software, someone else does, usually the person or company that wrote it. What is happening, legally, is you are getting the right to use this piece of software that doesn’t actually belong to you. And it has conditions attached to it. It’s a bit like renting a car – you sign an agreement that says you have to stay on public roads, sometimes they say you have to stay on tarseal, or put limits on where you can go in the car. By signing that agreement you acknowledge that you are going to keep it. With software, they show you the agreement and you have to accept it by clicking “I accept” or some such.

Q: Does anyone read these things?

A: Of course they don’t. Typically they are thirty pages of dense text which is full of terms that only even make sense if you have a degree in law. Generally they refer to the law of some other place – often the state of California, although Utah and Washington are popular, too. So, even if you are a lawyer, you probably need legal advice from a legal specialist in that jurisdiction to be clear about it means. Most lawyers I have asked admit to not reading this stuff either.

And, another reason we can be certain that these licences are mostly not read: recently two software companies have been caught out by the consequences of their own licences.

Q: How so?

A: Apple has a web browser called Safari. It’s a good piece of software and it’s a reasonable competitor to Firefox – by the way, I know I keep saying this, but if you haven’t got Firefox go and get it now, getfirefox.com – although Apple has got right up people’s noses by including Safari in an update of its popular iTunes music library software. But that’s another story. Anyway, nearly a year ago Apple released Safari for Windows computers as well as its own Macintosh range. And last week, someone pointed out that the EULA – the licence agreement that you have to agree to before you can install it – contains language saying that you will only run Safari on an Apple-branded computer. This is for software they are pushing to just about every home Windows user in the world.

Q: What happened next?

A: Apple, to their credit, immediately owned up to the mistake and said that wasn’t what they intended and they changed the licence right away. But, to me, this shows a problem with the whole system. People are assenting to legal matter that they don’t understand – that they can’t understand – and the licensor isn’t even checking the stuff. I have no idea what this means for people who are using Safari on Windows in violation of the licence they have agreed to, even though it was Apple’s clear intention that they use it on Windows. To me, this makes a mockery of the whole thing of click-through licences.

Let’s just think about what goes on in your head when you are trying to install software – here you are, just trying to get it to work, and up pops a box full of incomprehensible text, and you know that by pressing I accept it will go away and you can get on with your life. Why wouldn’t you just press it?

Q: You said two software companies – what was your other example?

A: This one’s Adobe – maker of Photoshop among lots of other popular software. Now, Photoshop is a high-end image manipulation package with a high-end price to match. Incidentally there is a free open source alternative called the Graphics Image Manipulation Program or GIMP, but we’ll leave that and keep going on the legal issues today. To better cover its market, Adobe also sells, or sometimes gives away with cameras, cut-down versions of Photoshop with far fewer features – but enough to get rid of red-eye, or to rotate the picture a little so the sea is level, that kind of thing. And now Adobe has decided to go a step further with the cut down versions – they have jumped on the software-as-a-service bandwagon, and they have made it run through a web page. It’s called Photoshop Express. So, you upload you photo to their page, tweak it online in your web browser, and then you can save it back onto your computer. You never need to install their software on your computer at all.

Q: So you don’t need a licence?

A: Well, they make you assent to some terms and conditions to use the web site. Incidentally, have you noticed how many legal terms are like that – two things that mean the same with an “and” in the middle? Terms and conditions, part and parcel, goods and chattels – I’m sure there are a lot more.

Q: Why is that?

A: I have this theory that lawyers hate throwing stuff away – they see it as a risk. The words “term” and “condition” seem to mean exactly the same thing, but let’s say someone manages to come up with something that is a term but not a condition, you’d be exposed! So the lawyer just chucks them both in for safety. Of course the result is text that just collects all these additions which make it even less readable.

Anyway, in the Adobe example, someone read right to the end of the term and conditions and discovered that Adobe was reserving the right to keep your photos and do anything it wanted with them – selling them, using them as box art, or publicity material, all without your permission, without royalties, and even without a credit to you.

Q: What happened there?

A: Well when it was pointed out Adobe said they really didn’t mean that at all and, they said, they would never use their customers photographs without permission. Their legal team is now revising the terms of use. So, it was a big “oops” – but the point is, that people signed up to this, undoubtedly without reading it. Where does that leave them? Adobe could quite legally sell their photographs to someone else, or print them on toilet paper if they wanted to.

Q: So are you giving away your rights by agreeing to these licences?

A: According to consumer.org.nz, that’s the organisation that used to be called the Consumers’ Institute, nothing in a EULA can override your statutory rights – but proving that is likely to need specific legal advice. So it’s not a very satisfactory conclusion, and the whole situation seems strongly weighted toward the software companies. One situation in which you are covered, by the way, is when the licence is heading General Public Licence or GPL – it’s completely safe to use GPL software. We’ve talked about that before.

Q: So what about those legal disclaimers you get in email?

A: Some of those are pretty silly. I recall the UK Cabinet Office advising UK government departments not to use them because they have no legal force, but I can’t find that on the web any more. But most of them are just silly in content. They often begin: this message is intended for the intended recipients… surely that’s self-evident? Or this message may not be forwarded or passed on? What if that’s the appropriate thing to do with it? Or: this message does not represent the views of xyz Ltd? In that case, how do you communicate the official views of xyz Ltd? Obviously not through email! Sometimes you see media releases with disclaimers on the bottom – that’s just bizarre, the purpose of a media release is to communicate your opinion in the hope the media will publish it.

Q: But these disclaimers are added automatically by company email systems.

A: Yes – and what does that tell you about the company? We are a bunch of idiots who have no idea how the Internet works and we don’t trust our staff!

Links

Adobe’s problem with its terms of use, and Apple’s problem with the Safari licence

Consumer on End User Licence Agreements

A site full of stupid email disclaimers.

posted by colin at 10:50 am  

7 Comments

  1. Techdirt has a mention of Apple’s EULA stuffup here

    http://techdirt.com/articles/20080327/142910668.shtml

    There’s also a discussion in the comments about the difference between a “licence” and a “contract”, and why software released under the GPL doesn’t require you to click an “I agree to these conditions” button before being able to make use of it.

    Comment by Lawrence D'Oliveiro — 3 April 2008 @ 11:07 am

  2. Hey, your server’s daylight-saving setting seems to be off. It records my previous comment as having being posted at “11:07 am”, whereas the time was in fact 12:08.

    Comment by Lawrence D'Oliveiro — 3 April 2008 @ 11:08 am

  3. Recently, I had the “pleasure” of reading Trade Me’s terms and conditions. It appears to prohibit Trade Me’s users from having birthday parties or using email to keep in contact with their friends. I pointed this out to Trade Me, saying (in full):
    “I have just read your Terms and Conditions. Clause 3.4 (b) appears to prohibit TradeMe members from disclosing their email address and their date of birth to their friends. Is this correct?”
    The relevant part of their response was:
    “Yes that is correct.”

    In the end, I sold the car on the Trade & Exchange website instead—in under 24 hours!

    Comment by Tim McKenzie — 3 April 2008 @ 11:43 am

  4. Have you heard about Microsoft being hoist by the terms of its own EULA?

    http://www.channelregister.co.uk/2008/03/31/microsoft_india_tax_ruling/

    Apparently it’s been pulling the usual sort of multinational fiddle to avoid paying any taxes in India. Except the Tax Commissioner has ruled that, because by Microsoft’s own terms the software is “licensed, not sold”, that means the income must be treated as royalty payments.

    Comment by Lawrence D'Oliveiro — 4 April 2008 @ 10:04 am

  5. Hi Colin, you said “it’s completely safe to use GPL software” but that’s not true at all. GPL is a license just the same as those EULAS you mentioned.

    I find it one of the longest and most confusing licenses, and it’s made even longer by the philosophical ramblings and FAQs.

    You get no warranties under GPL. You have no protection if the software was copied from someone else. It has loads of disclaimers and restrictions just like those EULAS you mentioned.

    And if you make modifications, you can devalue your patents and lose the ability to sell your software. That makes it very a dangerous trap for commercial software developers who don’t understand it.

    Comment by Geepy Al — 8 April 2008 @ 10:28 pm

  6. Geepy – sure, the GPL is a licence. But it’s the same for everyone (OK, there are three versions) and so it’s well understood. And it’s a lot shorter than most commercial EULAs.

    You get no warranties under the GPL. However, as a consumer, have you ever succeeded in collecting on a warranty on software? The best you are likely to get is return of the purchase price, which for most GPL software is zero.

    And, yes, if you want to modify software and distribute your modifications, you need to understand the implications of the GPL. Lots of developers are happy to do so, but some folks aren’t and use only BSD-style licensed code or negotiate a commercial licence with someone. None of this matters to you if you just want to use the software and have no intention of changing it and passing on your changes.

    Comment by colin — 9 April 2008 @ 10:54 am

  7. [...] ranted before about the futility and stupidity of email disclaimers that so many people and companies use. [...]

    Pingback by it.gen.nz » Wacky email disclaimer — 21 August 2008 @ 3:14 pm

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