Fog Creek Software
Discussion Board

Is a EULA important?

How important do you think including a EULA is?
Has a EULA ever actually been enforced?

Can't remember if I saw a EULA in the CD install.

(From my perspective as a *customer*, I don't have 20 minutes to read the EULA of every program I ever try out or buy. So, I (and probably most people) don't read it. That would *seem* to mitigate a EULA's impact as it would violate the Common Man standard (i.e., most people dont' read it, so it's unreasonable to expect your customer to read it).

Mr. Analogy
Thursday, April 22, 2004

BTW, I'm talking about software that isn't mission critical. I.e., it's not controlling chemotherapy or some lifesaving operation, nor is it entrusted with calculating someone's taxes, etc.

We're talking about educational software.

Mr. Analogy
Thursday, April 22, 2004

You should probably ask a lawyer or read one of the NOLO books on the subject, but, basically, I think that the idea is that if you buy some software from me, absent any other agreement, the courts will assume it was a normal "purchase" which gives you certain legal rights associated with a normal sale (you now own the software, not just a copy of it, and you can sell it to someone else, and I can't sell it any more, etc., just as if you had bought an apple from me)

Thus, software is ALWAYS licensed, NEVER sold, meaning, I don't sell you anything but a license (i.e. specific permission) to USE the software. The software doesn't become yours.

So we need some kind of legal agreement between us so I can prove to courts that you bought a license to the software, not the software itself.

Anyway, it starts from there. Everything beyond this is deep in the realm of lawyers and case law. I'm pretty sure you're going to want to have an EULA, and once you have one, if you don't list everything, the very absence of things is going to get you in trouble. So get the NOLO book, start with their template, add and remove clauses until it says what you think it should say, and pay a lawyer with experience in this area to review it.

Joel Spolsky
Fog Creek Software
Friday, April 23, 2004

Here's a good Nolo book to start with:

Anonymous critic
Friday, April 23, 2004

Joel, why do you assume right away that selling software is different than selling a book?

Copyright law covers most of the important issues with selling software (the "can't make more than one copy for backup purposes and no other copies except as required to use it" part), yet permits resale (Doctrine of First Sale), etc.

If you're going to write a EULA, at least try to make it simple so that people would have a chance to understand it if they read it.

Ryan Anderson
Friday, April 23, 2004

You may also want to have a look at this book:

Its essential message is that an EULA which attempts to restrict a purchaser's rights _after_ the time and point of purchase (beyond those restrictions found in copyright law anyway) is, if tested, generally found invalid in a court of law.

In particular, if software says on the box that it will do X, but when you install, the EULA says the software isn't guaranteed to do anything, or even to work at all, a court would uphold the promise on the box, not the disclaimer in the EULA.

Of course, you could always include on the box a disclaimer that the software isn't guaranteed to work at all.  But it's pretty obvious that with such a disclaimer in plain sight, no one would buy your software.  Many EULAs are just underhanded attempts to sneak in such a disclaimer when the customer isn't aware of it.

For the full story, read the book.

Friday, April 23, 2004

"For the full story, read the book. "

good points. Book is by Cem Kaner.  He's pretty accomplished, being (as I recall from meeting him) a lawyer AND software developer.

So, pretty good authority.

Your thoughts above are right on with what I was thinking.

My customers are not techies. When they see a 2 page EULA that talks about "this software won't necessarily work" they freak out.

And I can't imagine ANY contract being enforceable if you're only shown it AFTER the purchase.

Mr. Analogy
Friday, April 23, 2004

Additionally (in respect to my first post), there's a difference between a license and a contract.

In general, a license grants you rights you wouldn't normally have.  (Say, the ability to distribute the source code of a copyrighted work, such as in the case of open source licenses.)

So, a EULA isn't really a license as it restricts your ability to do things you would normally be able to do (resell something you bought)...

FWIW, IANAL, but my understanding of what a license is comes from a definition on Groklaw.

If you're worried about your customers and their opinions, that's probably way more important than whatever legal protections you have in the EULA anyway.

I would recommend this: Make your intentions clear, and explain what your policy will be when you discover that you failed to fulfill your intentions.  Make clear what redistribution via copying rights you allow (can you install the software on multiple machines?), and that if the ownership of the application changes, what process must be undertaken to continue the support arrangement.

If you can do that all in plain English, have a lawyer review it, but make clear that you want the resulting document to be short, understandable and reassurring.

Ryan Anderson
Friday, April 23, 2004

The worst example of a EULA I've seen is for a computer game, the Ubisoft-distributed version of Morrowind - it specifically prohibits using the program.

(To be specific, the game in question comes with a full-fledged editor, as is the trend nowadays. The EULA prohibited creating any derivative work, distributing unauthorized levels or reverse-engineering any part of the game, which is the sole point of the included editor (they even let you tool around with the game files so you can make yours work like theirs.)

Moral of the story is, make sure your EULA's accurate, especially if you plan to cut costs and re-use your EULA for future programs. This was the mistake Ubisoft ended up making, although it certainly provided a whole heap of entertainment on my end.

The computer game industry is valuable from a programming point of view, although usually as a 'what not to do' sort of thing.

Tuesday, May 4, 2004

*  Recent Topics

*  Fog Creek Home