Commentary
10/9/2001
01:07 PM
Fred Langa
Fred Langa
Commentary

Langa Letter: Fine-Print Follies

The current flap over FrontPage is just part of the story, Fred Langa says. The fine print is far more damaging in other companies' end-user license and terms-of-service agreements.



We first covered the growing trend of vendors exploiting the fine print in end-user license agreements at the beginning of the year. At the time, perhaps the most egregious offender was Juno, the giant "free" Internet service provider. Recently, Microsoft's gotten some bad press about its FrontPage end-user license. But I think the situation is broader than just these two examples.

As I described last winter (Peer-To-Peer's Dark Side), in its struggle to survive, Juno inserted a stealth amendment into its online user agreement. Juno's amendment said, in essence:

  • It could unilaterally alter the agreement at any time.
  • Use of the service constituted your acceptance of the agreement, including any and all new terms, even if you never actually saw the terms or read the agreement.
  • The first major change under the new agreement would be that Juno could install code on your PC as part of routine software updates. This new software would let Juno take over your PC's spare CPU cycles; Juno would make your PC a slave in its distributed network and sell your CPU cycles to other companies. You'd have no control over what Juno's software was or what it did; you'd have no claim to any benefits or profits Juno realized from using your PC; and, if Juno's use of your PC, CPU, or bandwidth caused you extra costs or problems--tough.

Many customers who learned of the new terms were outraged and left the system. But many others accepted the new terms simply because they never read the license agreement.

The FrontPage Flap
Recently, we've seen growing coverage of what we might term "EULA abuse," as other publications have become aware of this trend. For example, there has been a rash of recent reports about Microsoft's FrontPage 2002. FrontPage has a fairly standard master end-user license agreement burned onto the CD and installed as part of the software, but it also has an unusual printed addendum stuffed into the box of retail copies of the software. That addendum says, in part, that you can't use FrontPage 2002 to create or maintain sites that "disparage" Microsoft.

As reported by a number of publications (see The Gripe Line: Control With Fine Print and Slashdot), that sounds like something draconian--an overweening attempt by Microsoft to limit criticism of itself and its products. But, although it's is flawed, I actually think there's less to this particular agreement than meets the eye.

Let's start with the most general problem. I'm not sure the addendum is enforceable. Although it's 100% certain that every software user gets a copy of the master end-user license agreement burned onto the CD along with the application, there's no way to prove that each user receives a blow-in addendum. No manufacturing/packaging process is perfect. If a user were simply to say, "The flyer wasn't in my FrontPage 2002 box," Microsoft would be hard pressed to prove otherwise.

Then there's the word "disparagement." Microsoft's agreement doesn't define the word, but the Cambridge English Dictionary does: "to criticize (someone or something) in a way that shows you do not respect or value them." A reasonable person could easily argue that a FrontPage-generated Web site containing even a harshly negative review, critique, or commentary about Microsoft or its products and practices does not necessarily involve a lack of respect. So even harsh criticism does not meet the definition of disparagement.

The language of the addendum is awkward enough to make its intent imperfectly clear. However, it seems to me that that Microsoft was not aiming to restrict the overall use of FrontPage. Rather, I think it intended to address a much narrower issue--the use of selected FrontPage components, many of which display Microsoft logos and Microsoft-served content (such as the MSNBC Headline applet). I actually can understand why Microsoft might not want its logos or content to be part of a site such as, say, "F**kMicrosoft.com" (a real site, by the way). Still, a poorly worded end-user license addendum makes Microsoft's aim sound much broader and more ominous. (Read the FrontPage 2002 end-user license addendum and judge for yourself.)

The FrontPage 2002 end-user license amendment is sloppily written and clumsily delivered. It's a good example of why it's important to read the agreements that accompany your software. However, in its current form, this one is hardly the threat to free speech that some make it out to be. Of course, if Microsoft changes the wording and delivery mechanism, then the agreement's import also may change. Stay tuned.



Many Other Examples
In a way, it's too bad that FrontPage 2002 is getting so much attention, because far worse examples of bad end-user licenses are out there. For example, reader Peter Runyan found, on a site that offers "free" computers:
"...[I]t looks really good at first, but when I read the Terms, I get the strange feeling that they are going to get more money from me than I have, or that I won't get the laptop at all. The Web site is http://free.aizohndirect.com. The Terms look like they could take the shirt off my back (if they wanted it). Is this standard operating procedure in contracts? (See sections 1.3 and 2.4.)"

The Aizohn terms-of-service document seems at first blush to be a standard "free PC" deal. In return for the use of the PC, you agree to provide detailed demographic information and accept targeted advertising from the company. But the text also states that the company can change the agreement unilaterally, and its only obligation is to try to send you an E-mail notifying you of the change. Whether or not you ever see the E-mail message, you're liable for whatever the new agreement stipulates, including all new "fees, charges, and amounts due."

Aizohn may be a fine company, with completely honorable intentions, but I agree with Peter that this kind of agreement puts too much power in the hands of the company. Why should we accept any contract that lets a vendor make what amounts to unilateral changes without our explicit foreknowledge and acceptance?

Alas, more and more end-user licenses are written in such a way that the vendor holds essentially all the cards. Juno, Microsoft, and Aizohn are just three examples among many companies that use the fine print of their terms-of-service documents or end-user licenses to bury clauses and stipulations that, I believe, most users might never agree to if the terms were spelled out in a more obvious fashion. (And I do mean "bury": The Aizohn agreement, for example, is more than 6,300 words long, Juno's is 4,300 words long, and the Microsoft FrontPage master end-user license is 3,400 words long.)

Reading all relevant end-user licenses and terms-of-service documents is a major pain, but it's becoming increasingly essential. Unless you keep your guard way up, you could be opening yourself up for a nasty surprise--though a perfectly legal one, courtesy of the fine print.

What your experience with end-user license and terms-of-services agreements? Is it your or your company's policy to read all such documents, or do you click "Accept" and hope for the best? Have you ever been ensnared by stealth terms added to such an agreement? Have you ever declined to use a product because of a too-restrictive legal document? And, with regard to the FrontPage amendment, do you agree with Fred that it's not a big deal, or is Fred letting Microsoft off the hook too easily? Join in the discussion!

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