[Nettime-nl] Software vendor licence

[paulv <paulv@bikkel.org>]

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http://www.cexx.org/svla.htm

There has been a great deal of controversy surrounding so-called "clickwrap" software licenses, especially since the
announcement of the Uniform Computer Information Transactions Act (UCITA). In particular, the UCITA asserts the validity and
legal enforceability of clickwrap software licenses, a type of license many feel is fundamentally flawed. Since the point of
a clickwrap license is that the license is embedded inside the software's packaging or in the installation program itself, a
software purchaser must buy the software before being able to view the license agreement, which governs the user's legal
ability to use the software. If the user does not accept the sometimes overarching terms of the agreement, he or she is
instructed to return the software for a refund. Since the software has already been opened, however, a software store will
not accept the software back for a refund. In a variation on this scheme, a software product's packaging may contain a
fine-print clause such as "By opening this package, you agree to the terms of the License Agreement inside." In other words,
the user (unless equipped with Superman vision) is being forced to agree to a legally-binding contract before he or she can
even read it! 

It is for these reasons that I present the "Software Vendor License Agreement". When purchasing software, send a copy of the
SVLA below to the vendor. The SVLA serves two primary purposes: 

1.	The SVLA passes the hassle of "if-you-don't-accept-this-license" refunds from the end-user to the software company, where
it belongs. Typically, by the time you get to see what you have to agree to in order to use the software, they've already
got your money. Therefore, I feel it's time for them to take a little responsibility as well.
2.	The SVLA attempts to protect consumers from software that doesn't live up to its claims (including software that is
fundamentally "broken" or flawed), software that can invade the user's privacy, and software that performssome function,
other than its advertised purpose, that is intentionally hidden from the user.

The Software Vendor License Agreement is presented below. I haven't any idea whether (or to what extent) the SVLA is legally
valid--or whether the clickwrap licenses themselves are valid, for that matter. But if enough people are willing to adopt
consumer protections such as the SVLA, it may be possible to turn the tide on bad software and user-hostile license
restrictions. 
Ê 

SOFTWARE VENDOR LICENSE AGREEMENT 

IMPORTANT-READ CAREFULLY: This Software Vendor License Agreement ("SVLA") is a legal agreement between you, the software
vendor ("Vendor"), and the end user ("User") of a software product ("Software") legitimately purchased from your company.
You must accept this Agreement to complete the sale of a software license to the User. If you do not accept the terms of
this Agreement, the User is unwilling to complete the transaction and you should provide a convenient mechanism for the User
to return the Software to you and receive a refund for the full purchase price of the Software ("Refund"). By selling your
Software to the User and failing to offer a Refund to the User, you agree to be bound by the terms of this SVLA. 

This SVLA is an amendment of any contracts, legal disclaimers or license agreements in which purchase of the software is
required to display the agreements. These agreements will be collectively referred to as the End User License Agreement
("EULA"), and will include any agreements contained inside the product's packaging, including those stored in
machine-readable form on the physical media on which the software is contained ("Media"), upon which the installation or use
of the Software is conditional. In areas where this SVLA conflict with the EULA, this SVLA shall supersede any conflicting
statements in the EULA. 
Ê 

USER RIGHTS 

(1) The User reserves the right to take measures to protect his or her privacy as well as the continued dependable and
error-free operation of the system on which the Software will be installed. To this end, the User reserves the right to take
proactive measures to ensure that these fundamental rights will be upheld. These measures may include: 

* Conditional installation or non-installation of some or all components of the Software. The User reserves the right to
* refuse installation or forcibly prevent installation of any component, module, file or other information ("Component")
* that may compromise those rights set forth in (1). The User also reserves the right to manually remove, or use software to
* remove, any component after the installation has completed. This includes, without limitation, any type of "Spyware" or
* other component that compromises the User's privacy or otherwise negatively affects the User's use of legitimately
* purchased Software or the system on which it is installed. 

* Quarantine of the installed Software. The User reserves the right to take measures as necessary to "quarantine" the
* Software, in whole or in part, to prevent or limit its use of any system resource, including memory, disk space, network
* connectivity, processor usage or files present on the system. The user may selectively choose to prevent the Software's
* access to specific files and Internet resources, filter incoming and outgoing data, or use mechanisms to block or simulate
* access to any system resource or information. 

(2) While it is understood that no Software is perfect, the User reserves the right to expect that the Software will
function as advertised, in a reasonably robust and error-free manner, or return the Software for a complete,
no-questions-asked Refund if it is found that the Software fails to perform in such a manner. 

* Debugging or work-around of errors in the Software. If the Software is found to contain errors that prevent or limit its
* advertised function ("Errors"), and the software vendor is unable or unwilling to provide a refund or correct such Errors
* in a timely manner, the User reserves the right to debug, work around, or correct such Errors without further
* authorization from the Vendor, even if these work-arounds or bugfixes require modifications be made to some or all of the
* Software's Components. Such modifications may require that the User view and make changes to the Software's binary code,
* either in its raw form or a machine-translated form the User can use more conveniently. The content of such
* software-improving modifications are the sole property of the User and may not be copied or used by the Vendor without the
* express consent of the User. 
[Clarification: The User does not gain copyright ownership of the Software Components modified, but simply maintains the
rights to the modifications themselves. This clause merely prevents instances of the Vendor profiting from the User's hard
work and expertise without consent, and supersedes EULA clauses giving the Vendor rights to such modifications.] 
The User agrees that these modifications are for his or her own personal use, and may not sell modified copies of the
Software for a profit. The User may, however, instruct others in performing the modifications necessary to improve the
Software. The User agrees to hold the Vendor harmless for any damage that directly results from modifications the User has
made to the Software. 

* Improvement of the Software. As in the case of Errors present in the Software, the User reserves the right to make
* improvements to the Software for his or her own personal use, using methods set forth in the previous section. Again, the
* content of these Improvements themselves are the property of the User, and the User agrees to hold the Vendor harmless for
* damage directly resulting from the modifications made. The User further agrees not to distribute the modified software or
* profit from the distribution of the modifications/improvements. 

(3) The Vendor agrees that the contents of the User's computing facilities, including data stored in memory or on disk,
environment variables, user habits and system geometry are considered private and understands that the system on which the
Software is installed may contain proprietary information. The Vendor agrees that such private information may not be
transmitted in whole or in part without the prior express consent of the User. The User must be informed in clear,
unambiguous wording of any data-transmission capabilities that may compromise the privacy of any User data, and allowed to
explicitly allow or disallow the transmission, BEFORE any transmission takes place. This information must be explicitly
stated independently of the EULA or any other textual materials that may diminish the force and effect of this information. 
Ê [Clarification: The Vendor understands that "burying" such information in the fine print, help documents or other
materials does not satisfy the Vendor's obligation to disclose this information.] 
The User reserves the right to proactively enforce this privacy as described in (1). For the purposes of the SVLA, "system
geometry" refers to information about the features and capabilities of the system and the devices connected to it, including
information about the size of the hard drive, amount of memory, processor speed, size and speed of local networks, and
information about attached peripherals. 

(4) Truthful representation of the Software and its abilities. The Vendor agrees that that the Software and its functions
have not been misrepresented to the User, and that the Vendor has not made false or misleading claims relating to the
purpose, function, capabilities or other aspects of the Software's operation. 

* Consumer protection from false claims. Upon reasonable suspicion that the functionality or purpose of the Software have
* been misrepresented, the User reserves the right to seek outside analysis of the Software by qualified professionals. To
* this end, the User may be required to disclose information necessary to evaluate such claims to an appropriate party or
* parties qualified to make such an evaluation. This disclosure may include descriptions of the Software's behavior,
* promotional materials, packaging, or some or all of the Software itself. 

* Disclosure of evidence of false claims. The User reserves the right to disclose the results of a professional analysis of
* the Software, including information relating to false claims, and provide evidence of such claims. 

* "Censorware Clause": Disclosure of proprietary information to substantiate claims of wrongdoing. If it has been determined
* that the Vendor has engaged in false claims or other wrongdoing relating to the operation of the Software, the User
* reserves the right to disclose portions of the Software necessary to substantiate allegations of wrongdoing, even if such
* disclosures contain information considered private or proprietary by the Vendor. This clause specifically targets
* "censorware" and Software products of like type. 
Ê 

USER RESPONSIBILITIES 

(1) Piracy Protection. This SVLA applies ONLY to legitimately purchased commercial software. It does not apply to Freeware
or unpurchased Shareware products. The User agrees that he or she has legitimately purchased the Software. THE SVLA IS NOT A
PIRACY LICENSE and does not entitle the User to violate copyright laws. 

* The User agrees to make reasonable efforts to protect his or her copies of the Software and license codes, if any, from
* theft and improper use. The User agrees not to distribute copies of the Software or facilitate the distribution of the
* Software. The User understands that the unauthorized duplication of the Software is a crime and is punishable by law. 

* If a legitimate copy of the Software comes with a Certificate of Authenticity or other proof of ownership, the User agrees
* to present this proof of ownership to the Vendor as necessary to receive technical support, Software updates, etc. If the
* Software is not accompanied by a Certificate of Authenticity or other proof of purchase, the User shall present the
* original Media, packaging, or software license codes, as required by the Vendor, to indicate proof of ownership. 

(2) Proprietary information. The User understands that the Software may contain private or proprietary information,
including proprietary algorithms protected by copyright. 

* The User understands that during the course of installing, modifying or using the Software, he or she may be exposed to
* proprietary algorithms, and agrees that this information is the property of the Software Vendor, and may not be disclosed
* by the User or used for other purposes, except as permitted by law, without the express consent of the Vendor. This clause
* specifically excludes non-executable data files containing materials not owned by the Vendor and those materials and
* situations covered by the "censorware clause". 

(3) Refunds. The User agrees that his or her eligibility for a Refund is conditional on his or her ceasing use of the
Software and removing all Components from the system. The User is required to remove all copies of the Software from the
system and may be required to return or destroy the original Media and proof of ownership, if applicable, upon receiving the
Refund. 

-- 

Proposed additions to the SVLA: 
A clause clarifying a User's rights with respect to a program's output files. Copyright restrictions, while applying to
program data files created by the Vendor, typically should not apply to the files the User creates in the program. (In other
words, if a user creates and saves a word-processor document, that document belongs to the user creating the document, with
no rights to the document extended to the software vendor: texts, images, Macros, etc. DO NOT become the property of the
vendor.) 

Information pertaining to user rights when uninstalling the software. Specifically, software uninstall is required to remove
ALL components of the software, and remove ONLY components of said software. It may not make other changes to the system,
remove other files, or leave the system in a mis-configured state. Legitimately purchased software is explicitly prohibited
from leaving "turds" (small, intentionally hidden bits of data conveying information about a software install) present on
the system. 

More detailed information pertaining to disclosure or review of software and its performance characteristics, including
benchmarking. Some currently-available software licenses forbid the user from "talking about" the software in some way
(forbidding criticism, reviews or benchmarks) or requiring authorization from the Vendor before doing so. McAffee has been
sued by the state of New York over just such a restriction. 

Requirement that vendors disclose copy-protection methods (e.g. doc-checking, online registration, uncopyable CDs, etc.) on
the outside of the package. While making no judgments regarding the Vendor's right to use any available copyright protection
mechanisms, the SVLA will require disclosure of any such mechanisms used by the software. The user can then make an informed
decision regarding whether he/she will tolerate the method(s) used or seek alternative software. (Some anti-piracy measures
prevent the user from making legitimate back-up copies of software, require the user to authenticate the software by
entering a code or portion of the software's manual before each use, require Internet/phone access or transmitting private
information to the vendor, etc. Some users find these restrictions objectionable.) 


-- 
You know what would make a good story? Something about a clown who make people happy, but inside he's
real sad. Also, he has severe diarrhea.
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