The fine print

I have to be careful what I say about McAfee. No, really.

I have to be careful what I say about McAfee. No, really. Part of the antivirus and privacy product’s licence states, “The customer shall not disclose the results of any benchmark test to any third party … and will not publish reviews of the product without prior consent …” So much for free speech and democracy.

Network Associates — McAfee’s parent company — insists the licensing provisions are merely to stop journalists reviewing outdated versions or conducting inappropriate tests, but that’s not a defence that’s impressed New York State attorneys. In February, they filed a suit against the company alleging the restriction is not only censorship, but may harm the public by preventing product flaws and defects from being revealed.

McAfee isn’t alone in punitive licence restrictions. There’s a trend in the industry towards more restrictive behaviour.

Legitimate beef?

Earlier this year, development software maker Borland was forced to change its licensing. Developers were outraged over an auditing clause that gave the company the right to enter users’ premises and go through their computers “upon reasonable notice” — a right not even the police possess, regardless of how much notice they may give.

But what really got backs up were clauses irrevocably waiving rights to jury trials, or class actions, against the company. If you and 10,000 others had the same legitimate beef, you would have to go it alone. I bet the tobacco companies are kicking themselves for not coming up with that one!

Did I mention the Borland products concerned were free-to-use downloads where no money changed hands?

Offensive clauses

If you’ve got a Hotmail account you’re a Microsoft Passport user, whether you like it or not. In April last year an “error” in changes to Passport’s terms and conditions led to the addition of this clause:

“By posting messages, uploading files, inputting data, submitting any feedback or suggestions, or engaging in any other form of communication with or through the Passport Website … you are granting Microsoft and its affiliated companies permission to:

1. Use, modify, copy, distribute, transmit, publicly display, publicly perform, reproduce, publish, sublicense, create derivative works from, transfer or sell any such communication …”

In short, anything sent to or from a Hotmail account became Microsoft’s property; your latest novel, that brilliant business idea, the snaps of the wife and kids you sent to the rellies … The clause was dropped after widespread protest, but one other disturbing clause remains:

“You understand that Microsoft reserves the right to make … changes and that you are responsible for regularly reviewing these terms, conditions and notices. Continued access to or use of the Passport Services after any such change shall constitute your consent to such change.”

So the offending clause, or something equally punitive, could reappear at any time without notification. It’s up to you to check Hotmail’s 2600-plus word terms and conditions each time you sign on. But don’t forget the 19-page MSN website terms of use and notices!

The enforcer

One argument I often hear about such ludicrous provisions is, “Oh yeah, but they’d never try to enforce that.” Then why include it? Why pay high-priced lawyers to draft provisions you have no intention of enforcing? Where then are the clauses allowing the CEO of the software company to dance naked on your desktop, since I’d like to bet (and hope!) that he has no intention of doing that either?

The answer, of course, is intimidation. While no one’s actually been sued for publishing unauthorised reviews, waving the threat around is often enough to get a piece dumped. A couple of years ago Microsoft invoked the “no reviews” clause on its SQL Server product after an independent testing lab found performance discrepancies when running it on Windows 2000 versus Windows NT. The lab, Competitive Systems Analysis of California, decided not to get into a legal scrap with the multibillion-dollar corporation and quietly shelved its findings. And New York State’s case against McAfee claims a similar clause was used to demand a retraction after an unfavourable review of one of its products.

Software producers then brought in the “clickwrap” trap; by buying the product you agree to its terms and conditions, which can only be seen by starting installation. Yet once the shrinkwrap on the package is broken, retailers refuse to refund your money.

I conducted a totally unscientific straw poll of several large computer shops — all parts of national chains — and came up with the same result. If the shrinkwrap’s broken, they won’t refund. But what if I don’t agree with the licence agreement? “I’m sorry, sir, but that’s our policy.”

No, I’m sorry, but that’s bull. Most reputable software makers at least acknowledge the dilemma. The Microsoft products I looked at had something like this printed on the outer packaging:

“You must accept the enclosed licence agreement before you can use the enclosed product. If you do not accept the terms … you should promptly return the product for a refund.”

At least that gives you something to point out to the recalcitrant sales clerk. Incidentally, the most ludicrous claim I heard for not being able to return software was that it might have become infected with a virus. When I asked how it was possible for a virus to infect a mass-produced CD-Rom sitting in a non-writeable CD player, I was told, “I’m sorry, sir, but that’s our policy.”

Clickwrap rebellion

Refunds notwithstanding, the clickwrap trap is still Hobson’s choice. You can either begrudgingly agree to the hidden terms and conditions or live without the software. Or must you?

An anarchic site in the US has come up with a software vendor licence agreement that they suggest should be printed and sent with every purchase. Here‘s a snippet from the first paragraph:

“This Software Vendor Licence 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 licence to the User. If you do not accept the terms of this Agreement, the User is unwilling to complete the transaction and you must 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’).”

The authors of the document (the whole 2000-worder can be found at cexx.org/svla.htm) say they have no idea whether the SVLA is legally valid, nor whether clickwrap licences are legally valid. “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 licence restrictions.”

Right on!

Clicking your rights away

Like Windows Media Player? You might change your mind if you read the licence agreement that comes with their “latest”(?) and “critical”(?) security patch:

“You agree that in order to protect the integrity of content and software protected by digital rights management (‘Secure Content’), Microsoft may provide security-related updates to the OS components that will be automatically downloaded onto your computer. These security-related updates may disable your ability to copy and/or play Secure Content and use other software on your computer. If we provide such a security update, we will use reasonable efforts to post notices on a website explaining the update.”

In short, agreeing to these terms grants Microsoft complete rights to do whatever they like to your PC. No warnings, no asking “Is this OK with you?” With automated updates you won’t even know it’s happening. And it’s not just Media Player either. The updates “may disable … other software on your computer” too. I’m just glad I use Linux.

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