Fun with clickwrap licenses

August 8, 2007

The other day I installed some software from Microsoft Research, and for some weird reason, I decided to read the EULA. I found this gem (which, after Googling, seems to be a pretty common phrase in these things):

You may use any information in intangible form that you remember after accessing the Software.

Oh really?!? I can?? Gee whiz, thanks, guys. “Ya know, under normal circumstances, we’d wipe your memory, but what the hell, we’re in a good mood today — you can keep it.”

I know these kinds of ridiculous claims in EULAs aren’t a new thing, and Microsoft’s licenses are probably no worse than many other big software companies. As I understand it, these click-though (aka clickwrap) licenses — if they are even enforceable — are subject to standard contract law. Still, it seems to me that it shouldn’t be legal to draft a contract which denies or grants privileges which are already protected by law.

The intellectual property situation in software development is getting scary. Jeff Atwood wrote a good post not too long ago called The Coming Software Patent Apocalypse. Software patents are actually scarier than the ridiculous EULAs, because you can infringe a patent by complete accident. Unlike copyright, patent protects against independent invention — in other words, you can infringe on a patent even if you can prove that you had absolutely no knowledge of the patented invention.

Since the number of (US) software patents seems to be growing exponentially, it’s really becoming a minefield for small developers. Many people have said that it’s impossible to write software without infringing on a number of patents. Linus Torvalds has even said that the only realistic approach is to bury your head in the sand.

If you’re interested in the topic, I definitely recommend reading A New View of Intellectual Property and Software. It’s a bit dated now (published in ‘96), but it’s a great summary of the problems with existing IP laws related software, and has some interesting suggestions about how to fix things. One of the authors, Pamela Samuelson, also recently published a proposal for copyright reform in the US.

(Photo by galuppi on Flickr)