Robert W. Gomulkiewicz, Getting Serious About User-Friendly Mass Market Licensing for Software, 12 Geo. Mason L. Rev. 687 (2004), https://digitalcommons.law.uw.edu/faculty-articles/74
George Mason Law Review
contracts, end user licenses, plain language
Software publishers use standard form end user licenses (“EULAs”) in mass market transactions on a regular basis. Most software users find EULAs perplexing and generally ignore them. Scholars, however, have focused on them intently. In the past twenty years over a hundred scholarly articles have been written on the subject. Most of these articles criticize EULAs and argue that courts should not enforce them. In their critique of EULAs, some scholars examine the adequacy of the offer, acceptance, and consideration. Others discuss EULAs as part of the troublesome issue of standard form contracting, and whether standard forms, on balance, harm or benefit consumers. Still others focus on the intellectual property-contract law interplay. These issues are important to be sure, but there is little left to say. The issues have been talked to death.
Despite all the scholarly debate, one important reality remains: EULAs are here to stay for the foreseeable future. Courts, by and large, have enforced EULAs, provided the software publisher gives the user a reasonable opportunity to review and the user makes a meaningful manifestation of assent. Given this reality, it is crucial to address an issue that scholars have thus far ignored: what can be done to make licensing more “user-friendly?” Specifically, what can be done to help people better understand the terms and conditions of EULAs, and what can be done to encourage software publishers to craft simpler, fairer, more understandable licenses?
Part I of the article summarizes the heated debate about the use of mass market licenses in software transactions. Part II describes the typical contract-drafting process that leads to the creation of an unfriendly EULA. Part III argues that although software users and publishers share an interest in user-friendly licenses, serious obstacles get in the way. Parts IV through X then explore a series of ways to overcome these obstacles.
First, the article explores the ways that lawyers and the software publishers that they work for can craft more readable EULAs. Second, it addresses the positive role that law school education could play in training lawyers to craft more user-friendly EULAs. Third, it describes how technology such as “shopbots” and XML can make EULAs more user-friendly by helping software purchasers find EULAs with the terms they want. Fourth, it comments on the advisability of applying “plain language” legislation to EULAs as a way of inducing software publishers to improve EULAs.
The article concludes that the most powerful way to improve the userfriendliness of licensing is through new public interest non-government organizations (“EULA NGOs”) which use the mass communications capabilities of the World Wide Web.10 Using the Web, a EULA NGO could provide objective, expert, easy-to-read commentary on the pros and cons of particular EULAs to assist users in their purchasing decisions. A EULA NGO could also provide constructive feedback to software publishers about how to improve their licenses and describe and promote licensing best practices. Moreover, a EULA NGO’s commentary would create a valuable record of public comment about individual EULAs. This record could be used by a court in the event a user challenges or a software publisher attempts to uphold the enforceability of a EULA. The very existence and easy availability of this public record will provide a strong incentive for software publishers to improve the friendliness of their licensing.