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 COLUMN
Control with fine print THE MOST DANGEROUS snake is the one you don't see until you step on it. I think that might also be said of the license terms hiding in shrinkwrap/clickwrap licenses.
This confused some FrontPage users, as they reported that they could not find that term in the EULA they could read in the program's Help files. Adding to the confusion was the failure of some non-FrontPage users to find a copy of the EULA on the Internet; all they came up with were bans against using the FrontPage logo and/or specific Web components such as the MSNBC news headlines on Microsoft-disparaging sites. I knew the EULA my sources had provided was different than those mentioned above, but I decided to go down to the store and buy a copy of FrontPage 2002 for myself. The first thing out of the box was a four-page folded sheet with two bold lines saying "Microsoft FrontPage 2002" and "Licenses: 1" at the top, followed in big letters by "End-User License Agreement for Microsoft Software." Several paragraphs down, in what otherwise seemed like the standard Office application EULA complete with all the typical warranty disclaimers, was the "Restrictions" paragraph containing the term. The whole sentence read: "You may not use the software in connection with any site that disparages Microsoft, MSN, MSNBC, Expedia, or their products or services, infringe any intellectual property or other rights of these parties, violate any state federal or international law, or promote racism, hatred or pornography." (Parse that sentence and you'll see that either it's intended to be even more overreaching than it first appears or somebody in Microsoft legal needs to brush up on his or her grammar.) When I went to install the program, however, a slightly different "End-User License Agreement for Microsoft Software" popped up. Although similar in many respects to the printed version, it didn't make any specific mention of FrontPage or the number of licenses being granted. And the whole "Restrictions" paragraph, including the no-disparaging-Microsoft clause, wasn't there. With more than one EULA that appeared to apply to FrontPage 2002, I asked Microsoft if they could clarify matters. A spokesman acknowledged that having two EULAs was confusing but pointed out that the printed version says it applies to the "Microsoft FrontPage Web components." That, the spokesman said, only refers to things such as the MSNBC news headline and MSN Search components. "Those components include logos and trademarks of other companies, so that additional EULA does include that language to cover how they can be used," he said. "I agree that we could certainly make that clearer, and I think we will. But there is nothing in FrontPage or its EULA that limits free speech." Given the other examples that readers found where it was clearer that the term did apply just to the logos or Web components, I can certainly accept that the term owes its origins to the desire to prevent abuse of those logos and components. But also given those examples, which were just a few paragraphs at most, it's hard to believe that the printed EULA is not supposed to apply to the FrontPage program itself. If the software being described is only those components and not the full program, why present a full license with many terms that don't apply to those components? Why say Microsoft FrontPage 2002 at the top and specify the number of licenses being granted (thereby making it a document one had better save in case the compliance police show up)? And if the license being granted isn't for the full program I purchased, shouldn't I return the whole package from whence it came as a possible counterfeit under Microsoft's own anti-piracy guidelines? Ultimately, of course, it doesn't really matter what Microsoft's intent was in creating the no-disparaging-Microsoft term. That it exists at all is what's important, because we already know how it might be used in a situation where they really want to squelch somebody. When Microsoft included a term prohibiting disclosure of benchmarks without its permission in the SQL Server license, it's pretty certain the intent was not to prevent people from publishing benchmarks comparing Windows 2000 performance to Windows NT. But that's exactly how it was used to block an independent lab from releasing results of an OS comparison that used SQL Server as part of the test bed (see The Gripe Line). If SQL Server's license could be applied in that situation, the FrontPage EULA could be used to limit free speech at least as easily. I think we should take this as an object lesson, not just about Microsoft, but about software licenses in general. Few FrontPage users could find their printed EULA, and the actual license was nowhere to be seen on Microsoft's Web site. Even when you know it exists, a term like this is almost impossible to see. That's what really makes it dangerous. For more on this issue, visit The Gripe Line forum at www.infoworld.com/forums . Contact InfoWorld's reader advocate, Ed Foster, at gripe@infoworld.com. Discuss this article in our online forums MORE > SPONSORED WHITE PAPERS 
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