Reader Voices: Invalid Terms

At what point is it clear that a nasty license provision goes so far across the line that it must be deemed invalid? That seems to be an increasingly hot topic, due in large part to recent discussions here and elsewhere about various terms in Microsoft's Windows Vista EULA. I have long argued that EULA-based censorship clauses -- even without the Vista EULA's requirement to view changeable "conditions" on a Micr

At what point is it clear that a nasty license provision goes so far across the line that it must be deemed invalid? That seems to be an increasingly hot topic, due in large part to recent discussions here and elsewhere about various terms in Microsoft's Windows Vista EULA.

I have long argued that EULA-based censorship clauses -- even without the Vista EULA's requirement to view changeable "conditions" on a Microsoft webpage -- must be unenforceable and maybe even unconstitutional. Many readers agreed that the Vista censorship clause is beyond the pale. "Three issues will affect the validity of this clause in many jurisdictions, all related to the conditions webpage," one reader wrote me. "First is that users are forced to agree to content in another document not included at time of purchase. Second, the user is also forced to agree to conditions that are not known at time of purchase. Third, a user may not have purchased the product under a new set of conditions revealed at some point after the product is purchased. Any of these three alone would invalidate the clause. Together they reduce its validity even further. In the U.S. there is a great deal of precedent law concerning 'warn and instruct' that puts the onus on the manufacturer to correctly and completely instruct customers on the proper use of a product. The Microsoft EULA, with this and it other parts of the document, prevents this from happening by saying that conditions of use may change without notice."

Of course, it's not just Microsoft that pushes EULA terms to the limit. "My wife bought me some games for my birthday," wrote another reader. "All but one were fine. One had a EULA that required that I install a rootkit/spyware." (In this the reader was referring to a game that uses the "StarForce" copy protection scheme, which has gotten criticism rivaling that received by Sony's 2005 rootkit DRM and accompanying EULA.) "I refused and called CompUSA. The local manager said it was not returnable, but I went up a level and the regional manager agreed to the return. This does bring up a whole other debate but the key is to read the EULA and then decide. If enough people have a beef with bad EULAs then the store may put pressure back on the software companies."