It is for these reasons that I present the "Software Vendor License Agreement". When purchasing software, send a copy of the SVLA below to the vendor. The SVLA serves two primary purposes:

1. The SVLA passes the hassle of "if-you-don't-accept-this-license" refunds from the end-user to the software company, where it belongs. Typically, by the time you get to see what you have to agree to in order to use the software, they've already got your money. Therefore, I feel it's time for them to take a little responsibility as well.
2. The SVLA attempts to protect consumers from software that doesn't live up to its claims (including software that is fundamentally "broken" or flawed), software that can invade the user's privacy, and software that performs some function, other than its advertised purpose, that is intentionally hidden from the user.
• Many software licenses specifically deny the user of basic consumer protections present on virtually all other consumer products, including a guarantee that the product is free from mortal defects and will perform its advertised duties. If software crashes consistently on your system or flat out refuses to operate, tough rocks. They've got your money and there's nothing you can do about it. The SVLA gives the user the right to modify, debug, and disassemble a software product if the software contains such errors and the vendor refuses to offer a refund or correct the defects. Since there are few things software companies hate more than users disassembling their programs, it should serve as a strong encouragement to provide the user with a positive software experience or face the consequences.
• The recent controversy over Spyware and software of like type screams of a need for both software vendors and users to take user privacy more seriously. Currently, it is becoming a more and more common practice for software, both "freeware"/shareware and paid-for commercial products, to contain additional modules whose purpose is to track the user's habits and report private information back to the vendor for marketing purposes. For obvious reasons, steps are usually taken to hide this activity from the user. The SVLA forces the software vendor to acknowledge a user's computing facilities as private property and treat the information on them with respect. It also empowers the user to take an active role in limiting any software product's access to information or network access without running afoul of any licensing agreements buried in the software itself.
• A third software category which lends itself to abuse is the niche of "Censorware" applications. These applications are marketed as tools to block access to pornography and various other categories of "objectionable" material on the Internet, but historically have miserably failed to perform their advertised function, and have often been caught pushing some type of political agenda--blocking gay- and minority-rights Web sites as pornographic, blocking critics and competitors as "hate sites", etc. (Imagine if you ran a site advocating AIDS research, and some software company was calling you a pornographer!) When caught in the act, they have usually attempted to sue their discoverers for "copyright infringement", claiming the rights on their URL blockfiles have been violated when someone publishes a list of sites the software is wrongfully blocking. The SVLA provides limited protection from software that misrepresents its functions, and empowers the user to disclose "proprietary data" from the software as evidence of this misrepresentation.

The Software Vendor License Agreement is presented below. I haven't any idea whether (or to what extent) the SVLA is legally valid--or whether the clickwrap licenses themselves are valid, for that matter. 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 license restrictions.

See also: Battle of the Forms
 

SOFTWARE VENDOR LICENSE AGREEMENT

IMPORTANT-READ CAREFULLY: This Software Vendor License 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 license 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"). By selling your Software to the User and failing to honor Refunds for returned Software, you agree to be bound by the terms of this SVLA.

This SVLA is an amendment of any contracts, legal disclaimers or license agreements in which purchase of the software is required to display the agreements. These agreements will be collectively referred to as the End User License Agreement ("EULA"), and will include any agreements contained inside the product's packaging, including those stored in machine-readable form on the physical media on which the software is contained ("Media"), upon which the installation or use of the Software is conditional. In areas where this SVLA conflict with the EULA, this SVLA shall supersede any conflicting statements in the EULA.
 

USER RIGHTS

(1) The User reserves the right to take measures to protect his or her privacy as well as the continued dependable and error-free operation of the system on which the Software will be installed. To this end, the User reserves the right to take proactive measures to ensure that these fundamental rights will be upheld. These measures may include:

* Conditional installation or non-installation of some or all components of the Software. The User reserves the right to refuse installation or forcibly prevent installation of any component, module, file or other information ("Component"), including without limitation Components that may compromise those rights set forth in (1). The User also reserves the right to manually remove, or use software to remove, any component after the installation has completed. This includes, without limitation, any type of "Spyware" or other component that compromises the User's privacy or otherwise negatively affects the User's use of legitimately purchased Software or the system on which it is installed.

* Quarantine of the installed Software. The User reserves the right to take measures as necessary to "quarantine" the Software, in whole or in part, to prevent or limit its use of any system resource, including memory, disk space, network connectivity, processor usage or files present on the system. The user may selectively choose to prevent the Software's access to specific files and Internet resources, filter incoming and outgoing data, or use mechanisms to block or simulate access to any system resource or information.

(2) While it is understood that no Software is perfect, the User reserves the right to expect that the Software will function as advertised, in a reasonably robust and error-free manner, or return the Software for a complete, no-questions-asked Refund if it is found that the Software fails to perform in such a manner.

* Debugging or work-around of errors in the Software. If the Software is found to contain errors that prevent or limit its advertised function ("Errors"), and the software vendor is unable or unwilling to provide a refund or correct such Errors in a timely manner, the User reserves the right to debug, work around, or correct such Errors without further authorization from the Vendor, even if these work-arounds or bugfixes require modifications be made to some or all of the Software's Components. Such modifications may require that the User view and make changes to the Software's binary code, either in its raw form or a machine-translated form the User can use more conveniently. The content of such software-improving modifications are the sole property of the User and may not be copied or used by the Vendor without the express consent of the User.
[Clarification: The User does not gain copyright ownership of the Software Components modified, but simply maintains the rights to the modifications themselves. This clause merely prevents instances of the Vendor profiting from the User's hard work and expertise without consent, and supersedes EULA clauses giving the Vendor rights to such modifications.]
The User agrees that these modifications are for his or her own personal use, and may not sell modified copies of the Software for a profit. The User may, however, instruct others in performing the modifications necessary to improve the Software. The User agrees to hold the Vendor harmless for any damage that directly results from modifications the User has made to the Software.

* Improvement of the Software. As in the case of Errors present in the Software, the User reserves the right to make improvements to the Software for his or her own personal use, using methods set forth in the previous section. Again, the content of these Improvements themselves are the property of the User, and the User agrees to hold the Vendor harmless for damage directly resulting from the modifications made. The User further agrees not to distribute the modified Software or any Component thereof.

(3) The Vendor agrees that the contents of the User's computing facilities, including data stored in memory or on disk, environment variables, user habits and system geometry are considered private and understands that the system on which the Software is installed may contain proprietary information. The Vendor agrees that such private information may not be transmitted in whole or in part without the prior express consent of the User. The User must be informed in clear, unambiguous wording of any data-transmission capabilities that may compromise the privacy of any User data, and allowed to explicitly allow or disallow the transmission, BEFORE any transmission takes place. This information must be explicitly stated independently of the EULA or any other textual materials that may diminish the force and effect of this information.
  [Clarification: The Vendor understands that "burying" such information in the fine print, help documents or other materials does not satisfy the Vendor's obligation to disclose this information.]
The User reserves the right to proactively enforce this privacy as described in (1). For the purposes of the SVLA, "system geometry" refers to information about the features and capabilities of the system and the devices connected to it, including information about the size of the hard drive, amount of memory, processor speed, size and speed of local networks, and information about attached peripherals.

(4) Truthful representation of the Software and its abilities. The Vendor agrees that the Software and its functions have not been misrepresented to the User, and that the Vendor has not made false or misleading claims relating to the purpose, function, capabilities or other aspects of the Software's operation.

* Consumer protection from false claims. The User reserves the right to seek outside analysis of the Software by qualified professionals. To this end, the User may be required to disclose information necessary to evaluate such claims to an appropriate party or parties qualified to make such an evaluation, including error messages, product observations or performance data.

* Review. The User reserves the right to disclose observations of the software's operation, including product faults, benchmark data, reviews, statements of personal opinion, and information relating to false claims, and provide evidence of such claims, without interference from the Vendor.

* Disclosure of proprietary information to substantiate claims of wrongdoing. Upon reasonable suspicion that the Vendor has materially misrepresented one or more aspects of the Software, the User reserves the right to disclose information necessary to substantiate allegations of such, even if the nature of such disclosure requires the presentation of information considered private or proprietary by the Vendor. This clause specifically targets "censorware" and Software products of like type.

(5) Copyright of User-generated data. The Vendor agrees that the User retains all rights to information loaded, typed or otherwise entered into the Software by the User. The Vendor may not transmit, reproduce, lease, sublicense or create derivative works of User-entered data in whole or in part without express written permission from the User. The Vendor may not restrict the User's rights with respect to User-entered data or User-generated files, including User rights concerning the usage or expression of User data stored in files generated by the Software.

(6) Dispute resolution. This Section applies to any dispute between you and the User arising out of or relating to this Agreement.

* Resolution procedure. The Vendor agrees that the legal procedure selected for dispute resolution, including small-claims court, class action or arbitration, shall be decided upon by the User.

* Choice of venue. This agreement shall be subject to the laws of the purchaser's home state, country or area of jurisdiction, or, at the consumer's discretion, subject to the laws of the venue in which it was purchased.
 

USER RESPONSIBILITIES

(1) Piracy Protection. This SVLA applies ONLY to legitimately purchased commercial software. It does not apply to Freeware or unpurchased Shareware products. The User agrees that he or she has legitimately purchased the Software. THE SVLA IS NOT A PIRACY LICENSE and does not entitle the User to violate copyright laws.
[Clarification: The User understands that modifications to a program with the intention of tampering with non-malfunctioning copy-protection schemes does not fall into the category of "Defects".]

* The User agrees to make reasonable efforts to protect his or her copies of the Software and license codes, if any, from theft and improper use. The User agrees not to distribute copies of the Software or facilitate the distribution of the Software. The User understands that the unauthorized duplication of the Software is a crime and is punishable by law.

* If a legitimate copy of the Software comes with a Certificate of Authenticity or other proof of ownership, the User agrees to present this proof of ownership to the Vendor as necessary to receive technical support, Software updates, etc. If the Software is not accompanied by a Certificate of Authenticity or other proof of purchase, the User shall present the original Media, packaging, or software license codes, as required by the Vendor, to indicate proof of ownership.

(2) Proprietary information. The User understands that the Software may contain private or proprietary information, including proprietary algorithms protected by copyright.

* The User understands that during the course of installing, modifying or using the Software, he or she may be exposed to proprietary algorithms, and agrees that this information is the property of the Software Vendor, and may not be disclosed by the User or used for other purposes, except as permitted by law, without the express consent of the Vendor. This clause specifically excludes non-executable data files containing materials not owned by the Vendor and those materials and situations covered by the "censorware clause".

(3) Refunds. The User agrees that his or her eligibility for a Refund is conditional on his or her ceasing use of the Software and removing all Components from the system. The User is required to remove all copies of the Software from the system and may be required to return or destroy the original Media and proof of ownership, if applicable, upon receiving the Refund. For the purposes of this Agreement, such a removal will be considered completed if (a) the User has made a good faith effort to remove all portions of the Software from the system using a Vendor-supplied uninstaller, the system's Add/Remove Software function, or comparable mechanism of software removal, and (b) the software installation has been reduced to a non-operable state.

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Proposed additions to the SVLA:

Information pertaining to user rights when uninstalling the software. Specifically, software uninstall is required to remove ALL components of the software, and remove ONLY components of said software. It may not make other changes to the system, remove other files, or leave the system in a mis-configured state. Legitimately purchased software is explicitly prohibited from leaving "turds" (small, intentionally hidden bits of data conveying information about a software install) present on the system.

User rights under the First Sale doctrine: User should retain the right to consider the physical installation media as physical property, with all the rights and benefits thereof. This includes the right to sell the media after discontinuing use of the product. (Does the FSD apply if there is no physical media, e.g. software purchased and downloaded online? Transfer-of-license clause?

Software that intentionally cripples itself. Some software performs--or according to the EULA, is allowed to perform--"self help" procedures allowing the Vendor to remotely disable the Software. The typical excuse is that the Vendor thinks the User has violated the license, but the capability exists to cripple the software for any reason (Vendor wants more money) or no reason at all. With AutoUpdate features comes the ability for a software/service vendor to make undesirable changes to a product after the purchase has been made. These changes include the alteration or removal of functionality and features, or the remote disabling of the Software. A clause should be added stating that the Vendor agrees to make no such changes without the advance, express permission of the user. ("Informed consent" is implied here.)

Software that intentionally cripples other software. Vendor agrees that the Software does not intentionally cripple or diminish the User's ability to use other legally owned/licensed properties, including without limitation the computer hardware and any software installed on it. (The only exception may be software where it is very obvious, and the desire of the user, that such a change will be made. Think anti-virus software removing viruses or Trojan Horse software.)
 
Gross negligence. I wasn't originally planning to add this type of clause, but some more recent information makes me think it's a good idea. Bad Software (Cem Kaner and David Pels) illustrates numerous instances where a software vendor can be held liable for consequential damages arising from gross negligence, such as knowingly releasing software with a bug that erases your hard drive, failure to adequately test software which contains such a bug, etc. I also received by email a report of *recent* commercial software (GameSpy Arcade) containing the Nimda virus. While such a thing has happened before, it hammers home that vendors shouldn't (and sometimes can't!) try to weasel out of responsibility for easily preventable catastrophes.
 
Prevention of unreasonable "ceilings" on incidental or consequential damages. This really goes with "Gross negligence" above. It has been brought to my attention that some software licenses, even while claiming no shred of accountability for incidental/consequential damages whatsoever, also include a clause limiting consequential damages to some ridiculous value (e.g. $50 or the price of the software). Why limit damages if you're not responsible for damages in the first place? Because sometimes you are (see above). So here is their second line of offense trying to weasel out of responsibility.

Explicitly extend coverage to software included on "prebuilt" systems. The text of the SVLA was written with software purchases in mind, but what if the software purchase comes in the form of a "Computer + Preloaded Software" purchase? (It is true [and, IMHO, perfectly reasonable] that people will base their purchasing decision in part on what software comes with it, not just the hardware specs.) The expenses here are potentially greater, since often the whole, bulky, heavy machine must be shipped back; furthermore, since there is nothing wrong with the hardware, many companies will charge a restocking fee of 15-20% of the purchase price.
 
Persons with strong legal backings are stongly encouraged to help us put the above into lawyer-speak, or otherwise advise us on how best to work them into the existing document.

Added additions to the SVLA: (These items have been added since the initial publication of the SVLA.)

Added (6): Choice-of-venue statement: Statement that the SVLA shall be subject to the laws of the purchaser's home state (country).

"Possibly impossible" additions to the SVLA:
Technical details prevent the following from being easily added to the SVLA. For example, requirements regarding disclosure cannot be agreed to after the time of purchase, when such disclosure is required. It may be possible to include such statements in a form such as "The Vendor asserts that [disclosure] has been made ..." under the section concerning misrepresentation.

Requirement that vendors disclose copy-protection methods (e.g. doc-checking, online registration, uncopyable CDs, etc.) on the outside of the package. While making no judgments regarding the Vendor's right to use any available copyright protection mechanisms, the SVLA will require disclosure of any such mechanisms used by the software. The user can then make an informed decision regarding whether he/she will tolerate the method(s) used or seek alternative software. (Some anti-piracy measures prevent the user from making legitimate back-up copies of software, require the user to authenticate the software by entering a code or portion of the software's manual before each use, require Internet/phone access or transmitting private information to the vendor, etc. Some users find these restrictions objectionable.)

Dealing with software that is designed to fail or will fail after a specificied time: Vendor should be required to disclose any "temporary", time-limited or subscription-based aspects of the software (hint, software updater and antivirus makers). While a Vendor should not be required to provide perpetual updates or service packs (e.g. antivirus definitions), the operation of the software should not explicitly hinge on the continued availability of such updates (e.g. "You are not permitted to run this software because the last update was over 2 weeks ago. Unfortunately, these updates are no longer provided. Pound sand.")

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Updates

[2/12/02] Some recent victories against aspects of clickwrap agreements:

• McAfee sued by the state of New York over an EULA clause forbidding the publication of product reviews.
• First Sale rights upheld in Softman v. Adobe decision. The First Sale doctrine gives a buyer of a physical product (including a software CD) the right to sell it again, contrary to the wording of many EULAs.

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Your comments are welcome! Please email me with any suggestions, recommendations, corrections, personal anecdotes ("Software vendor told me to go f*** myself") or other stuff.

-Bill