Every time I write an article I worry about whether you’ll enjoy it. Is it informative? Does it make you think and ask questions? Will you gain something that you can add to your business change repertoire?
Yesterday’s piece on the now-illegal practice of selling used software was a bit longer than my usual posts. So today, I have . . . MORE! The good news? If you ever find yourself in an intellectual property dispute you may be able to balance this story against yesterday’s.
A couple of weeks ago, a man in Hawaii scored a legal victory when a US District Court allowed him to sue the maker of a piece of software to which he has become “addicted”. I don’t like when people blame their problems on others in this way, and I have no idea what will happen when the actual lawsuit comes to trial. But something very good came of this: the software maker is not being allowed to hide behind the “license agreement” that accompanies the software.
Once again: it just isn’t reasonable to expect people to be bound by the terms of a license agreement that they’ve never read and aren’t truly informed about, even if they check a little box that says they agree. It’s particularly unfair to throw lawyers at people who “agreed” to software license terms without themselves being advised by attorneys. And remember that there’s no opportunity to negotiate revised terms to these license agreements.
In fact, that’s the real point.
Have you ever signed a contract that had not just a place for your signature at the bottom but also several spots within the contract where you were asked to initial specific passages? That isn’t actually “necessary”, since you’ve signed the agreement in whole. The reason you’re asked to initial specific passages is that attorneys who write contracts realize where their terms might be considered either unfair or specifically important and want extra backup documentation that they called your attention to those clauses.
So here’s an idea: software licenses should be broken down into digestible pieces that users can assent to. Sure, it would require that users click through a bunch of things instead of just one. And most still won’t really understand what they are agreeing to. But there’s more.
Using simple programming it’s possible to create a licensing construct where people who don’t agree with some of the terms in your software can still become users. Over time, a model like that would create an environment where people’s actions became a model for reasonable interpretation by courts. New users would continue to sign on, software companies would continue to earn revenue, and if there were specific issues that a blanket license shouldn’t be covering then those specific issues would be the ones that ultimately made it in front of judges.
Business change can be hard, and this would be a genuine business change. But in this case the change wouldn’t be hard, and ultimately would serve the interests of software companies, users, and the legal system.
