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Doug Nebeker ("Doug")
i personally studied a bunch of other EULAs from similar software, noted the crucial points on a sheet of paper, then explained those points in my own words.
that so far, we haven't yet had a single case when a user would ask us something which is already covered there.
we also drop the license text in the installation folder, and create a link to it in our program's start menu group, so they can re-read it at will.
Tuesday, May 07, 2013
Yes I rolled my own. Nolo has a book about writing software license agreements, I found that very helpful. I also read through other products' EULAs for inspiration.
I think rolling your own is okay when you are just starting out, as long as you understand what you are writing. But I will have my EULA redone by an actual lawyer just as soon as I become big and successful.
Tuesday, May 07, 2013
Realize that there's no chance you'll ever use the EULA in court. So making it "ironclad" with dozens of pages of details isn't going to do anything except alienate customers and make it so you don't even understand it. Also, look at all the conflict over the first, second and fourth amendments despite how short they all are. Every sentence you add simply adds flaws. Shorter contracts have fewer flaws.
A lot of attorneys will write these long obscure legalese documents because it keeps them employed, and prevents anyone from understanding terms without hiring a lawyer themselves.
The best written legal decisions, those of the Supreme Court, are not written in legalese but are written so a regular person can understand them with a careful read.
I originally did what vv did, found what was in common among different EULA's and crafted what I thought was a very legal-sounding EULA.
Except I am not a lawyer, and didn't know exactly what were the critical elements. I wrote "license agreement" in the title, but in one of the paragraphs I had written "you are entitled to use one copy of the software." See the immediate legal issue with that? No? Neither did I.
Some years later, when the lawyers for the buyer of my company went through my old EULA's and saw that (I had used it for the first five customers or so, then got an attorney to create a real one for subsequent customers), they said they would have to cancel the deal because I had said "entitled to use" instead of "licensed to use" and that could be interpreted as giving ownership rights to my customers -- the rights they wanted to purchase. I had to fly around the country and get each of those initial customers to sign a new EULA that would give them fewer rights, really in return for nothing. It was a nightmare couple weeks of stress and anxiety all because I was too cheap when I started to spend $100 to have a real lawyer give me a proper EULA.
So yea, for an agreement as critical as ownership of your own application, spend the $100 to get it done right. (And that goes for any legal questions. It is NOT EXPENSIVE to get simple questions answered -- maybe $50 at most, or my lawyer for example wouldn't charge me at all just to email a quick response).
I take what CC said as a cautionary tale - worth thinking about.
Wednesday, May 08, 2013
@B2B -- beats me, but they were hung up on that, and my lawyer said something about if you don't specify it's a license to use the software, they are assumed to get certain ownership rights under some legal doctrine ("UCC" maybe, I forget exactly -- but it was something like selling a car, where you don't retain ownership rights).
"when the lawyers for the buyer of my company went through my old EULA's"
This is not exactly the same thing as getting your EULA's in order for customers. When you are selling your company, due diligence on the purchaser's part includes looking for anything that might reduce the value of what you are selling. It's much like a pre-existing caveat that your prospective purchaser feels will reduce the value of your company. It has nothing to do with the contract between your company and your customers.
There is nothing to stop you from having different EULA's for different customers. If the sales transaction involves a lawyer, the EULA should also be vetted by lawyers for both parties. For that type of transaction, it is presumed that both parties are fully aware of loopholes, ambiguities, etc., so a mistake in the wording of your EULA could become a liability.
If the sale consists of your customer checking a box or clicking on a button AFTER handing over money, you might as well put Ipsem lorem ... and your grandmother's borscht recipe in the EULA. The purchaser has implicit legal rights regarding the quality and suitability of your software as a result of giving you money. Those rights vary a lot depending on where the sale takes place. You can't get a customer to accept "unexpected" conditions after completing the transaction by paying you, unless you offer an unconditional refund if the customer discovers after paying that he or she doesn't like your EULA.
If you make your EULA available before the purchase, you might be able to argue in some circumstances that you are advertising that purchasers must accept conditions that are not part of what is considered to be reasonable and expected for this type of product, but you would have to spend lots of money on lawyers anyway to enforce those conditions. So if you want to enforce unusual conditions on your customers, start with an EULA designed by a lawyer. You obviously plan on spending lots of money on legal advice, what's a few hundred more for a document that can be interpreted in a hundred different ways by a dozen different lawyers?
Using a boilerplate EULA might be a way to demonstrate that you have made an effort to provide a product which meets the accepted (and expected) standards for quality and suitability. The cost of a boilerplate EULA (and these things aren't copyrighted, so steal ideas from other companies) is very low, so even if you only get a small benefit from having a written EULA, it is still worthwhile. It's like putting a letterhead on your stationary, it makes you look like a big shot.
I have a simple EULA that says it's licensed not sold, and the user can either choose to install it on all his personal computers for his own use, or can install it on a single computer for use of multiple people at that one computer.
Over the years a couple of people have complained about this, they were other software people who had complex EULAs and who were advocating for some complex thing.
I have no prohibition on reverse engineering for example. "You should put that in! If you don't people will reverse engineer your product!"
So? No normal user is going to reverse engineer my product so it does nothing for him. And the ones that want to reverse engineer it are certainly not going to heed my license term. So what does that clause do for either me or my customers? It don't do nothing! It's utterly and completely useless.
Likewise the EULAs on nearly every web site I have ever seen. What good are most of their clauses? If a company wants to ban you from their forums for spamming or any other reason, they don't need a contract to do so.
Maybe you need some sort of clause making clear that their posting on your site gives you an implicit license to host it. Maybe. Because their simply posting it on a forum where it is obvious that posting it displays it publicly on the site would be considered implicit consent to host that contribution. Maybe instead you want to claim sole ownership over the person's posts. But why?
Oh I guess I was going to post another paragraph.
I like to see privacy notices that say whether they are tracking me and selling my info. But those are useless too, mostly. If they are more than a few lines long, your privacy is being raped for sure.
So the notice is again useless. Your only hope to preserve privacy is not to read their insidious and tricky privacy notices, but is to run every level of ad and tracking blocking software you can imagine, as well as posting only using pseudonyms through Tor.
That's the only way to preserve privacy these days, not by thinking that your privacy is protected by some nonsense called a privacy notice.
1. We don't keep any logs of ip addresses or computer fingerprints, so there is nothing of use to the feds or anyone else coming with a warrant.
2. Everything we store other than your password is shown on the web page publicly.
3. All warrant requests are responded to by telling them #1 and #2 - there's no logs to disclose.
Perfect implementation of privacy is mailinator.com. They are the perfection we should all try to attain.
Mailinator has no logs whatsoever, no archives and no backup. They don't even have anything stored on hard drive - all mail is stored in RAM and when new mail comes in, old mail is deleted. Mailinator gets served with subpoenas all the time and their response is always the same: "We don't have any logs to give you."
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