March 08, 2001, 11:17 AM — WHAT ARE SOFTWARE publishers hoping to get out of the Uniform Computer Information Transactions Act (UCITA)? Judging by some of their shrink-wrap terms, it's a license to kill.
As we know, UCITA can cause plenty of problems just by validating the most common shrink-wrap terms, such as warranty disclaimers, restrictions on reverse engineering, and so on. Eagle-eyed readers, however, have spotted language in many EULAs (End User License Agreements) that appears tailor-made to take advantage of some of UCITA's worst provisions.
Foremost among the perils posed by UCITA is the "electronic self help" section that allows software publishers to equip their programs with remote disabling capabilities. A reader who purchased InstallShield 6 when it was released last year noticed it appeared self-help-ready: According to the product's EULA, "You grant to InstallShield the right to, with or without notice, monitor your Internet-accessible activities for the purpose of verifying [software] performance and/or your compliance with the terms hereof, including, but not limited to the remote monitoring and verification of your implementation, use, and duplication of the [software]." Shortly after I asked InstallShield about the purpose of this term, they revised the EULA and eliminated it.
Lest we forget that UCITA also specifically authorizes publishers to terminate any license without reason, another reader pointed out that the EULA for Cybernet Systems' Netmax reads, "Cybernet may terminate this License at any time by delivering notice to you, and you may terminate this License at any time by destroying or erasing all copies of the Software." A Cybernet representative said the company included this wording as a "fallback" to cover any usage it considers inappropriate but added that it's a clause the company has never used.
UCITA supporters have scoffed at the notion that publishers would use shrink-wrap licenses to prohibit public criticism of their products. Nonetheless, our friends at Network Associates seem prepared to do just that with their click-wrap license for VirusScan 5.15. "The customer shall not disclose the results of any benchmark test to any third party without Network Associates' prior written approval," reads one part of its EULA, immediately followed by: "The customer will not publish reviews of the product without prior consent from Network Associates." Network Associates declined to comment on why it includes these terms in the VirusScan license.
A term's appearance in a publisher's EULA does not guarantee that the company will enforce it. But terms you may think are delirious ravings of an out-of-control lawyer can be part of a carefully designed corporate strategy.