A Eulogy for the EULA

Use of this product requires that you have read and agree to abide by the terms of use specificed in the end user licensing agreement

Walking home tonight something occurred to me that is strangely disarming and significant, primarily in its simplicity and “oh yeah…” quotient.

I’m no lawyer, but I’d be damned if any software EULA would actually hold up in court anymore. Any EULA for that matter. I mean, think about it. If you install any amount of software, every time you open up a DMG or run an install.exe, you will inevitably click through some lengthy piece of legalese that invariably concludes with you pressing a button that reads “I agree”.

And we all know how blissfully ignorant you are of whatever it is you just agreed to.

Or how about that shrinkwrap EULA? Now there’s a classic.

I mean, look at the Sony Root Kit fiasco. No doubt somewhere on the packaging or some embedded app that launched on CD insertion warned you: “Hey read this, coz we’re telling you explicitly that we’re taking over your system and spying on you. If you agree to these terms by [clicking a button | inserting this CD], hey, well, don’t say later that we didn’t warn you. We disclaim all liability.

“And we’ve got lawyers.

“Lots of ’em.

“And they write this shit all day long. So don’t even think of questioning whether this is legit or not. We say it is. So of course, it is.”

So anyway, this thing, it sprung on me: Holy crap, EULAs are totally against humanity! Yeah, I mean, I have like a million ideas a second so it’s not like I went looking for yet another salvo for my new war against intellectual property, copyright and anti-human laws — no, this idea just came to me clear out of the evening sky (or the three doses of caffeine I consumed today… damnit).

Alright alright, back to this realization. So I want to do something that will have absolutely no effect on anything, but at least shares the warmth of the flame burnin’ under my kettle. I want to call for a moratorium on EULAs. Yeah, you heard me. Uh huh, that’s right. It’s time we pulled the plug on irresponsiblity-perpetuators. It’s about time that I was able to use a tool, play with a toy, implement an idea without the originator of said thing having to shove off all ownership or responsibility for their contribution to the world for fear that I’ll turn around and sue them over something absurd, like becoming depressed because my car is the wrong shade of lemon-chiffon. Or something else. Whatever.

And hey, you litigious folks who won’t take responsibility for yourselves, who think the world owes you something because you woke up this morning…! Sorry, the world doesn’t owe you shit either. Just because it used to be easier for the big corporations to get away with publicly doing bad stuff and hence had to invent EULAs to protect their asses doesn’t mean that we’re off the gold standard. …You get taken advantage of, get disappointed, lose a limb because of your own actions, because of choices you made (or keep making!). If we’re going dump the producer’s ability to disclaim all responsibility for the things they put out into the wild then we as the receivers of their output must make up the difference with self-reliance and self-policing and taking care of ourselves. Hey hey, no one else is going to do it. Even if that chainsaw manufacturer did screw up, you’re still down 50% in appendages are you not? So yeah, don’t lop off your arm in the first place, they include the manuals for a reason!

Whatever whatever, point being, disclaiming responsibility is insulting, it’s cold and it’s not inline with what our parents taught us. Yeah, that vazz? I broke it. Twice!

So here’s a proposal (I’m full of ’em). Just like how there’s fair use in copyright, there ought be reasonable use in products so that I can put out a piece of software or hardware or some inflamatory idea and be generally protected against the possible ineptitude of eventual receivers. At the same time, as a receiver of other people’s output myself, I need those producers to first feel pride and ownership of their work and a commitment to me as a person to vouch for their work; and hey, if they eff up big time, to be culpable for any malicious or otherwise avoidable offenses that they commit. That’s just fair, right?

Banning EULAs as meaningless and unenforceable is one way to raise this issue. Is it a pratical, realistic solution? Who knows! But now you’re thinking about it, right?

Author: Chris Messina

Head of West Coast Business Development at Republic. Ever-curious product designer and technologist. Hashtag inventor. Previously: Molly.com (YC W18), Uber, Google.

6 thoughts on “A Eulogy for the EULA”

  1. EULAs follow a long tradition of unreadable lawyer-speak appended to products and publications. It’s a ritual, really, not a form of communication. At Apple I waged a campaign to get the lawyers to let the technical writers re-write the legalese. Needless to say, I lost.

  2. I think this is something we have to thank the American law system for. In a country where a company can get sued for serving too hot coffee or someone slipping on a wet floor, it’s to be excepted that any product vendor is gonna try to cover their *ss as much as possible. But I agree, EULAs are way too long and incomprehensible, hence never read anyway.
    Not sure they should go away completely, though. Sometimes, for beta products or ‘free’ services, there should be some executive summary kind of disclaimer:
    * we might have the occasional downtime. don’t use us to run a nuclear plant.
    * we back up our data daily, but we might lose X hours of work if some really nasty shit happens.
    * this software changes your network settings. We tested it a lot, but it might screw up anyway
    * take backups. yourself. often.
    * we might be out of business in a year. that’s worse for us than it is for you.
    * you are installing a free piece of software to exchange piratized pr0n, we infer that you like raunchy pop-ups for casinos and blue pills
    * you just bought these pills on-line, for christ sake. if something falls off, you’re on your own.

  3. There is only one reason for lawyer-speak. Lawyers have no special talents or knowledge , so they created a language that no-one can understand.This gives them a monopoly on all matters legal and keeps them in work. They don’t deserve it and they have never earned it .Maybe this is why so many politicians are former lawyers ! I think the label of “lawyer” should be changed to “Professional Bullshit Artist” .Rather than to defend the innocent,I think their true agenda is to defend themselves against being exposed for what they truely are ,which is not much ,really……..

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