“Fair” End User License Agreement

Ed Foster has been an InfoWorld writer and editor for a couple of decades at least, and has been writing a GripeLine consumer advocate type column for the last 10 years. There’s a lot wrong in the PC business, and Foster is a good place to go if you really have been treated poorly by some vendor or marketer or merely want to get an idea of what is happening in computer industry consumer relations. (You can subscribe to GripeLine’s RSS feed here.)

Lately, Foster has been pushing FEULA, a so-called “Fair End User License Agreement” currently undergoing collaborative drafting at version .90.1. The idea is that vendors could adopt FEULA as sort of a seal of approval. Consumers, seeing that a vendor was using FEULA, could thereafter be confident that they were being dealt with some degree of fairness.

FEULA begins with the idea that most of the End User License Agreements in use today — mostly shrinkwrap or clickwrap garbage — are there anyhow, and FEULA is better for the consumer. (Foster is, after all, a consumer advocate.) It also assumes that clickwrap or shrinkwrap are always binding, something that I am not ready to concede. And it is conceivable that a consumer might be better off with some outrageous, unconscionable EULA than one a consumer advocate is attempting to draft as “fair”. However, the concept is certainly an interesting one, and lawyers interested in the field ought to at least take a look at what Foster is doing. And you can even comment or make suggestions, explaining, for example, what changes you would need before you would consider recommending a vendor client adopt it. (Or, if you are mostly on the other side, suggestions to make it more fair to users.)

Version .90.1 is obviously close to a final, but good comments might still lead to constructive change. Foster is doing good work in exposing run of the mill, albeit outrageous, horror stories. Maybe a well drafted FEULA could promote more fair dealing between computer vendor and computer consumer. But I’ll bet that even substantial adoption wouldn’t put Foster’s GripeLine out of business.