You Don’t Own Any Software

Honestly. You don’t own any software at all.

Even though one day you may have walked into a store like Staples and bought a boxed copy of Microsoft Office or Adobe Photoshop, all you purchased was a disk.

What’s on that disk does not belong to you.

Instead, the real value of what you purchased is a mere limited-use agreement with a software publisher like Adobe or Microsoft.

That’s it. The software still belongs to Adobe or Microsoft. And, if they tell you to stop using their software, you have to stop using it.

It’s a funny world, eh?

You buy a car, you own it.

You buy a loaf of bread, you own it.

You buy a house, you own it.

You buy an $800 software product: you don’t own anything.

Well, if you were lucky you received a printed manual.

That’s the reality of the EULA, or End User License Agreement, that governs pretty much every piece of commercial software in existence.

Even more odd is the fact that you generally aren’t even presented with the EULA until after you’ve bought the software. Yet you can’t use the software until you’ve formally agreed to the EULA.

In some cases, just opening the box is a form of legal agreement. In others you are presented with the agreement just prior to the software installing and must agree to it by clicking a button. If you don’t agree, the software won’t install.

In legalese, this form of agreement is called a contract of adhesion. It’s presented on a “take it or leave it” basis and gives you, the prospective licensee, no opportunity to negotiate.

This form of agreement is common in other situations, like when you buy a ticket at a parking garage.

There is an out, though, if you find reason to disagree with the EULA. Many agreements suggest you return the software to the retailer from which you bought it within a certain period of time for a refund or credit.

But therein lies the catch 22: most retailers won’t accept opened software products for refund or credit.

Fortunately, EULAs are generally standard, so you can be relatively certain of the terms to which you’re agreeing when you initially pay to license a product.

Like, most EULAs specify the number of computers you can install the software on and how many people can use it.

And many indicate that it’s prohibited for you to use the software beyond the tasks specified in the user manual.

All EULAs contain a provision that exempts the publisher from responsibility for any mishap that may result from your use of the software, even if the publisher was aware of a flaw in the product.

Take this passage from Microsoft’s license agreement for Windows 7 Professional: “You can recover from Microsoft and its suppliers only direct damages up to the amount you paid for the software.”

Which is to say, no matter what goes wrong with Windows 7, you can only get back what you paid for the software, no matter the value of the data you may have lost as a result of using it.

But if you read a bit further in the agreement, this exclusion applies even if, “Microsoft knew or should have known about the possibility of the damages.”

Imagine that clause in the warranty of a car you just bought.

But don’t knock Microsoft for that disconcerting condition of use, it’s standard fare among software license agreements.

In fact, give the company some credit for stating it so clearly in plain English. Most other publishers obfuscate the point in dense legalese.

Clearly, as standardized as the EULA has become as a means by which software publishers license their intellectual properties to folks like you and I, it’s open to some challenge.

Yet the EULA is very rarely challenged, and has only been challenged in some very specific cases.

Which makes a legal battle currently raging between Apple and a little Florida technology company called Psystar particularly interesting.

Apple’s EULA for the Mac OS X operating system limits its installation to only “Apple-branded” hardware products.

As with most EULAs, it also explicitly forbids reverse-engineering the software.

Psystar has broken both conditions.

The company has developed a software tool called Rebel that cracks the Mac OS wide open, enabling its installation on any generic piece of PC hardware.

What’s more, they’re selling these hacked Macs online for discount prices at a steady clip.

Of course, Apple is suing them.

In classic David vs. Goliath fashion, Psystar is fighting back.

The tiny company that is run by two brothers recently filed an antitrust suit against Apple.

What’s remarkable about Psystar’s counterattack, though, isn’t the unlevel playing field.

Instead, it’s the fact that many observers consider this case the first true test of the EULA in general.

If Apple loses, the software industry as a whole will likely need to alter the way it licenses the use of its products and protects itself from damages as a result of that use.

The outcome may just be that, the next time you go out and buy some software, you might actually get what you paid for. And it might be of a better quality than what we’ve become accustomed to since publishers will have more at stake.

Originally published in the Yukon News on Friday, November 13, 2009.