So the past few days have seen some compartmentalized drama regarding Google’s Chrome EULA and the damned GoogleUpdate.exe. Which got me to think about other software’s EULAs and what they say.
Skype’s EULA, for example, is relatively innocous, until you get to the part about its privacy policy, where it states “Your information may be stored and processed in any country in which Skype and the Skype group maintain facilities, including outside of the EU. In this regard, or for purposes of sharing or disclosing data in accordance with this article 4, Skype reserves the right to transfer information outside of your country. By using Skype software, Skype’s websites or Skype products you consent to any such transfer of information outside of your country. … .” If you don’t like that, well, Skype has an answer for you: “If you would like to exercise your right to view, correct, complete or remove your personal data, please contact Skype at delete@skype.com. Within a reasonable period of time and upon verification of your identity and to the extent your request is legitimate, Skype will fulfil your request, provided Skype will not act contrary to applicable legislation by fulfilling your request.” It’s an interesting clause, as elsewhere, in the EULA, it says “If You object to Your information being used in the way set out in the Privacy Policy then please do not use the Skype Services.”
In any event, pretty typical. So it raises the question, how enforceable are these EULAs? Well, in Davidson & Associates v. Jung, 422 F.3d 630 (8th Cir. 2005), the Eighth Circuit affirmed the District Court’s enforcement of a EULA involving reverse engineering of Blizzard’s games and Battle.net. In XPEL Technologies v. Maryland Performance Works, No. SA-05-CA-0593-X, 2006 U.S. Dist. LEXIS 47158 (W.D. Tex. 2006), the Western DIstrict of Texas enforced a forum-selection clause found in the EULA. However, there is another line of cases, involving “shrink-wrap” licenses, where the EULA is not something to which you show some sort of assent by clicking, but rather you show assent when you rip open the shrink-wrap around your media. For example, in Vault v. Quaid Software, 847 F.2d 255 (5th Cir. 2005) (“the restriction in Vault’s license agreement against decompilation or disassembly is unenforceable.”). Careful, though: Davidson & Associates, which I cited above, is very quick to point out that the DMCA has scuttled a lot of one’s ability to go in and do a bit of tinkering. And the Eastern District of California has recently found certain EULAs to be enforceable. See, for example, Meridian Project Systems v. Hardin Construction, 426 F. Supp. 2d 1101 (E.D. Cal. 2006).
