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Created on Friday, 07 November 2008 23:11

Last Updated on Friday, 28 December 2012 18:38

Questionable Software Licenses

Anybody, who has installed a program, knows the phenomenon that the computer will only install e.g. the game or driver software if terms of usage have been acknowledged.But are they valid?

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Almost every computer software has its “EULA” (End User License Agreement). They tell the purchaser what he may or may not do with the program. Typically, the end user will only take note of these agreements after having clicked to accept them. He will then read something like “This end user license constitutes a legal contract between you and e.g. the Microsoft Corporation (excerpt of the EULA for Microsoft’s Internet Explorer). But is that correct? And did a contract come into force? If so, are you bound by to it – with all its stipulations?

A general principle in German civil law is the primary rule that “contracts are to be fulfilled”. In other words, if you conclude a contract, you have to fulfill your part of the bargain just as much as the other person in the deal has to fulfill his obligations. Only in exceptional cases, can you be released from the contract. Different rules do not apply to contracts for computer software. But the situation is somewhat different to contracts negotiated between contractual partners. Just as contractual terms are seldom discussed in shops, so are the terms of usage for software seldom negotiated. The consumer is stuck with a take-it-or-leave-it, boilerplate contract of adhesion. This situation is typical for contracts with standard terms/ standard contracts. German lawyers understand “standard contracts” as forms where you only fill in the customer’s name and both sign the contract. A typical example for this would be contracts bought in a stationary shop. The opposite are individual contracts. The parties of the contract draft the rules by themselves.

These standard-terms or standard contracts are subject to the rules on standard terms (§§305 – 310 BGB). In general, these rules say that standard stipulations must be understandably worded for the average customer. The user of standard terms must clearly point out his standard terms. They may not contain surprising clauses. If they do not comply with the legal rules, then they are invalid.

There are two typical ways to “accept” the user license: either by opening a sealed package (shrink wrap), whereas the shrink wrap seal says that you are accepting the terms of usage by breaking the seal. The other practice is by installing after accepting the general terms and condition by clicking on an interactive acceptance button. Most all lawyers consider such as not concluding a contract. You are agreeing to contractual terms subsequent to the contract’s conclusion. However, even if there is a general consensus among lawyers on this point, it might not be a good idea to blindly trust in this belief In all circumstances since opinion. a court might still decide differently by relying on the special situation of a specific case or common practice.




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