Evan Yares has raised an interesting point about the insolvency clause in Autodesk’s End User License Agreement. Please read the whole thing, but the gist is that there’s a clause where if you get into financial difficulties, Autodesk will do its bit to help you out in times of trouble by taking away your software licenses.
This clause extends as far as making an arrangement with your creditors, which is a common enough phrase but can mean several things and isn’t defined within the agreement. So, if your cash flow is a bit tight and you have to ask your phone company for another month to pay your bill, you’ll be sure to stop using all your Autodesk software, won’t you? Never use it again, because otherwise you’ll be a thief.
OK, maybe that’s a bit extreme, but I’m sure it could be interpreted that way by an aggressive and/or inventive lawyer, and Autodesk doesn’t appear to be short of those. Who knows? Why would Autodesk put that kind of thing in its EULAs if there is no intention of ever using it?
That’s an interesting aside, but it’s not my main point. Autodesk EULAs have traditionally contained unreasonable, unconscionable and arguably unenforceable clauses, so there’s nothing particularly remarkable there. My main point relates to reading EULAs in general, not just Autodesk’s. As a general rule, should you do it?
Looking at the polls I’ve done on this subject, lots of you don’t read them. In fact, over two thirds of poll respondents either never read them, or rarely do so. It would be interesting to find the reasons behind that. Do you not have the time? Is it pointless because it’s all legal gobbledygook? Do you trust the software maker to be reasonable? Do you consider click-throughs to be unenforceable? Or are there other reasons? Please let me know. I may do another poll once I have a reasonable set of choices to offer up.
There’s an argument that can be made that you are actually better off not reading these “agreements”. According to this argument, if you don’t read it, how can you have agreed to it? There’s no meeting of the minds. Better still; get somebody outside your company to do the installation for you. That person has no authority to bind your company to anything, so no agreement exists.
Or does it? Is this a valid argument? Until there’s either well-established case law or unambiguous legislation, it’s anybody’s guess. Even when the answer is known, it’s highly likely that the answer will vary depending on your location. Even if the agreement states that it is based on California law, what if the local law establishes that no obligation exists that binds you to that agreement?
What’s the best thing to do? I honestly don’t know. You could do an R. Paul Waddington and make a public repudiation of any obligation to abide by Autodesk’s EULAs, and continue to use the software. You could do what I suspect a large number of people do, which is the same kind of repudiation, but a silent one. You could attempt to negotiate a modified EULA with the software vendor, but I don’t fancy your chances. You could stop using software with unreasonable EULAs, but what kind of choice is that? It may not be possible at all for your business. Finally, you could just put up and shut up, either agreeing unreservedly to accept whatever is in the EULA, or crossing your fingers in the hope that the software vendor will do the right thing.
What choice have you made, and why?
