Ed Foster explains why the "what me worry" approach to EULAs just won't cut it:
Unfortunately, though, there's something else we have to take into account here: DRM. Whether you think the acronym stands for Digital Rights or Digital Restrictions Management, it's an everyday part of life now. What hoops will you need to jump through to reload your software applications if you have to replace your hard drive? Can you cut that tune you paid 99 cents for to another CD without the RIAA storm troopers breaking down your door? And, given the leaning of industry and government, it's likely to be all the more commonplace. Will the broadcast flag on the TV show you're watching permit you to fast-forward through the commercials? Or will the RFID chip in your car keys lock you out if you miss a monthly payment?
So what's the connection between DRM and sneakwrap terms? The common thread is that with both, customers don't really know what they're buying when they put their money down, or at least not without reading through multiple layers of fine print. And they might as well not bother to do that, because the deal can be changed retroactively by the seller as you go along. Hey, you have been granted certain rights, up until the time we decide to take them away from you, at which point you have no rights.
For the vendors, of course, DRM also means never having to go before to judge to argue that their unconscionable EULA terms should be enforced, because the DRM is judge, jury and courtroom, all rolled into one. I don't think it's just a coincidence that the terms readers found most objectionable in last week's poll were from an adware company that is suing another adware company over its software being automatically removed by the competitor's software. The case is really one of EULA vs. EULA, with both companies claiming virtual ownership of your computer because you supposedly agreed to terms allowing them to do so. And, as spyware expert Ben Edelman reported from his research, it's quite possible for both programs to load through security holes without users having the chance to know it's happening, much less "click OK" to the terms signing over control of their computer.
This stuff is more than most people want to pay attention to - which is why the RIAA feels so free to just toss lawsuits around. I really, really don't like where this is headed, and I give a lot of credit to Ed for continuing to stay focused on these issues.