Killing the Risks of Click Licenses

No matter what you may wish to say about software publishers (and their legions of lawyers), they are definitely not stupid. Click-wrap licenses are an excellent case in point. Essentially this scam (sorry… I couldn’t think of a more applicable word) entraps your enterprise in a product license agreement you have never seen. And…conveniently enough, the same software industry lawyers have made sure to prove in court that these nearly invisible agreements are 100% legally binding.

In most cases, a click-wrap license appears via the Internet where ANYONE using your enterprise systems can lock you into an unexpected license (or other) agreement by clicking on a check box, NOT clicking on a check box, or even simply by accessing a given URL. They also very frequently appear when technicians “update” a working application or even when applying patches to existing defective products. We’ve all done this: stepping through a seemingly endless install process by clicking through the dozens of default settings.

Ever done a PDF application upgrade and ended up with an entirely new anti-virus? Then you know what a pain in the neck click-wrap is.

You will also discover that a majority of click-wrap licenses are (intentionally) designed to make it difficult – even nearly impossible – to read or print. Frequently, that tiny little two-inch square box on your screen hides a 15 page single-spaced license agreement. If the only way to document all this licensing content is to scroll through the text box and print it out 3 lines at a time using Print Screen, you should recognize that you have a high risk license on your hands.

In another very costly insult added to the click-wrap experience, over two-thirds of major click-wrap licenses intentionally supersede your carefully negotiated previous licenses with a seriously onerous new agreement.

A final, very popular, version of the click-wrap agreement is that the license clause may also permit the software publisher to “…modify the terms of this agreement at any time…”

NO! Do NOT allow ANY software industry player to include this clause in ANY license. If you do, you will pay a heavy price – literally.

For the large organization, unauthorized click-wrap licenses can represent tens of millions of dollars in invisible, unexpected, and unbudgeted license, support, and/or maintenance fees, not to mention the long term risks represented by the undocumented nature of this type of agreement. For the small enterprise, this perfectly legal game could become a crippling drain on the meager bottom line.

 

Resolution? From this point forward ensure that ALL software-related agreements contain a very clear statement that… “This license may not be superseded by any future agreement without direct written approval by both parties…” Get your lawyer to write this so it follows all the rules. And don’t forget to eliminate that “…modification…” clause mentioned above.

In terms of existing licenses, you are probably not going to be “allowed” to modify the agreement to add this clause. Here’s what you need to do: Make it very clear to any software industry player who wants to play this game that you will NOT participate, and do it in writing. Ensure that, every time you interact with this product supplier, you make it clear that you are willing to remove their products from your systems and replace them with a product developed by a software publisher that is honest and above-board in their licensing frameworks. If the given product developer wants to continue the game, displace their products.

Is your organization part of the FITARA or MEGABYTE Act initiatives in the U.S. Government? We've seen the end results of click-wrap style licensing in multiple government settings and a little proactive license work such as this can drastically reduce the IT/software spend. This content applies to you as well.

Is there more depth to this topic? Absolutely! However, I’m writing a brief (?) blog entry, not teaching a Software Asset Management (SAM) or Technology Asset Management (ITAM) course in this venue. If you want the courses, check out the Institute web site. Our professional development programs cover significantly more competencies than anything else available on the planet.