INTRODUCTION
“A license granting the users the rights to use a service is known as an end-user license agreement.” [1] It describes the limits and provides information on how the software program can be utilized. For instance, the majority of end-user license agreements forbid sharing or redistributing software in any way that benefits the purchaser instead than the original author. You normally need to read and accept a user license before you would download and install a software application. The end-user license agreement normally needs to be digitally signed whenever the user launches the software installer for the installation to be successful. The consumer digitally accepts the contract conditions by clicking “I agree” through an end-user license agreement, which is often used for software that is sold just once. The intellectual property of the software provider is safeguarded by the end-user license agreement.
For example, a company that develops new software and makes money by allowing others to use that software but being within the parameters you have made. The licensor can prevent the licensee from altering the product or creating more copies thereof for free distribution in this manner. If a software developer does not include an end-user license agreement, the content is shared freely and is equivalent to that of an open-source utility. Further, all upcoming updates to the software must also be free.
In the United States, some owners of copyrights use end-user license agreements to either extend their control over the work into areas where copyright protection is illegal or to get around limitations imposed on their copyrights by the relevant copyright law (such as limitations mentioned under sections 107 to 122 of the U.S. Copyrights Act such as “attempting to charge for, regulate or prevent private performances of a work beyond a certain number of performances or beyond a certain period of time”). In essence, these EULAs are attempting to gain contractual control over activities that copyright law forbids.
In India, the EULA must state that both the licensor and the end-user would be obligated by Indian law and identify the court that will have the power of judicial review in the event of disagreement or infringement. The agreement should also state whether the licensor prefers any other dispute resolution procedures, to which the user consents. The allure of this type of contract law is that it grants the ability to even select the law that would apply to a contract. Unfortunately, end users rarely have this chance. By explicitly stating that both parties to the EULA agreement are bound by Indian rules and regulations, an Indian software company can maximize its benefit and ease. Additionally, a civil court has authority over the judicial court that may be contacted in the case of a dispute.
ADDITIONAL TERMS FOR AN END-USER LICENSE AGREEMENT
There are several other names of an end-user license agreement, including:
- EULA
- Licensed application end-user agreement
- Licensing agreement
- Click-wrap license
- Shrink-wrap license
- Browse-wrap agreement
COMPONENTS OF AN END-USER LICENSING AGREEMENT
Although a licensing agreement will differ from one item to another, it should always have some fundamental elements, such as:
Warranties Disclaimer: Notifies the licensee that the program is being given “as is” and that the licensor is not liable for any issues that may arise from using it.
Acknowledgment of infringement: Proclaims that the licensee is responsible for any copyright violations.
Governing or regulating law: This lists the state laws that take precedence in the event of a dispute.
Licensor: Name, location, and any pertinent contact details for the individual or company that created the software or the program.
Licensee: Name and address of the user seeking access to the software, along with any other pertinent contact information.
License Issuance: Any restrictions on the licensee’s rights granted by the license.
Exclusions from Liability: Indicates if the licensor is accountable for injuries caused by using the product.
Software: Title of the licensed software program.
Assistance and Maintenance: This indicates whether the app will be supported and maintained and whether it can be done so via call, mail, or in-person. It also specifies the frequency and timing of maintenance.
Start Date: This specifies when the end user becomes subject to the provisions, terms, and conditions. They might be obligated to the terms, for instance, when they download something or when they receive a package.
User restrictions: This restricts how the application may be legally used by the end user.
Site Licenses: This denotes if a user may install the program on multiple devices.
Termination: Whatsoever breaches the arrangement, permits the owner to terminate the agreement.
WHAT ARE BROWSE-WRAP, SHRINK-WRAP, AND CLICK-WRAP LICENSES?
When a software license is packaged inside another piece of software and is not available to the user until after purchase, it is referred to as a “shrink-wrap” license. The licensing agreement is often printed on paper and included with boxed software. The license may also be displayed to the customer on-screen while the software is being installed; in this situation, it is frequently referred to as a “click-wrap” license. Such licenses have occasionally been challenged in court because of the customer’s incapacity to read the licensing agreement before buying the product.[2]
The browse-wrap is the oldest and most common type of agreement since it was clear and included all necessary details. Browse wrap agreements are displayed at the bottom of any such webpage, and using of the application by the consumer is taken as acceptance. These agreements are frequently seen on internet sites and also in a few mobile apps and software programs. They are also accessible via a hyperlink. While browse-wrap contracts are quite different from click-wrap contracts and shrink-wrap agreements in that they do not compel the customer to accept the contract; rather, approval is presumed when the customer uses the website, click-wrap agreements, and shrink wrap agreements are unilateral and presented as set contracts.
“Websites that want to make it necessary for users to accept their terms and conditions typically utilize agreements like click wrap and browse wrap.”[3] The way they dictate it is the only distinction between the two. While click wrap forces customers to click the “I agree” button, browse-wrap does not.
LEGAL ISSUES WITH END USER AGREEMENTS
An end user agreement is not just the same as a warranty or a receipt for a transaction. When a customer accepts the conditions outlined in a EULA, they are actually accepting the license terms under which the program may be used. The consumer is then free to continue well with full installation and use of the product. Consumers should never think that they have bought the original software code that runs a program since they are just agreeing to the owner’s rules for using the software; EULAs do not protect consumers.
CONCLUSION
Currently, Section 58 of the Indian Copyright Act 1957 might not be sufficient to strengthen the application of law enforcement because the practicality of implementation made available is mostly unnecessary. Most frequently overlooked is the fact that accepting the EULA’s stated terms means that the client is consenting to buy or rent a license from the firm or developer to use the program. The EULA must be written so that it protects the user’s interests, notably shielding the Licensor from any type of intellectual property rights violation because it permits the user to utilize the Intellectual Property of a software developer.
Because EULAs are sometimes lengthy and written in technical legalese, it might be challenging for the common user to offer their informed permission. Many users might not offer informed permission of the corporation structures the EULA in such a way that purposefully discourages consumers from reading them and uses complex legal terminology that is difficult to comprehend. Anybody who accesses the software publisher’s application will be informed by a strong and comprehensive EULA that the publisher owns all the rights to the product and that the user’s rights are limited to what the publisher permits. It is recommended to work with an IPR attorney to write the EULA rather than using sample contracts that do not address these crucial components of a software’s and publisher’s rights.
Author(s) Name: Parth Mangal (Institute of Law, Nirma University, Ahmedabad)
References:
[1] Linfo.org. 2004. EULA definition by The Linux Information Project. [online] Available at: <http://www.linfo.org/eula.html> [Accessed 18 July 2022].
[2] Contractscounsel.com. n.d. End User License Agreement: Everything You Need to Know. [online] Available at: <https://www.contractscounsel.com/t/us/end-user-license-agreement> [Accessed 18 July 2022].
[3] Pournelle, Jerry (June 1983). “Zenith Z-100, Epson QX-10, Software Licensing, and the Software Piracy Problem”.
