We recently came across Read Write Web’s coverage of Google’s new Chrome Browser.When we saw their article this morning about the controversy over Chrome’s End User License Agreement (EULA), including their call for a trained legal eye to have a second look at it, we couldn’t resist.  After all, I did say in my previous Transferring Copyrights post that I’d write about Open Source Software soon.

As the Read Write authors noted, following the initial public uproar over the EULA terms, Google decided to make some changes, including to the clause allowing Google to freely reuse any of the content that users send through Chrome.Google’s explanation for that language – that it was “mistakenly included as a part of a ‘boiler plate’ license typical for all Google products” – is laughable if not frightening.Does a company like Google want us to believe that they couldn’t hire lawyers competent enough to thoroughly review a software license distributed to millions, if not billions of people around the world?Or did their lawyers really not read it (that’d be the frightening scenario)?Beyond the uproar, the EULA is going to apply to all of Chrome’s users around the world who choose to download the software over the coming weeks and months.If only for that reason, it’s worth taking a look at closely.

I’ll go through the EULA, touching on some of the legal highlights that weren’t already covered in Read Write’s article.First off, I should point out that the EULA is technically a license and not a contract.These two terms are often incorrectly used as synonyms. Licenses are unlike contracts in that they are revocable at any time by the licensor.For example, your ticket to tonight’s game in town is a license for you to show up at the game and sit in the seat printed on your ticket.But if you become the dreaded unruly fan, then the licensor (owner of the stadium) can revoke the license and throws you out.There’s no offer and acceptance contract involved.The same this goes with the Chrome EULA.If you break its terms, then Google can freely revoke your license and take the software back from you, no questions asked.Anyway, let’s get to some of the clauses that jumped out to us.

2.2 You can accept the Terms by:

…

(B) by actually using the Services. In this case, you understand and agree that Google will treat your use of the Services as acceptance of the Terms from that point onwards.

This hardly seems fair, and it’s unrealistic.Imagine you use Chrome on someone else’s computer.Under this clause, Google will automatically treat your use as acceptance of the Terms of the EULA, even though you might not know the terms exists, where to find them, or even what they mean.Google is trying to protect itself here, but it would be hard to imagine Google trying to enforce this term.

4.3 … You do not need to specifically inform Google when you stop using the Services.

Again, maybe Google is trying to cover itself here, but is this language necessary?

5.1 You agree to use the Services only for purposes that are permitted by (a) the Terms and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries).

This is one of my favorites.I’ll call this the “throwing a stick at a dragon” clause (the dragon being China).Clause 9.2 can be included in this group.Google knows that its code is going to be copied, reverse engineered, and run through every other process of intellectual property method by Chinese software pirates, but Google put this in the license anyway.(I mention China because it’s notorious for refusing to abide by IP laws).

9.1 Google gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided to you by Google as part of the Services as provided to you by Google (referred to as the “Software” below). This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by Google, in the manner permitted by the Terms.

After 8.6 sections, Google finally explains here what the user is getting.It’s typical of language used in lots of OSS licenses.It’s actually very clear in indicating that the user is only getting a license to use software but not profit from it.

18.1 Google may make changes to the Universal Terms or Additional Terms from time to time. When these changes are made, Google will make a new copy of the Universal Terms available at http://www.google.com/accounts/TOS?hl=en and any new Additional Terms will be made available to you from within, or through, the affected Services.

18.2 You understand and agree that if you use the Services after the date on which the Universal Terms or Additional Terms have changed, Google will treat your use as acceptance of the updated Universal Terms or Additional Terms.

These clauses are a lot like 2.2 and again seem to be unfair to users. Google can make changes whenever and however it sees fit, and, as long as you keep using the Chrome, Google will treat you as if you accept their changes. Most likely those who downloaded Chrome prior to Google’s most recent changes would be happy with this clause (after all, they did create quite an uproar), but what if the changes were the other way around?

19.7 The Terms, and your relationship with Google under the Terms, shall be governed by the laws of the State of California without regard to its conflict of laws provisions. You and Google agree to submit to the exclusive jurisdiction of the courts located within the county of Santa Clara, California to resolve any legal matter arising from the Terms. Notwithstanding this, you agree that Google shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.

This is a standard “boilerplate” dispute resolution clause, where the drafter is essentially saying that if any dispute comes up, we have to solve it in my backyard unless I want to come and solve it in yours.But it still strikes me as odd that, in this day and age, and with users of Chrome all over the world, anyone would agree to this if they had a choice.Again, though, it’s a software license where the user can’t negotiate the terms.

Tags: copyright, google chrome, open source software, oss

This entry was posted on Friday, December 12th, 2008 at 4:45 pm and is filed under Copyrights, Intellectual Property. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.