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Gopika Vaidya
'Read the fine print before you sign on the dotted line.' This common sense mantra seems to have lost significance when it comes to the Internet. How many times have you actually read the agreements before downloading software? It's tempting to simply click 'I Agree' to speed up installation of the thousands of software programmes available online and through offline packages.
The software license agreement is a long piece of documentation (the one for Yahoo Messenger is 7,219 words, while Rediff Bol has 1,010 words) that includes information on all possible areas and implications of downloading the software, its fees, licensed uses and restrictions, support and software updates, limitation of liability, member liability, rules and regulations.
Henry Beck, an attorney whose firm represents Microsoft, is quoted in this Wired article as saying that such contracts are "like adhesive tape, it sticks to you, and you don't have any choice." The article also discusses the nature of many Web-based user agreements.
So when you click that button, what exactly are you promising?
"The license provides details on appropriate use of the software and restrictions on how it can be copied, modified, and distributed," says Sanjeev, a Mumbai-based lawyer, "When a person or institution buys a digital product, the buyer is usually obliged to enter into a contract with the vendor. This type of contract, called a 'standard form agreement', is drafted entirely by the vendor without consultation or negotiation with the buyer."
As a result, there are several ways in which software can be licensed. The generally accepted forms of copyrighted software are 'shrink-wrap' license in retail transactions and 'click-wrap' or 'web-wrap' license in online transactions. When a user breaks open the cellophane packaging on a box containing software or clicks the mouse after loading a programme, he has to consent to a contract agreeing not to copy or lend it.
However, according to Sanjeev, the use of standard form agreements governing the use of digital products is creating conflicts between the prohibitions embedded in the contracts and the uses permitted by copyright law. This has been the case mostly in the US, where a strong body of cyber law has been developed and is used to decide an increasing number of policies.
Most cases consider the ways in which the user of the software has been informed of the license. Courts refer to these as shrink-wrap, click-wrap and browse-wrap licenses. A shrink-wrap license applies to software packaged in a box, enclosed within 'shrink-wrap' packaging, and sold off the shelf. The terms of the license are not displayed on the outside. Rather, a statement on the box claims that the buyer will be subject to the provisions of a license, the full contents of which are contained in the user's manual or in the software itself. As a result, users cannot view the license until they buy the software.
The second type of license, click-wrap, is used when someone downloads software from a Web site. "An onscreen message requires users to manifest their assent by clicking on an icon. Until then, the product cannot be obtained or used," says Sanjeev, quoting a famous case, Specht v. Netscape Communications Corp, which took place in New York last year.
The browse-wrap license is also used when users download software over the Internet. Here, they are advised of the license and given the option of clicking a link that takes them to a separate page where the license agreement is displayed. The major difference between this and the click-wrap license is that here users are not required to view the agreement or agree to its terms.
Courts in the US have stressed the manner in which the license agreement is conveyed to users. Vendors who want to create a binding contract over the Internet must consider how to demonstrate that users have been made aware of the contract itself. Merely providing a notice somewhere on the site containing the terms wouldn't be sufficient. Also, very often Internet contracts are presented alongside, or couched within marketing and promotional materials. This mixing of information makes it even more difficult for users to realise what they are promising when downloading software.
In India, most sites use the framework of US-based software license agreements, modifying them slightly to suit Indian laws. "We use the basic US agreement, but our lawyers tweak it accordingly," says Tulika, who works with a global portal with an Indian presence.
With the vague and unclear cyber laws in the Information Technology Act, software license agreements have never been the subject of a case, says Sanjeev. He does believe, however, that as cyber law in the country develops, there could be cases of this kind.
So the next time you blindly click on that 'I Agree' button, stop and read it through. A wrong click might just land you in court.
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