The License is the Product?

In a comment on Ben Edelman’s devasting critique of the Gator EULA, Ed Felten notes, reprising his own earlier suggestion, “I would love to see a ‘EULA doghouse’ site that listed products with excessive EULAs, or that rated products by the content of their EULAs. At the very least, EULA evaluation could become standard procedure for people writing reviews of software products. Unfortunately, there hasn’t been much progress on this front.” Perhaps inadvertently, the suggestion plays right into the hands of the licensing lawyers who pushed so hard for proposed Article 2B of the UCC, still alive and well as UCITA in Maryland and Virginia and in licenses governed by Maryland and Virginia law. Part of the rhetorical campaign supporting UCITA was the argument that “the license is the product,” so licenses should be presumptively lawful and enforceable, and consumers should sort them out in the marketplace. Efforts to promote the visibility of abusive license terms shouldn’t take the place of efforts in courts and legislatures to limit their reach. The two tactics have to go hand in hand; they aren’t really alternatives to one another.