Cracking the EULA’s Shell

Wired Magazine has posted an article by Jennifer Granick regarding a few California cases (state and federal) where the judge has decided that the terms of the EULA aren’t as ironclad as they have been for the last 12 years.  Generally speaking, the state court ruled that the terms of an EULA are generally procedurally unconscionable, meaning that they’re going to be seen as contracts of adhesion… and the federal court ruled that vendor’s can’t change the terms of an agreement without providing the customer with notice of the change (ie: simple continued use of a service doesn’t automatically mean you’re bound to the change).  Jennifer does a great job of explaining the logic.

Given the title of the article, Courts Turn Against Abusive Clickwrap Contracts, it would appear that Wired is attempting to sensationalize just a little.  The truth is that the courts’ rulings aren’t that surprising (even if they came from California, a state known to be a little “fringe” about their opinions).  The courts are applying some general contract priciples to EULA’s… which vendors have been lucky enough to avoid for the last decade.  It’s about time.