More on ODA, Autodesk and click-through agreements

Evan Yares has provided more information on the incident I mentioned in my last post. Here it is:

It was years ago. My guess was that the person who did it was just trying to spider the website pages, for marketing research, and didn’t realize he got all the libraries too.

In any event, I said hey you did this, they said no we didn’t, I produced download logs, they said there was no agreement and even if there was we hereby cancel it, I said if you want to see our libraries I’ll send ’em to you no strings, they said no thanks, then I just let it drop. Of course, I’m paraphrasing.

I wasn’t going to get in a fight with Autodesk. Trying to trick them into joining the ODA would have been both futile and dumb. I’d been trying for years to get them to join (I was an optimist, once upon a time), and it caused no damage for Autodesk to be able to see the ODA libraries. There wasn’t anything in them that they didn’t know better than we did.

Don’t read too much into Autodesk’s belief in the enforceability of click-through agreements based on this incident. I knew the guy who downloaded the files, and knew that he didn’t have the authority to bind Autodesk to an ODA membership agreement (it would have taken at least a VP to do that.)

This is interesting for more than just the amusement factor; it raises a serious point about the enforceability of click-through agreements. In this case it was a web-based membership agreement, but I’m more interested in software license agreements.

In most cases, the person doing a software installation is unlikely to be a Vice President or higher. It’s quite possible that the installer doesn’t even work directly for the company that is supposedly agreeing to whatever terms may be hidden behind the “I Agree” button. In fact, that’s the situation I’m regularly faced with when I install software for a client. The client certainly doesn’t view the “agreement” and may not even know that it exists. The client hasn’t authorised me to negotiate a contract with anyone, only to get some software working. There’s no “meeting of the minds”. The software vendor may think that the client is bound up tight by the terms of the EULA; the client hasn’t agreed to anything and either doesn’t know the EULA exists or doesn’t consider it to have any validity.

Does it matter? Maybe not. It only really matters when one party or the other doesn’t do the right thing. Fortunately, I have honest clients and I’m confident that they will act in an ethical way on an ongoing basis. But will the software vendors do likewise? I don’t know.

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