Software means licenses. We’re talking about that a lot here lately. And it seems the topic is getting some much needed attention: here’s an intro to a book called The End Of Ownership, which grapples some of the legal issues that come up with licensing.
Perzanowski and Schultz have come to the conclusion that companies have "created private regulatory schemes that impose all manner of obligations and restrictions … effectively rewriting the balance between creators and the public that our laws are meant to maintain." As the pair explain, on a near-daily basis we are forced into agreements that we don't understand, don't have time to read, and that are designed to be dense. Since the first EULAs were developed in the early 1980s by IBM, they have become a commonplace and refined tradecraft. Courts have often recognized them as binding "contracts," but they aren't contracts in any real sense of the word, which has traditionally assumed negotiation on a level playing field and a nuanced understanding of the terms from both parties.
Of course, terms of services and license agreements are contracts. The assumption that contracts require a nuanced understanding of the terms would be to say most everyday purchasing contracts are invalid.
The problem we have is that traditional institutions we have developed to deal with information asymmetries don’t work in this environment.›