The Dangers of Click-Through Licensing
When you install a new piece of software either from the Internet or from a network drive within your organisation, you will have come across the click-through licensing concept. The click-through license is usually in the installer or set-up process when installing new software or even during software updates.
The license usually presents itself in a small box with the options of ‘agree’ and ‘disagree’ at the bottom. If you click disagree you are unable to continue with the install/use of the application.
What does this mean?
By clicking ‘agree’ you are legally saying that you will abide by the terms and conditions set out in the license agreement. If you haven’t read it, then that is your own risk as the license holds the same legal standing as any other license contract or documentation.
The term ‘click-through’ comes from the fact that you must ‘click-through’ the license before accessing the software. The agreement can also present itself as a ‘pop up’ box before you first use the software once it has been installed. If you disagree with the license agreement at this point then the software will remain installed on your machine, but you will be unable to use any of its features. This is basically a ‘take it or leave it’ contract.
The click through license may also present itself as a link to a webpage that contains the license agreement. This still counts as you agreeing to the license, as the agreement will say something along the lines of:
‘To continue to use this product you must agree to the license agreement/terms and conditions highlighted at……’
It is important to remember that if the license agreement or terms and conditions for using the software are lacking in anyway then the licensee can argue that the information was not readily available and therefore they had nothing to highlight what improper use would be. This is important for the end user should there be any non-compliance or legal challenges.
What’s in a Click-Through License?
Everything. The click-through license holds all license agreement information and terms and conditions for using the software you are installing. When installing new software or entering into a new agreement you should always read the license agreement/EULA/Terms of Use before installing the software to ensure that you are remaining compliant throughout the software’s use.
Click-Through licenses are the same. If installing a piece of software for the first time you should read the license agreement before clicking agree. As I’ll mention later, there are methods for you so you don’t need to read the license every time you go through the install process. It’s important to make sure that the SAM or License Manager keeps up-to-date with the license agreement as this may change. Any changes should be stated at the top or bottom of the click-through license with either a date or a license version number.
Issues with this type of license
Due to the ease in which you can by-pass a click-though license end users can legally agree to things that they do not understand or haven’t read. The nature in which the license presents itself proves difficult and an inconvenience to the end user. During installation isn’t an ideal time to provide the user with a legally binding document, as they just want to install the software, either for themselves or for one of their users. It may also be the case that the user installing the software has no licensing or SAM expertise or knowledge, which results in the license being completely dismissed.
So along with timing, there is also the fact that the license presents itself in a tiny box with small font. The majority of them are quite frankly unreadable, as they have been compressed into a tiny box that can only show the first few sentences. The end user will instantly dismiss the license agreement as just text that they haven’t the time or understanding for reading.
Finally, it’s all legal jargon that quite frankly isn’t digestible to the user. Only SAM/Licensing practitioners along with those with a legal background can realistically fully understand what is in a EULA or license agreement. A lot of the quick-through license agreements are quite lengthy too, which puts end users off. The license agreement should be summarised with the key legal aspects that an end user needs to know at the top of the license agreement. This way they have some understanding of what they are agreeing to.
Tips for Click-Through licensing:
- Take time out to read the content
- Helpdesk staff are likely to be installing the software, so have the SAM/Licensing Manager look through the EULA before giving the ‘ok’ for future installs
- It’s just another software license agreement. Treat it as you would other EULA’s or terms of use
- Be wary of accepting the conditions set out by the license when installing free software from the Internet
- Once you’ve read the license agreement, if you do disagree with its contents then don’t install the software without talking to the developer/vendor
- Ensure only those authorized to install software have the administrator rights to install the software
- Have a pre-approved software list. All of the EULA’s, Terms and Conditions of the approved software must be read and understood before the software is ‘approved’.
Finally, be careful!
We’ve all clicked ‘agree’ or ‘yes’ on a click through license both in our professional lives and in our private life. We have to, to be able to access software. There is no getting away from the click-through license aspect. Should you not read the contents that you are at risk of not adhering to the terms and conditions set out. It’s a similar set-up with the cloud-based licensing so it’s an important you read the contents!
Legally a click-through license is as powerful as a normal contract or EULA, so it shouldn’t be treated differently. Sure it takes time to read it, but would you rather spend 30 minutes or so reading the terms and conditions of the license, or click-through and run the risk of being non-compliant? Either take it, or leave it!
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- Tags: David Foxen · End-user license agreement · license · licensing · software licenses
I would be particularly careful of Open Source or Freeware products. It is common in the Click License to state that if the product is used for commercial purposes or by a company there’s a cost
Examples are anti virus or malware scanning tools.
The SAM function can help by establishing a White/Gray/Black list of products found in the company. New products go on the Gray list until their T&C have been reviewed. If a product is found to have terms in their click license not acceptable they are moved to black list.
This issue is becoming more and more of an issue with our SAM clients.
I think the key here is that there must be a centralised review of the terms (e.g. SAM team or IT installing the software). Users should be made aware of the licensing terms; something which does not happen in many current cases.
Grant
The risks of the click thru are why entire agreement clauses in commercially negotiated contracts are very important and need be be worded carefully. I’ve seen a vendor auditor use the audit clause in an eval to get into a company when the commercial team had negotiated it out of the main centralised contract.