Do You Know What's In Your EULA? Adobe and Other Vendors Don't!

If you've ever installed software on a computer, you've seen a EULA even if you don't know what it is.  The End-User License Agreement is that always-lengthy, often-boring, and seldom-read screen displayed during the installation process that informs you exactly what you can and cannot do with the software program.  In a nutshell, it usually states that you license the software, rather than own it; that you can only run the license on one computer (no copying!); and that the vendor accepts no responsibility if the program accidentally erases your hard drive or sets your computer on fire.  EULAs are written by the vendor to protect the vendor's interests.  However, Adobe's latest software offering has some users up in arms over the rights to their own data.

Adobe has just released Photoshop Express, its first SaaS (Software as a Service) offering.  It's a beta (test) version of a free Web-based photo editing, organizing, and sharing service.  Early reaction to the program was positive, until somebody actually read the EULA associated with it.  That's when all hell broke loose.  Adobe has already stated that it is rewriting the terms in question, but it joins a growing list of major software shops who aren't paying attention to their own EULAs, and putting consumers at legal risk.

So what's the issue?  The EULA for Photoshop Express states that "Adobe does not claim ownership of Your Content.  However, with respect to Your Content that you submit or make available for inclusion on publicly accessible areas of the Services, you grant Adobe a worldwide, royalty-free, nonexclusive, perpetual, irrevocable, and fully sublicensable license to use, distribute, derive revenue or other remuneration from, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Content (in whole or in part) and to incorporate such Content into other Materials or works in any format or medium now known or later developed."  In plain English, photos you upload to the Photoshop Express site can be used by Adobe for whatever purposes it desires, and you have no say (and more importantly, get no financial reimbursement for the use of those photos).  The company could begin selling your shots as stock photography without having to credit you for creating the image or paying you any royalties on profit they might make from it.  And there's no legal recourse if the picture you edited for your friends of your sister in her bikini ends up, say, on an adult-oriented Web site.
 
After numerous complaints, Adobe released a statement saying the EULA impled things that the company would never do with user content, and that the EULA was being revised.  Good thing for users, but it underscores that not reading the EULA when you install software can come back to bite you in the butt, even if the information was incorrect.  Apple had a similar problem recently concerning its Safara product.  The EULA stated the program could only be run on an Apple-branded computer, even though it runs perfectly fine under Windows.  Like Adobe, Apple modified the Safari EULA, but if push ever came to shove, they could probably force the issue by stating the EULA was in effect at the time of installation.  Could Apple sue Windows users for running Safari?  Legally, they could.  Would they?  If they did, they'd be shooting themselves in the foot.  And yet it's a reminder for all of us that whether you read the EULA or not, you're bound by its terms once you click that button that says "I agree".