dekstop: weblog

There currently are quite a number of very happy reactions over the announcement that Telestream's product Flip4Mac WMV is now available for free -- Flip4Mac WMV is a collection of "Windows Media® Components for QuickTime" that allows you to play certain Windows Media formats from within Quicktime, among them apparently some older formats that Microsoft's Media Player 9 for OS X can't play (I'm not actually sure about that, but this seems to be a reason why people install it -- that and the fact that MS has just discontinued their own Media Player.)

It's curious that there is a download link on the Microsoft website which clearly omits any mention of Telestream; in my opinion this gives a credibility to the product that it doesn't necessarily deserve, and which leads to the mistaken notion that it is a Microsoft product, which it is not. Flip4Mac is made by Telestream, not by Microsoft.

Frankly I'm a little annoyed by how much of the reactions seem to boil down to an unreflected "Oooh, shiny!" -- granted, it looks like a well-designed product, but by using it you have to accept a list of strange conditions.

Look a Gift Horse in the Mouth

Maybe I'm old school, but I still actually read EULAs. During the last 5-10 years there has been a standardization process concerning EULAs that I'm quite happy about; the standard EULA of a free commercial application is now short and easy to read. It usually simply contains statements about ownership, liability and jurisdiction, and that's it.

Now Flip4Mac's EULA is something quite different. It contains all of those statements mentioned above, and then some. There are several sections where I had to stop and re-read; and even after carefully studying some of the sentences I'm still not clear about what exactly they're trying to tell me.

Take this section:

Section 3. Audit Permitted.

Telestream shall have the right, upon reasonable prior notice to You and during Your normal business hours, to audit Your use of the Licensed Materials and to inspect Your records related to any copies of the Software, or portions thereof, made by You.

So they want access to my hard drive. Is this is their way of making sure I won't pirate their software? By threatening to visit me at home? I'm a bit relieved by the mention of "upon reasonable prior notice", because if I actually were to pirate their software I would surely want to know in advance that I'm getting a visit.

But before I jump to conclusions I have to admit I have no clue what this section actually allows them to do. What entails an "audit"? Do they actually want to sit in front of my computer to check out my porn collection, or will they be content with remote shell access? (Telestream are located in California, which is a bit of a ride from Berlin.)

And note that by agreeing to the EULA you enter a Non Disclosure Agreement (emphasis mine):

Section 5. Confidentiality.

5.1 Confidentiality. Telestream considers the Licensed Materials to contain valuable trade secrets of Telestream. Except as expressly set forth above, You agree to use reasonable efforts not to disclose or otherwise make available the Licensed Materials to any third parties and not to use the Licensed Materials other than for the purposed authorized by this Agreement. This obligation shall continue after any termination of this Agreement. You shall return all Licensed Materials promptly upon the request of Telestream or upon any termination of this Agreement.

5.2 Equitable Remedy. You acknowledge that due to the unique nature of Telestream’s Confidential Information, Telestream will not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of Telestream’s Confidential Information. In addition to any other remedies that may be available in law, in equity or otherwise, Telestream shall be entitled to obtain any injunctive relief that may be appropriate to prevent such unauthorized use or disclosure.

5.3 Term of Nondisclosure Obligations. Your obligations set forth in this Section 5 will survive for a period of five (5) years after the termination of this Agreement, and will bind Your representatives, successors and assigns, if any; provided, however, that such obligations will terminate with respect to any Confidential Information which becomes available for unrestricted public use through no fault of You.

To me, a semi-educated bystander when it comes to intellectual property law, this looks more like a patent license than a software license agreement. What secrets are they trying to protect? They're not talking about reverse engineering here; and I'm not sure what an average user of their product will learn about its workings that he then won't be able to talk about. The average user only sees a user interface, and as there is not much UI to speak of there's not much to disclose in the first place.

It does sound though as if it may be difficult to post a review of the product without breaking the license agreement, and you might have to consult with Telestream to know where they draw the line between "valuable trade secrets of Telestream" and information already "available for unrestricted public use".

Speaking of patent licenses -- if you ever read a license contract of copyrighted material (think music and stock art) then this section will read familiar:

Section 7. Indemnification.

...

7.2 By You. You, at Your own expense, shall defend Telestream, and its officers, directors, employees, representatives and agents, against any action brought against such person based upon use of the Licensed Materials or based upon or related to content posted to the Internet, Your Intranet, or elsewhere using the Licensed Materials, and shall pay all settlements entered into and damages awarded against You and/or Telestream (including reasonable attorneys’ fees) to the extent based on such action.

Please someone enlighten me, as I really don't get how such a statement belongs in a software license.

Take a look at the complete text of Flip4Mac's EULA, and let me know if you can explain what any of this means, or if you find other interesting sections.

Or simply ridicule me for my naiveté -- because I obviously don't get the concept of locking down a customer's rights to limit a theoretical risk of invented situations.

Request for Clarification

Flip4Mac WMV, as I mentioned before, looks like a well-designed application. There is an uninstaller shipped with their application which actually remains on your disk even after you deleted the installer -- now that's something I really like, because it gives me the assurance that the application is easy to remove.

They have an automatic update mechanism which you can easily disable from their preference pane (there still are people who care about such things); and a quick "audit" of their network traffic doesn't reveal any privacy breaches, at least not at first glance anyway (take a look at the tcpdump output).

So I'm not saying that Flip4Mac is an evil product, and Telestream an untrustworthy company -- all I'm saying is Flip4Mac's EULA is strange enough that I'm still debating whether I want to use their product; I'm simply not sure what kind of contractual relationship I entered when I clicked on 'I Agree'. At the very least they need to change their EULA, or explain publicly what it is they're trying to say with it.

You need to be aware that although it's free this is still a commercial product; if a commercial company gives out something for free it's usually safe to assume (without being too much of a cynic) that they want something in return. Usually it's only the increased chance of you buying their product, but you never know.

Download

• Flip4Mac-License.rtf (the Flip4Mac EULA, as found in their installer)
• flip4mac-tcpdump.txt (a network traffic dump of Flip4Mac checking for an update)

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