I have a fantasy that goes like this: I'm downloading some software from a vendor's Web site, and I'm presented with a screen with many lines of tiny type followed by two boxes. One says "I accept," and the other says "I do not accept." I'm feeling lucky -- or maybe just cantankerous -- so I click the "I do not accept" box. The download comes to an abrupt end.
But a few moments later, I receive an e-mail from the software vendor. "Dear sir," it says, "we couldn't help noticing that you rejected our licence agreement, the one that gives us all the rights and you no remedies when our software crashes or admits hackers, as it surely will. Frankly, we don't blame you. As buyers, we'd never sign anything like that either. But we really, really, really want your business, so we are going to let you have the software anyway. We just ask that you keep this quiet."
Fantasy, indeed. But recently, I was given hope that packaged software licence agreements, surely the most lopsided in all the world of commerce, might be changing. Two of the IT luminaries I interviewed recently about the future of IT said the time is ripe for software buyers to assert themselves. Users are so fed up with bugs, bloatware and security flaws that they will finally rise up and demand guarantees and remedies from vendors, they said.
At about the same time, The Wall Street Journal published a story saying that customers are "starting to press software makers to assume responsibility for faults and pick up some of the costs". The Journal noted darkly that "even a whisper of the 'L word' -- liability -- sends shudders through the software industry."
But after poking into this issue, I found few shudders among either sellers or buyers. Vendors have no plans to change, and while users grumble, for the most part, they accept the status quo.
Buyers' legal leverage is apparently so weak that when I asked Mark Grossman, an attorney at DeWitt Grossman, what advice he gives clients, he cited IT measures, not legal ones: "Redundancy, backup, bringing in security consultants and patching the holes."
So my plan to write a front-page story with a catchy headline like "Software Customers Cast Off Their Chains" or "Users Mad as Hell, Not Going to Take It Anymore" evaporated.
But that's not quite the end of the story. David Weidenfeld, an attorney at McDonald's Corp who specializes in IT procurement, says nothing much has changed in recent years when it comes to buying packaged software. But, he insists, it's not true that buyers have no leverage. Whereas Joe Consumers like me won't get anywhere by clicking the "I do not accept" button, it's a different story for corporate buyers. "There are things you can do," he says, "but you have to work really hard."
For example, Weidenfeld says, it took him months of negotiation to get a software vendor to amend its basic contract to close what he saw as a serious security loophole. The software had a back door -- which the vendor told customers about -- by which it automatically reported usage of the software for purposes of verifying compliance with licensing terms. But Weidenfeld insisted on a provision that stipulated to the vendor, "You will have no code in this software that's not part of the business application, and if you do, and anything happens, you are responsible for all the damages that occur."
Although Weidenfeld achieved a significant victory, he says too often the purchasing and legal people negotiating with software vendors are not trained in IT, are not part of the IT department and by habit focus on price negotiations. "They say, 'This is not the mainstream of our business. I lowered the price a little; I'm happy, let's get out of here.' "
Weidenfeld says that to break this mindset, all procurement of IT should be consolidated under the CIO, but he notes that the CIO may need a significant boost in staff and budget to handle the load.
Successful negotiating is a matter of hard work and resolve, he says. "If you aren't prepared to give the vendor a flat 'no', or a 'not now', there's a limit to what you can accomplish."
So when the time is right for that front-page story, perhaps the headline will say, "Users work like hell, not going to take it anymore."