Skype license agreement

I installed Skype on my Windows XP notebook this morning. My username is scottmace. (With the huge number of signups in the first few days of this service's life, I figured I better grab it now.)

Skype's Web site, run by Skyper Ltd., claims no spyware is installed on your PC when you install Skype, but this service is from the makers of KaZaa, so it's worthwhile to scrutinize Skype's end-user license agreement. Excerpts follow:

SKYPER END USER LICENSE AGREEMENT
IMPORTANT - PLEASE READ CAREFULLY:

This End User License Agreement ("Agreement") constitutes a valid and binding agreement between Skyper Limited (together with its affiliates, successors and assigns "Skyper") and you ("you," or "your") for the use of the Skype Software, Network and Services, as those terms are defined below. You must enter into this agreement in order to install and use such Skype Software.

BY INSTALLING AND USING THE SKYPE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL OR USE THE SKYPE SOFTWARE.

Jumping ahead (emphasis mine):

2. License Restrictions.

(a) [...] you may not use the Skype Software or Services to develop, generate, transmit or store information that: (A) infringes any third party's intellectual property or other proprietary right; (B) is defamatory, harmful, abusive, obscene or hateful; (C) in any way obstructs or otherwise interferes with the normal performance of another person's use of the Skype Software or Services, (D) performs any unsolicited commercial communication not permitted by applicable law; (E) is harassment or a violation of privacy or threatens other people or groups of people; and (F) impersonates any other person, or steals or assumes any person's identity (whether a real identity or online nickname or alias).

I don't agree to these terms when I use the regular phone network. It's unfortunate that Skype has all the above restrictions. It virtually guarantees that the courts will view Skype as an information service, NOT a common carrier. It also opens the door for Skype and all its partners to be sued on the pretext that they are the stewards of whatever content is flowing over Skype. I'm sure this language is here to try to insure the opposite outcome, but I question whether it won't invite such litigation instead.

(c) The Skype Software and Services may be incorporated into, and may incorporate, technology, software and services owned and controlled by third parties. Use of such third party software or services is subject to the terms and conditions of the applicable third party license agreements, and you agree to look solely to the applicable third party and not to Skyper to enforce any of your rights. All modifications or enhancements to the Skype Software and Services remain the sole property of Skyper. You understand that Skyper, in its sole discretion, may modify or discontinue or suspend your right to access any of its Services or use any of the Skype Software at any time, and may at any time suspend or terminate any license hereunder and disable any Skype Software you may already have accessed or installed without prior notice. Skyper reserves the right to add additional features or functions to the Skype Software. When installed on your computer, the Skype Software periodically communicates with Skyper servers. You acknowledge and agree that Skyper has no obligation to make available to you any subsequent versions of its software applications.

3. Permission to Utilize. In order to receive the benefits provided by the Skype Software, you hereby grant permission for the Skype Software to utilize the processor and bandwidth of your computer for the limited purpose of facilitating the communication between other Skype Software users.

Uh-oh. It sounds like Skyper Ltd. can, without much notice, install spyware at some future point.

You understand that the Skype Software will protect the privacy and integrity of your computer resources and communication and ensure the unobtrusive utilization of your computer resources to the greatest extent possible.

Is it possible for any utilization of my computer to be entirely unobtrusive?

You acknowledge that certain functions in the Skype Software are only available to paid subscribers after a free trial period of the Skype Software and Services (the "Free Trial Period") ends. After the Free Trial Period ends, you will be presented with the option to subscribe to the Subscription Services. If you do not wish to subscribe, you acknowledge that you can not access functions and services only available to paid subscribers. To subscribe to the Subscription Services you must agree to the terms and conditions of the Subscription Services.

Well at least I get to look at this EULA again at that time.

(b) You agree that you will not use any automatic or manual device or process to interfere or attempt to interfere with the proper working of the Skype Software, Network or Services, except to remove the Skype Software from a computer of which you are an owner or authorized user in a manner permitted by this Agreement.

So if Skype at some point employs spyware, and I try to remove said spyware with a spyware-removal program, have I violated the EULA?

(c) THE SKYPE SOFTWARE IS UTILIZED AND DISTRIBUTED BY THIRD PARTIES WHICH ARE UNRELATED TO SKYPER. YOU ACKNOWLEDGE THAT INSTALLATION OF THE SKYPE SOFTWARE WILL ALLOW THIRD PARTIES WHO ARE NOT AFFILIATED WITH SKYPER THE ABILITY TO COMMUNICATE WITH YOUR COMPUTER ("OUTSIDE PARTIES"). YOU AGREE THAT SKYPER WILL NOT BE LIABLE FOR ANY DAMAGE, CLAIM OR LOSS OF ANY KIND WHATSOEVER, INCLUDING BUT NOT LIMITED TO INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES AS STATED IN PARAGRAPH 9(a) ABOVE, RESULTING FROM ANY ACTIONS OR OMISSIONS OF THE OUTSIDE PARTIES.

That didn't sound too good...

11. Emergency Calls.

BY ACCEPTING THE TERMS OF THIS END USER LICENSE AGREEMENT YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE SKYPE SOFTWARE AND THE SERVICES DO NOT AND ARE NOT INTENDED TO SUPPORT OR CARRY EMERGENCY CALLS TO ANY TYPE OF HOSPITALS, LAW ENFORCEMENT AGENCIES, MEDICAL CARE UNITS OR ANY TYPE OF EMERGENCY SERVICES OF ANY KIND AND THAT SKYPER, ITS AFFILIATES, PARENT COMPANIES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND NETWORK SERVICE PROVIDERS ARE NOT NOR SHALL BE LIABLE IN ANY MANNER FOR SUCH CALLS.

This strikes me as a clause that Vonage should have added to their service. Even so, if Skype interconnects with the PSTN (old-fashioned phone network) they may be compelled by authorities to provide some kind of 911 service, and be assessed a per-user fee for doing so.

13. General Provisions.

Skyper reserves all rights not expressly granted herein. Skyper may modify this Agreement at any time by providing such revised Agreement to you or posting the revised Agreement on its website located at www.skype.com.

8 September 2003

I sure wish these EULAs provided a mechanism for us to be ALERTED when the EULA changes, instead of placing upon us the burden of visiting their Web site to see if in fact the EULA has changed, and if so, how.

Having said all this, I'm off to acquire a decent headset and try out Skype.