Touchqode: How Not to Write a License

In the Android Market listing for the touchqode app, we find this curious paragraph:

Please stop trolling about the license - there is NOTHING that gives us intelectual [sic] property to files edited by touchqode. You can review it at http://touchqode.com/licences/touchqode_licence_1_0.htm

I presume that they have received some complaints. This is not surprising, as this license is awful. Whoever touchqode hired to write this license should be ashamed.

It starts off OK, if overbearing — it’s as if the authors are really trying to convince the prospective user not to use the app.

Things start to get a bit wobbly around bullet #10, where the authors are trying to force users to agree to unseen, unlisted, and unknown “third party licenses”.

However, where it really goes off the rails comes with the opening of bullet #12:

All intellectual property remains the property of touchqode.

All intellectual property? Really? Touchqode owns the formula to Coke? Touchqode owns the patents related to Java? Touchqode owns my emails to my mother?

I think not. Admittedly, I cannot speak with authority regarding the first two, but I feel quite confident about my latter assertion.

And other bullet points are similarly bizarre, such as:

• 13 says that you grant touchqode a patent license to any patent pertaining to any “feedback, comments, or suggestions” that you provide to them that might touch on some patent you own

• 15 says that touchqode is not bound by its own agreement

• 17 basically says that the application might not be usable in the United States, among other places, because “local laws or regulations prohibit limiting liability or limiting guaratees”, and their license does not contain the standard disclaimers regarding warranty

Tactically, if you are going to have somebody draft a custom software license, compare the result with other similar licenses, and make sure they line up reasonably well.

Strategically, understand that a EULA, particularly a click-wrap one, is a marketing brochure as much as it is a legal document. It is through this license that the seller is telling the prospective client the nature of their relationship. A hostile license turns away client. And this license is certainly hostile in tone and intention.

Or, to put it another way: if people are complaining to you about the license, please consider that perhaps it might not be “trolling”.