Most of us are used to proprietary license agreements for software products -- especially those made by Microsoft -- and perhaps to a limited extent, for some types of hardware as well. In requesting a review package for the Microsoft Zune digital audio player, I was recently presented with something I had never seen before: a license agreement for the actual review materials. The document a public relations representative asked me to sign dictated the terms by which I could use and write about the Zune. Consequently, I declined the opportunity to write about the product because I don't want the manufacturer to put restrictions on what I write about their products. Below is an explanation of what this bizarre agreement entails.

Review agreements

Actually, I have seen restrictive product review agreements in the past. IBM and Lenovo have sent me review packages with documents that tell me what I can and can't do with their products, but didn't require my signature in order to participate. Harmonic Inversion Technology sent me a less complex agreement that asked for my credit card information in case I decided to keep the (relatively inexpensive) product they loaned for review. Of course I did not provide that information -- who in their right mind would?

A Microsoft spokesperson who wished to remain anonymous told me that Microsoft requires this same agreement of all of the reviewers it works with, and has for quite some time. I personally know this to be false, as I have reviewed more than a dozen Microsoft products over the past five years, ranging from Windows XP and Office XP to its line of computer peripheral hardware products, and have never been asked to sign anything.

Oddly, manufacturers that send more expensive products to review don't require any more than my word that I'll send it back, and don't seem concerned that I will otherwise behave unprofessionally. It's only the sub-$300 devices that manufacturers seem worried about. Even then, what's the point of sending a toothless "agreement" that I will in fact not agree with? That's what worried me about the Zune agreement -- it required my signature. Let's take a look at the things I would have signed my acquiescence to.

The Zune reviewer's license agreement terms

The two-page document begins with empty fields for the reviewer's information -- name, address, phone number, email address, publication, and columns for two signatures. Apparently email messages and phone conversations that reveal these details are not enough.

The introductory text explains what this license governs, which is the contents of the review kit:

• Welcome letter
• Reviewer's Guide
• Zune device with pre-loaded content
• Zune software CD
• 14-day or 3-month trial card for the Zune Marketplace
• Pre-paid return packaging

The agreement goes on to assert that the Zune itself must be returned to Microsoft within 14 days, "or earlier upon Microsoft's request." Under what conditions would that happen, I wonder? Could Microsoft suddenly declare you an enemy of the company and terminate your license with extreme prejudice? And what about the other components of the kit -- why aren't they to be returned as well if they are so important as to be labeled "confidential" by the agreement?

Part 2 of the document begins by saying that the above materials are licensed to you only, and that you can only use them on your "premises," which I presume to mean your office or home. So reviewing the Zune while on a bus, in an airport, at a friend's house, or at a coffee shop is strictly forbidden. It also means that other people -- friends, co-workers, spouses, or indeed freelancers or other writers whom you might assign the review to or ask to help test -- are not allowed to use anything in the review kit. They are not allowed to use the Zune; they are not even allowed to read the welcome letter.

Next, you're told that you are only allowed to study the contents of the Zune review kit to write a review or article on the Zune. You can't, for instance, write a review of an album or song that you hear while using the Zune, nor could you use the Zune to write a review of headphones or earbuds.

When referring to such in the review, you are only permitted to refer to these names:

• Zune
• Zune device
• Zune Marketplace
• Zune software
• www.zune.net

The agreement specifically demands that you not refer to the Zune reviewer kit. You also could not refer to the Zune as the "Microsoft Zune," and if you really followed the agreement to the letter, you couldn't even use pronouns.

You may only use "unmodified" screen shots of the Zune in the review. That means you are not allowed to watermark, crop, or otherwise edit your Zune photos. Theoretically you couldn't even compress them.

With regard to the operation and use of the Zune, you must follow all instructions that Microsoft gives you. You're also compelled to keep the device in good condition. This last part is not a surprise; it's the first part that I find bizarre. If Microsoft says I can't reset the device's ROM or try out alternative firmware on it, then I'm limited in what I can write about.

If you receive an updated reviewer's kit in the 14 (or less) days that you have the original one, you have to return both kits.

You are not allowed to open or in any way disassemble the Zune. You also can't copy, reproduce, distribute, reverse-engineer, attempt to derive source code from, modify, or make a derivative work of any part of the Zune review package.

Both you and Microsoft can choose to terminate the agreement at any time, but the notice of termination must be in writing. Even if you terminate the agreement, what follows below will survive it. In other words, there are parts of the agreement that are apparently supposed to be in effect forever.

Lastly, if you suffer damages because of the Zune or the review kit, Microsoft claims that it is not liable, even if Microsoft is aware that the Zune will cause damage. You are, of course, responsible for keeping the Zune in pristine condition, even if the Zune is damaged due to overcharging, which Microsoft has acknowledged as a possibility according to this Amazon.com reviewer. If you live in a state where it is not possible to eliminate liability, Microsoft says that the most it will be liable for is U.S. $100 or the value of the Zune review kit, whichever is greater.

Or what?

The rest of the agreement is the usual all-caps WARRANTY and LIMITATION OF LIABILITY tedium found at the tail end of every proprietary license. What the agreement does not state clearly is what the penalty of violating it is. What can Microsoft do to you if you sign this ridiculous agreement and then refuse to abide by its terms?

Well, first of all you'll be bound by the laws of the state of Washington. If that is inconvenient for you, too bad -- Microsoft invokes the forum non conveniens clause. If you want to try to claim that the court Microsoft sues you in has no jurisdiction over you, too bad -- Microsoft declares that this is not possible. If you sue Microsoft or vice-versa, the prevailing party must pay the other's legal fees.

The very last paragraph in the license says that if you use the review kit in an unauthorized way or if you even threaten to do so, that Microsoft will be harmed immediately and irreparably and "for which there is no adequate remedy at law." Under such conditions, Microsoft entitles itself to "appropriate injunctive relief, without the necessity of posting bond or other security." I take that to mean that you'll be sued, though I'm no lawyer and don't understand all of the possible meanings of this purposefully ambiguous and certainly threatening language.

You don't need to be a lawyer to understand that this license is meant to scare a reviewer into abiding by the terms that Microsoft thinks are favorable to it. If you don't do what Microsoft says -- like if you use the Zune on the bus, or show the welcome letter to your girlfriend -- you face the possibility of consequences implied by "appropriate injunctive relief." The likelihood of this outcome is not a measure of its authority, nor of its gravity. To me this seems like economic terrorism -- scaring people into thinking that they'll be sued if they don't write positive reviews. It's dirty pool. It's what many in the computer technology world have come to expect from a software company that has consistently used goon tactics to force competitors like Corel, Lotus, Novell, Caldera, Be, and Sun Microsystems into submission. I will not submit; I will not support it. This editorial article appears in lieu of a Zune review.

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Copyright 2007 JEM Electronic Media, Inc. No reprints without written permission.