Slashdot Mirror
Examples Of Questionable EULAs?
Vergil Bushnell approached me with a wonderful opportunity. He writes: "I'm an e-commerce policy analyst working for the Consumer Project on Technology, a research and advocacy organization founded by Ralph Nader. I spend much of my time working to oppose UCITA. I'm trying to collect examples of particularly egregious shrinkwrap and clickwrap license "agreement" clauses to better illustrate the potential repercussions of the UCITA. I would like to ask Slashdot readers to contribute examples of such clauses -- especially those that seek to prevent benchmarks/ criticism, allow software licensors to harvest confidential data about consumers and their activities, and
permit remote termination and/or the existence of "backdoors" in software. So if you've ever had a problem with the language of a particular EULA, and you are worried about the notion of the UCITA now is your chance to do your small part in trying to get the law changed. Read on...
"Egregious EULA clauses posted as the result of this 'Ask Slashdot' will be verified and posted on CPT's UCITA Web site -- (giving credit to the "discoverer") for all to see.
Please accompany your postings with a brief description of how you discovered the EULA (if downloaded, include the URL of the relevant Web site), the date you found the EULA, and (if you wish to receive credit for finding the EULA) your name."
It's been a while, but if I recall right, EQ had an incredibly restrictive (and long) EULA.
"THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE COMPONENTS AND ANY SUPPORT SERVICES REMAINS WITH YOU."
"TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MICROSOFT AND ITS SUPPLIERS PROVIDE TO YOU THE COMPONENTS AS IS AND WITHOUT ANY SUPPORT SERVICES"
So much for the softie argument "Yeah, Linux is okay, but who do you sue when something goes wrong?" If you're using Microsoft, the answer is "The same people you sue if your using Linux, nobody." Fortunately you can go to the Linux community and get help for free.
1) The Timex Datalink watch.
2) an old Office 95 licence
1) The watch code is licensed ONLY for Windows 3.1, WFW and Windows 95. YET the watch box says NT is supported. A call to Timex was 'oh, that is a typo'
2) The clause that says you can only run the code on PROPERLY LICENCED copies of the windows operating system. If you didn't send in the warranty card -> licence is not "proper", and therefore you were in violation of the licence.
And a personal fav - Clause f of the EULA that says 'if you get sued and Microsoft is named, you have to pay M$'s lawyer bills.'
If it was said on slashdot, it MUST be true!
This one should be a good example, as it gives the company the power to restrain legitimate free speech by banning criticism through an EULA.
You know what to do with the HELLO.
You know what to do with the HELLO. ...
Help create an open-source world
By using our Web site, you consent to the collection and use of your personal information by MP3.com as outlined in this Privacy Policy.
But I never read the agreement!
I also don't have a copy with me, but on the Microsoft Y2K update cdrom's that they mailed out (I don't know what you have to do to get on that list) the wrapper of the cdrom said that by using the cdrom, I agreed to the terms and conditions of the license agreement, stored on the cdrom! These are clearly catch-22 situations, and oughta be illegal - except for UCITA, which makes them binding.
Visit
I would imagine that an EULA is looked on the exact same way that a rental agreement, or any other contract in the USA is looked at. If the contract violates the law, or your rights you do not have to abide by that contract. For instance, my rental agreement says something to the effect of "if at any time, any part of this document becomes illegal or otherwise violates a legal precedence this contract is null and void - a new one will need to be reinstated". Why is software any different? Aside from the fact that the Software and hardware industries have been the engine for the USA's economic growth - it still doesn't change the law -- look at Microsoft.
UCITA tries to violate the rights given to US consumers, much like a lot of the `extreme legislation' that has been happening of late this would be completely thrown out by any higher court.
Any thoughts?
I think the absolute worst case of EULA abuse are the clauses that forbid performance reporting that are found in Oracle, and most of the other major database vendors.
-- Superlame http://catpro.dragonfire.net/joshua/
License agreements (and all legal documents) are supposed to be understood by the parties entering into the agreement. As it stands, most EULAs are full of legal mumbo-jumbo.
If I'm installing a piece of software at 2am, am I really expected to read through a lengthy document and consult a lawyer when I don't understand a particular clause? If you ask the company whose product I've just bought, yes.
If you ask me, that is an unreasonable expectation. Do you know what lawyers cost? Do you think I should have to keep one on retainer just for the cases where I install commercial software? Hell, that would cost as much or more as buying the software in the first place!
Additionally, these companies try to avoid any liability issues. Suppose I buy a defective dishwasher that sparks and catches my house on fire... who is responsible for that? Maytag (or whoever, no offense to Maytag intended or implied).
If a memory leak in someone's latest, greatest software package corrupts vital data (say in the kernel of my new media-less Windows 2000 system), who's to blame? No one. (Well, I'd be the one to blame if I was stupid enough to rely on M$ Win2000 for anything more important than minesweeper!) Problem is that many companies do rely on software such as this, and pay large amounts of money to do so... you'd think they would have bought a bit of accountability to go along with it.
Eric
The producer who demands agreement to the license doesn't even have an "anonymous" ID (like the name on this post); click/shrink-wrap licenses are like putting "by reading the following posting you agree to the following conditions..." on a /. response - it's a legal absurdity because the one requiring agreement to terms hasn't got the foggiest clue who is doing the agreeing.
Can we get a "-1 Wrong" moderation option?
Xing Technology Corporation
End-User License Agreement
This License Agreement (this "Agreement") is a legal agreement between you and Xing Technology Corporation, a California corporation ("Xing") for the accompanying software, associated media, printed materials, audiovisual content, and "online" or electronic documentation (collectively, the "Product"). By installing or using the Product, you agree to be bound by the terms of this Agreement. If you do not agree to all of the terms of this agreement, de-install all copies of the Product from your computer and return all Product materials to your distributor or Xing for a refund of any license fees paid.
LICENSE:
1. The Product is licensed, not sold. The Product is protected by copyright law and international copyright treaty provisions, as well as other intellectual property laws and treaties. You must not allow copies of the Product or any part of it to be made or distributed to anyone else. You may make backup copies of the software for archival purposes only.
2. Xing grants to you a non-exclusive, non-sublicensable license to use the Product for your own use only.
[pretty standard so far, right?]
3. The Product is licensed for use on a single session of a single computer. If your computer is capable of running more than one simultaneous session, you may not use the Product on more than one session at a time. You may delete the Product from one computer and reinstall it on another, but you may not install the Product on more than one computer at any given time. If you wish to install the Product on more than one computer or use the Product for more than one session on a particular computer, you must purchase separate copies of the Product for each such computer or session.
[in other words, you can't run two instances of the program at the same time, nor can you install it on two computers, even if only one of them would be in use at a time (i.e. home vs work).]
4. The Product may not be rented, leased, or in any other manner commercially exploited without prior written permission of Xing. However, you may transfer this license to use the Product to another party (the "Transferee") on a permanent basis by transferring all parts of the Product to the Transferee. Such transfer of possession terminates your license from Xing. The Transferee will be licensed under the terms of this Agreement upon the Transferee's acceptance of this Agreement by its initial use of the Product. Upon notification to Xing of the transfer, the Transferee will receive customer support on the same terms you did at the time of the transfer, and the Transferee will receive no support if for any reason you were ineligible for support. If you transfer the Product, you must remove all parts of it, along with any installation devices, from your computer, and you may not retain any parts or copies for your own use.
[so much for right of first sale..]
5. The Product in source code form is confidential and Xing's protected trade secret, and you may not attempt to reverse engineer, decompile, disassemble or otherwise decipher any portion of the Product. Reproduction and/or redistribution of any portion of the Product is specifically prohibited in the absence of a separate written agreement with Xing.
[Hooray for DMCA! You can't reverse engineer or otherwise use xing's software for anything other than what the UI lets you do.]
6. If audiovisual content contained in or bundled with the Product (the "Content") contains its own license agreement, that agreement controls use of the Content. Otherwise, use of the Content is controlled by this Agreement. You may not modify, copy, or distribute the Content except to the extent this Agreement allows modification, copying, or distribution of the Product. You may not use the Content except in conjunction with personal testing or demonstration of the Product. The Content must at all times remain with the Product in its original form.
7. All video, audio, and other content accessed through the Product is the property of the applicable content owner and may be protected by applicable copyright law. This Agreement gives you no rights to such content.
8. If you use the Product to create or distribute audio, video, or other content, Xing is not responsible for such content, and you are solely responsible, for the property rights, legality, and regulation of all such content, including but not limited to issues of copyright ownership and obscenity regulation worldwide.
9. Xing retains all ownership and intellectual property rights in and to the Product. You agree to abide by the copyright law and all other applicable laws of the United States, including those relating to United States export controls. You agree not to ship or re-export any portion of the Product to any destination to which it could not lawfully have been exported originally under those export controls.
10. Xing may terminate this Agreement at any time by delivering notice to you, and you may terminate this Agreement at any time by removing all copies of the Product from your computer and destroying all Product materials. However, Sections 4 through 12 of this Agreement shall indefinitely survive its termination. This Agreement is personal to you and you agree not to assign your rights under it. This Agreement shall be governed by and construed in accordance with the laws of the State of California and by U.S. federal law relating to intellectual property in general, and to copyrights, patents, and trademarks in particular. You agree to submit all disputes to the exclusive jurisdiction of courts or tribunals located within the territorial boundaries of the U.S.
11. The Product is covered solely by the accompanying Xing Limited Warranty. THE PRODUCT IS PROVIDED WITHOUT ANY OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
12. XING SHALL NOT BE LIABLE: (A) FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR INDIRECT DAMAGES OF ANY SORT WHATSOEVER, WHETHER ARISING IN TORT, CONTRACT, OR OTHERWISE (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS PROFITS, REVENUES, OR INFORMATION, OR FOR BUSINESS INTERRUPTION) RESULTING FROM YOUR USE OF THE PRODUCT OR YOUR INABILITY TO USE THE PRODUCT, EVEN IF XING HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) FOR ANY CLAIM BY ANY PARTY OTHER THAN YOU. IN NO EVENT SHALL XING'S LIABILITY TO YOU EXCEED THE AMOUNT YOU ORIGINALLY PAID FOR THE PRODUCT. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
13. The Product is provided with Restricted Rights. Use, duplication, or disclosure by the U.S. Government or any of its agencies or instrumentalities is subject to the restrictions set forth in subdivision (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, or in subdivision (c)(1) and (c)(2) of the Commercial Computer Software -- Restricted Rights clause at 48 CFR 52.227-19, as applicable. Manufacturer/contractor is Xing Technology Corporation, 2925 McMillan, San Luis Obispo, CA 93401.
"Xing" and "StreamWorks" are registered trademarks, "SmartFAQ" is a service mark, and "XingMPEG", "MPEGLive!", "MPEG2Live!", "MP3Live!", "XingMP3", "StreamWorks MP3 Server", "XingDVD", "AudioCatalyst", "XingMP3 Player" and all logo and graphic designs are trademarks of Xing Technology Corporation.
Other product and company names appearing in Xing Technology Corporation products and materials are used for identification purposes only and may be trademarks or registered trademarks of their respective companies. Registered and unregistered trademarks used in any Xing Technology Corporation products and materials are the exclusive property of their respective owners.
Copyright (c) 1994-99 Xing Technology Corporation. All rights reserved.
[license ends with more standard legal stuff, including the obligatory all-caps "we aren't responsible, damnit!" section.]
Nathan Strong
change "geeblooz" to "gblues" and remove ".has.crappy.service" to e-mail me.
Please inform Mr. Nader that I am still having problems with my Corvair. It has now flipped over 143 times when making right hand turns. I hope he will be able to do something about it because my poor head is starting to hurt! I have to run now, Art Linkletter will be on the Philco soon.
I was given the task earlier this week to track down some prices for a web serving solution that my company is looking at setting up. The specs included Allaire's Coldfusion Server (for those not enlightened, Coldfusion is remotely similar to ASP and PHP), backed by Microsoft SQL Server 7.
I had heard, from an acquaintance that there was some sort of special licensing when putting an SQL server on the 'net, so I checked out the MSSQL website, and ran accross something called an "Internet Connector License" on the Licensing and Pricing page.
According to this page, you need to purchase a license for each client of MSSQL Server. Makes sense. Client licensing is commonly used in the industry. I have no big beef with this.
In my proposed setup, as I mentioned, the web users would connect to the webserver, which in turn connects to the Coldfusion Daemon, which requests information from the SQL server. Coldfusion would be the only client of the SQL server. Nothing else would be connecting. So, naturally, I thought that I would only need one(1) Client Access License (CAL) for the Coldfusion Server.
Microsoft thinks differently. See, according to Microsoft's legal department (and my supplier), each user of my web server is indirectly a client of the SQL server, and therefore, I need licenses for user who receives pages generated by the Coldfusion daemon.
Since it's pretty much impossible to determine how many different users will visit the server, and VERY impractical to try and maintain a bank of licenses for the userbase, Microsoft has 'conveniently' created a special licensing package which covers all internet based users.
The Internet Connector License is $2999USD. This is ridiculous. There is no added value to this 'product', no extra features, and is just an underhanded way to make extra cash. Web users never connect to the SQL server. By this logic, if I pull information from a MSSQL server put it into a word processor, and print 100 copies of this document, I need 100 client licenses.
THIS is a questionable EULA.
But, that's exactly the same situation you can have if you use OSS software thats covered under a GPL. So which is right, a "closed" software EULA waiving all liability, or the "open" GPL, which, um, waives all liability?
Syllable : It's an Operating System
I understand that most software creators want to cover their butts (and save on the expense of support) by detaching themselves from responsibility. Hence the "use at your own risk" statements. But backdoors? If I were a software creator...no, if I were the person in charge of the business decisions the software creators have to live by, there's NO way I'd incorporate such a process into my software without making it UNDENIABLY clear to the user that it's for their own good.
People don't like sneaky software and just one product that gives you a black eye can ruin your ability to sell products in the future. There's always competition and your competitors would just LOVE for you to piss off your users.
Anyone got any examples of license agreements where the user has to agree to an open back door? I'm up for being corrected. :)
bTJOD
~-- Yet another posting forum : nerd center --~
The "Legal Notice" on Borland's Community Web is rather interesting. I especially like:
Copyrights: The materials on this Site are copyrighted and protected by worldwide copyright laws and treaty provisions. You may download one copy of the information ("Materials") found on this Site on a single computer for your personal, non-commercial internal use only unless specifically licensed to do otherwise by Inprise Corporation in writing. Except as otherwise provided in this paragraph, Inprise Corporation does not grant any express or implied right to you to any patents, copyrights, trademarks, trade secrets, or other intellectual property
Only one download of an HTML page? And only for non-commercial use?
In fact, its gotten so boiler-plate that I'm surprised there isn't #include eula.h language on the distribution media. To wit: This software is protected by the USC EULA Software Act of 2001 and such.
Oh, wait, I forgot about UCITA...
"Stop whining!" - Arnold, as Mr. Kimble
The avowed purpose was to detect people using monitor and probe programs to cheat while playing the game, but the firestorm of criticism and controversy it set off led to the removal of the offending language.
I don't have the language (or even good references - it's been a couple of months, they've expired off the web sites) here at work, but this has to be held up as a pretty poor attempt at a license agreement. It basically allowed them to install, on my computer, at their convenience, a program which would monitor the processes I ran, and the data on my hard drive, and report back to them. If they'd actually done it - I'da quit.
I love vegetarians - some of my favorite foods are vegetarians.
Most of the retail software I see has a seal on the box (and CD) saying "By opening this pakage, you agree to the terms and conditions on the license agreement contained inside". OK, You open the box, not knowing what you agreed to; You read the license, say "no way in heck!", put the box back together and take it back to the store. You guessed it! "You cannot return opened software" Biggest problem is that on most of the license agreements, they say "If you do not agree to these terms and conditions, promptly return the software to your place of purchase for a refund" What do you do? What I do is take the software back, say "The CD is warped (or whatever)" and get an exchange. A few days later, return the exchange (which was left unopened). Or I just have fun with the manager (depends on how playful a mood I am in)
From the GPL:
Activities other than copying, distribution and modification are not
covered by this License; they are outside its scope. The act of
running the Program is not restricted, and the output from the Program
is covered only if its contents constitute a work based on the
Program (independent of having been made by running the Program).
Whether that is true depends on what the Program does.
In other words, you do _not_ have to agree to the GPL to run the program. You never have to agree to the GPL. But if you don't, you can't copy, modify or distribute the software, because the only way you'll get the right to do that is through the license.
The GPL is based on copyright, and gives you the ability to do things you'd ordinarily not be able to do, in exchange for certain restrictions. Shrinkwrap licenses remove your ability to do things you'd be able to do, absent the license.
I see a lot of people complaining that they don't want to have to take each EULA to their lawyers to determine whether the terms are agreeable. This is missing the point. Under the statutory law (that's law passed by legislative bodies, rather than courts, BTW) a consumer's rights can be implied into or superimposed over the terms and conditions that appear in a EULA. Also, statutory law can govern the rights between a vendor and a consumer in areas where the agreement is silent. THIS IS WHAT UCITA ATTEMPTS TO DO, BUT UCITA IS VENDOR-BIASED.
Since ordinary people like you and me will never be able to negotiate any EULA's with Microsoft or any other vendor, we have to try to make laws like UCITA more consumer-oriented so that vendors are not allowed to place outrageous terms in the EULA's. Therefore, keep in mind that (a) lawyers can't help you negotiate EULA's because you (joe consumer) have no leverage, and (b) even though joe consumer has no leverage, all the joe consumers together can tell their lawmakers to override the overreaching portions in EULA's through legislation.
Final point: don't forget that courts can override both the vendor's EULA, but also the statutory law, so if both of them still don't get it (as apparently they do not), then there is always hope that a judge will see the light and change things for the better. Remember to chose your battles, and this is one worth fighting.
Please note: by powering on this computer you agree to abide by the licensing terms of DOS 3.3
Common practice today, any computer you buy will have a sticker like this on it. So there is NO opportunity to request a refund for the unused software, or otherwise disagree with the license and opt not to use the software if you want to use the computer. How fair is that?
First, this isn't an example of egregious EULA--it's an example of egregious PRICING. The EULA itself is, as you point out, entirely fair.
In any case, there is a way around this (at least there was 2 years ago, when I was doing something similar). Use MS Transaction Server (or whatever they are calling it nowadays). It "multiplexes" connections to various entities (COM objects, SQL servers, etc). At the time the licensing was as you expected: Multiple clients to MSTS are considered one connection to SQL.
--
Wanna hook MAPI clients to your Tru64/AIX/Linux server?
Linux MAPI Server!
http://www.openone.com/software/MailOne/
(Exchange Migration HOWTO coming soon)
I am the parent of 3 kids. They are all minors (younger than 16). In our state, minors can not legally enter into contracts. Does this apply to EULAs? I believe that the thinking in the law is: kids do not have a firm enough grasp of the long term legal concequences of contracts.
So, does this apply in EULAs? If one of my kids puts a program on my computer that does damage, they could not be held to the contract. I did not enter into the contract, I can't be held responsible, is the vendor now held responsible? They knowingly sell to minors . . .
Bob YoungThink it. Draw it. Run it.
So your not allowed to benchmark their software and publish it without thier prior consent. Probably if they do not like the results.
"230-2. The customer shall not disclose the results of any 230-benchmark test to any third party without Network 230-Associates' prior written approval. 230- 230-3. The customer will not publish reviews of the product 230-without prior consent from Network Associates. 230-"
* Installation and use. You may install, use, access, display and run one copy of the Product on a single computer, such as a workstation, terminal or other device ("Workstation Computer"). A "License Pack" allows you to install, use, access, display and run additional copies of the Product up to the number of "Licensed Copies" specified above. The Product may not be used by more than two (2) processors at any one time on any single Workstation Computer. You may permit a maximum of ten (10) computers or other electronic devices (each a "Device")to connect to the Workstation Computer to utilize the services of the Product solely for file and print services, internet information services, and remote access (including connection sharing and telephony services). The ten connection maximum includes any indirect connections made through "multiplexing" or other software or hardware which pools or aggregates connections. You may not use the Product to permit any Device to use, access, display or run other executable software residing on the Workstation Computer, nor may you permit any Device to display the Product's user interface, unless the Device has a separate license for the Product.
In the emphasized area, doesn't this mean that you cannot download, run, etc.. from a telnet, FTP or etc session running on a windows 2000 machine if you don't have Windows 2000?
4. TRANSFER-Internal. You may move the Product to a different Workstation Computer. Transfer to Third Party. The initial user of the Product may make a one-time transfer of the Product to another end user. The transfer has to include all component parts, media, printed materials, this EULA, and if applicable, the Certificate of Authenticity. The transfer may not be an indirect transfer, such as a consignment. Prior to the transfer, the end user receiving the transferred Product must agree to all the EULA terms. No Rental. You may not rent, lease, or lend the Product.
What, If I sell (err.. transfer) this to Joe down the hall from me, Joe can't sell (err..transfer) it to someone else? What a crock!
7. CONSENT TO USE OF DATA. You agree that Microsoft and its affiliates may collect and use technical information you provide as a part of support services related to the Product. Microsoft agrees not to use this information in a form that personally identifies you.
Just your standard "we can collect any information on you that we wish only for some vaguely stated purpose, as long as you are "anonymous"
Then, of course it goes on and on with the standard "you can't sue us for anything" crap.
-Keithel
Here's one from Walker Digital.com, they own priceline.com and a lot of patents. This is the beginning of their "Conditions of Use":
t ies/intellectual_properties.cfm?screen_id= 2
NOTICE.
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. BY ACCESSING THIS SITE AND ANY PAGES ON THIS SITE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS BELOW. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS BELOW, DO NOT ACCESS THIS SITE, OR ANY PAGES ON THIS SITE.
They go on to disallow "decompiling" or "disassembling" the site (hmm...guess I can't "View Source"), retrieving any info from their site by "automated means", or framing the site. Also they have a section that removes any liability from anything they might post on the site. Gee, I guess they could have a bunch of illegal MP3's for download if they wanted to, since the RIAA would agree to the conditions of use by looking at the site.
Here's one of my favorite parts: "Walker Digital Corporation may, at any time revoke your access to the Web Site..." Like they could really keep someone out.
I'd post all of it but they'd probably sue me under the terms of the EULA. Here's a link to the page so you can read it (and be disgusted like I was):
http://www.walkerdigital.com/IntellectualProper
...on my peel-off calendar.
Dilbert reads on package: SOFTWARE LICENSE: BY OPENING THIS PACKAGE, YOU AGREE...YOU WILL NOT MAKE COPIES OR EXPORT TO DESPOTIC NATIONS. YOU WILL SUBMIT TO STRIP SEARCHES IN YOUR HOME...
[Dilbert rips open packaged software]
A heavy-set nurse walks in the room, pulling on a shoulder-length rubber glove: "Frankly, both of us would have been happier if you had just walked away."
1) The reader will not moderate this (or any other post by this author) in any negative fashion.
2) The author makes no warranty, express or implied, about the usability of this post in this or any other fourm, topicality of this post to the question at hand, quality of spelling or content or correctness of information.
3) The author shall not be responsible for damages to computer equipment or software arising from this post.
4) Unauthorized attempts to bypass the copy protection in this post shall be prosecuted to the fullest extent of the law in the state of Virginia or whichever state comes up with a better version of the UCITA.
5) The reader agrees to provide the author with food and beer, should the author appear on their doorstep demanding these items.
6) This post is Patent Pending.
7) This post is (TM) The Committee to Save the Endangered Malaria Mosquito (TM) Any infrigement on this trademark shall be prosecuted to the fullest extent of the law.
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
One area I've not yet seen discussed is that of XML Schema licensing. These are a huge, and as yet unappreciated, area of IP rights.
What is XML all about ? IMHO, it's both encouraging easy extensibility, and easy distribution of the resulting schemas between parties who wish to communicate.
BizTalk is a well-known example of a schema exchange medium, but what should be a perfect usage for a reliable and proven mechanism like GNU CopyLeft is actually a vague and poorly worded para that gives Microsoft the ability to do whatever they like with your work:
Publishers who upload or otherwise submit contribute schemas or other works to the BizTalk.org library grant Microsoft the right to display, store, transmit, make copies for archive purposes, create derivative works and make these contributed works publicly available in any way they please.
Now speaking personally, I will grant redistribution rights on my own creative work to Microsoft when they start granting theirs to me....
As another example, here's a snippet from the licence for XrML. The bizarre thing here is that my current project is so scared of the implications of this licence that we've adopted a clean room policy to avoid any possible impact on our own future development work - yet one of my coworkers is actually quoted and named on their site as being an advocate of the project !
Modifications to the XrML Specifications:
Subject to the terms and conditions of this License Agreement, ContentGuard grants to You the right to make XrML Modifications, provided that You:
Your License Grants to ContentGuard and to Other Licensees:
Subject to the terms and conditions of this License You grant ContentGuard and all other Licensees a world-wide, royalty-free unlimited license to use all XrML Derivative Works that You create. This license includes the right to use, copy and create Derivative Works based on the XrML Derivative Works. You grant to ContentGuard the exclusive right to sublicense XrML Derivative Works that You create.
Not exactly. According to Microsoft, you only have one license if you purchase, say, Windows 3.1 + Win95 upgrade + Win98 upgrade. So you can't steal Win95 and buy the Windows 98 upgrade to legalize your copy. However, if you want to sell your license, you would in theory have to unload Windows 3.1, 95 upgrade, and 98 upgrade together.
For more information, click here.
One of the biggest "gotchas" which is incredably common (essentially universal) is the disclaimer of all liability for damage resulting from poor software.
One minor but good example: Microsoft should be liable for damage caused by the Melissa worm, they have known about the problem of word macro vicruses for years (one of the first wild word macro viruses was on a Microsoft CD!).
Yet there is no class action lawsuit aganst Microsoft, due to negligent design of the software, which they KNOW was asking for trouble and providing an incredible breeding ground for viruses.
Nicholas C Weaver
nweaver@cs.berkeley.edu
Test your net with Netalyzr
You write a license with clauses A-G. Clauses A-C give the licensee a number of rights, while the clauses D-F seem to slightly restrict those rights and extract promises from the user to not sue the producer, not to cdriticize the product and not to use any word beginning with a vowel. The use of words starting with 'y' will be determined by the producer on a case-by-case basis.
Clause G then says that if any of those clauses is invalid, that clause shall be void but the rest of the license will still be valid. The producer then goes on to put little flaws in each of the clauses A-F to make them invalid, leaving only the restrictions and no rights.
Of course, this would never actually work if it is true as has been said that a license can only actually grant rights bu not take them away and that the worst that it can threaten is the revokation of those rights, which in this case are none. But now apply this to a proper contract and we have trouble. (or free cash, depending on how evil you are)
Logi - I can do anything, but not everything.
Jumpstart the tartan drive.
While not the worst I've seen, these two paragraphs appear to waive your right to pursue any sort of legal action against IBM even for situations where IBM knew about the problem in advance and did nothing. (Note that the first paragraph does allow a MAX of $100,000 if the software kills somebody. Unlikely for an e-commerce package, but I suppose anything's possible. In any event, you are still waiving your right to sue for more than the pitiful $100,000 they will give you in the event their product causes death. Also "tangible personal property" is covered under the same $100,000 umbrella, something of which there is very little of in the software industry. Everything at work here that we do is quite intangible.)
Circumstances may arise where, because of a default on IBM's part or other liability, you are entitled to recover damages from IBM. In each such instance, regardless of the basis on which you may be entitled to claim damages from IBM, (including fundamental breach, negligence, misrepresentation, or other contract or tort claim), IBM is liable for no more than 1) damages for bodily injury (including death) and damage to real property and tangible personal property and 2) the amount of any other actual direct damages up to the greater of U.S. $100,000 (or equivalent in your local currency) or the charges for the Program that is the subject of the claim.
IBM WILL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR SAVINGS), EVEN IF IBM, OR ITS RESELLER, HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
"All rights of any kind in WinZip which are not expressly granted in this License are entirely and exclusively reserved to and by WCI. You may not rent, lease, modify, translate, reverse engineer, decompile, disassemble or create derivative works based on WinZip. You may not make access to WinZip available to others in connection with a service bureau, application service provider, or similar business, or use WinZip in a business to provide file compression, decompression, or conversion services to others. There are no third party beneficiaries of any promises, obligations or representations made by WCI herein." pretty much a standard one but then it goes on to say "ANY LIABILITY OF WCI WILL BE LIMITED EXCLUSIVELY TO REFUND OF PURCHASE PRICE. IN ADDITION, IN NO EVENT SHALL WCI, OR ITS PRINCIPALS, SHAREHOLDERS, OFFICERS, EMPLOYEES, AFFILIATES, CONTRACTORS, SUBSIDIARIES, OR PARENT ORGANIZATIONS, BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES WHATSOEVER RELATING TO THE USE OF WINZIP, OR YOUR RELATIONSHIP WITH WCI." pretty scary that this makes them not liable for any crappy code. when people can get away with this kind of a license what intitiative do they have to protect the users?
Part of the bruhaha was Microsoft citing non-circumvention provisions of the DMCA in their letter to Slashdot. I got a mild kick out of reading that, when you put it together with the fact that circumvention does not become illegal until October. The only part of anti-circumvention that is currently in place is limitations on distribution of circumvention tools.
By their actions, Microsoft apparently turned WinZip into a circumvention tool illegal under the DMCA. For that matter, info-zip, pkunzip, gunzip and all of their ilk are also apparently illegal under the DMCA.
What if Microsoft had "protected" the MS-Kerberos spec with Rot13?
In the insurance world, aren't there some sort of minimum tests for protection, and aren't you required to make some sort of best effort to protect your property from theft or liability for injury of others? IMHO using a click-license stub on the front of a file that can be extracted readily with commonly available tools just doesn't qualify as protection.
Nor would using Rot13, which brings back to mind the original deCSS case. The encryption cracked to build deCSS was essentially a trivial 8-bit key, which would not be considered significant by anyone skilled in the art of cryptography. That indicates to me that they did not take sufficient efforts to protect their property. While that does not absolve the 'thief', it also means that the owner shares the blame. Isn't that the way it would work with physical property?
The living have better things to do than to continue hating the dead.
"C-5. YOU MAY NOT: create scandalous, obscene or immoral works using the clipart and photo images (Collectively referred to as the "Images")"
"H. Export controls: except for export to canada for use in canada by canadian citizens, the program may not be exported outside of the united states or to any foreign entity or "foreign person" as defined by the u.s. government regulations, including without limitation anyone who is not a citizen, national or lawful permanent resident of the united states. By using the program, you are warranting that you are not a "foreign person" or under the control of a "foreign person""
Do I own a loaf of bread?
Seriously. Do I own a load of bread that I buy? Can I examine it under a microscope? Can I run chemical tests on it? Can I run it through a spectrometer? A gas chromatograph? Can I reverse engineer the recipe and make exact copies of it? Can I sell the copies for profit and not pay anything to the original break maker? Is this legal? Is this illegal? Did I have to sign a license? Click one? Will anyone stand up and tell me that "clicks" are as legally binging as a signature? Legally binding at all? By clicking here you agree to pay me $10,000,000 or as much of that as you can and the debt must be inherited to spouses or offspring if you die until it's paid off at 500% annual intrest. Hey, you clicked it! It's a license/contract/agreement/whatever. You're bound. Yah sure. God the software lawyers are not just stupid but really lame assed stupid.
Dilbert reading to himself..."By opening this package you agree you will not make copies or export to despotic nations. You will submit to strip searches in your home..."
Last frame in cartoon just as Dilbert rips open the package, a large woman with a flashlight appears and starts to put on a rubber glove and says..."Frankly, both of us would have been happier if you had just walked away."
--
dman123 forever!
--
dman123 forever!
Filtering out the -1s and 0s since 1999.
http://www.itu.reading.ac.uk/misc/Mailing_Lists/ cpd/00000040.htm
Mathematica (Wolfram Research) is one of the two best symbolic mathematical programs around (I use both it and Maple), and its interface is specific to the operating system on which it resides. So when I had to change OS (market forces, not preference) I asked WRI if it was possible to rewrite my Mathematica license (same computer, same user, different OS), so I could stay legal and above board. Sure, they said, sign an application for change, pay a fee, and all will be well. OK, I said.
But I read the fine print on the form I needed to sign. It authorized WRI to search my home any time they wanted to, and required me to cooperate in their search, so they could assure themselves that I didn't still have a hidden copy of the previously licensed program. I pointed out that even the Director of the FBI needs a court order to search my home, and that requires convincing a court that there is a reasonable presumption that something incriminating will be found. So, after a certain fuss, they waived that requirement in my case. But when asked if they were planning to remove this appalling clause from their standard form, I got only "my supervisor is aware of the problem." A dime says it is still there.
Read the fine print.
All goods come with an implicit warranty for use; this warranty is protected under law. If I buy a pen, I have a right to sue (or more realistically, get my money back) if it doesn't write--that is, if it doesn't perform like a pen.
With OSS software, the most you pay for is a distribution--a tape, a CD--maybe a book. You can argue that you get the implied warranty on the software if you buy a distribution, or just that the implied warranty applies to the physical distribution (the CD actually contains bits; the tape won't tear in your drive). If an OSS distro has an implied warranty (courts can decide this; IANAL), that onus is on the distribution vendor, not the software authors.
If you download OSS software, however, the legal grey area goes away. You paid nothing, you get no warranty.
--The basis of all love is respect
Arguably, you should be able to sue your distro vendor when the code pukes, but even that is a legal grey area (are they really selling software, or just the ability to install it without downloading it off the Web?)
Why should Linus cover you if aren't paying him? that would make people responsible for unlimited liability with zero compensation.
--The basis of all love is respect
I have never seen a EULA that performed any sort of age verification (and it would certainly be difficult if not impossible) on the person installing it, yet the courts have upheld that the EULA is a binding contract. It is illegal to enter into a binding, legal contract with a minor, and the contact itself is null and void.
This in itself may be enough to get rid of UCITA, unless the courts would then make a parent or legal guardian responsible for their child's adherence to the EULA. However, the child is still "signing" the contract and contract law forbids children to sign...this "signature" of a mouse click is worth nothing because this isn't a real signature that can be: analyzed for age (ink can be dated rather well, especially black ink), checked for forgery through handwriting analysis, or proven by the security of a true electronic signature's password requirement, tamper-protection, and mathematical correlation with a registered profile. Anyone could have "signed" the "acceptance." The mouse button could have stuck or the cat walked on the Enter key while you were on the phone with your lawyer talking about the EULA. Who knows. It's worthless, and ridiculous overturnings of hundreds of years' of legal precedence such as this just highlights how clearly UCITA was a piece of legislation that was bought and paid for, rather than created out of a legitimate need.
-- Insert witty one-liner here. --
I'm not sure about the legal ramifications of this, but what would happen if that programmer were then sued and just lost the case on purpose? Would an appeal to a federal court be possible, with the eventual possibility of the supreme court overthrowing UCITA b/c it's unconstitutional?
This may be just a dumb idea. What do y'all say?
IANAL.. but...
The reason you don't have the right of first sale (#4) is because of what they say in #1... you are not buying their software, you are liscensing it. That's how they get around having to allow you to sell the software.
---
I hope you're not pretending to be evil while secretly being good. That would be dishonest.
If you use software from Network Associates, including commercial PGP, McAfee Anti Virus, and Gauntlet firewall software, you're subject to their EULA, of course.
But these products are often (or exclusively) used in corporate networks where the end users may have no knowledge of such licenses, or even be aware of the use of that particular software. And even if you examine the license, you might not know that...
As I understand the UCITA and DMCA, you're liable in some unspecified way if you, say, are a consultant evaluating the relative performance of NAI software for a client, or if you are contributing to a software purchasing decision at a company by writing an internal review.
This (somewhat relevant) bit comes from the rec.humor.funny archives. It's been floating around at least since 91.
Disclaimer to be used when purchasing software:
This check is fully warranted against physical defects and poor
workmanship in its stationery. If the check is physically damaged,
return it to me and I will replace or repair it at my discretion. No
other warranty of any kind is made, neither express nor implied
including, but not limited to, the implied warranties of Merchantability,
Suitability for Purpose, and Validity of Currency. Any and all risk
concerning the actual value of this check is assumed by you, the
recipient. Even though I or my agents may have assured you of its
worth, either verbally or in written communication, we may have had our
fingers crossed, so don't come whimpering back to me if it bounces.
The money, if any, represented by this instrument remains my property.
You are licensed to use it, however you are not allowed to copy the
original check except for your personal records, nor are you permitted
to give the money itself to anyone else. Neither may you allow any
other person to use the money. Remember, you may have it in your
possession, but it still belongs to me, and I'm going to call on you
from time to time just to keep tabs on it.
This agreement supersedes all others between us, including the equally
ridiculous one you have undoubtedly pasted on the back of your
packaging, or concealed somewhere in the middle of it. The location of
your version of this or any other covenant between us is irrelevant to
its inapplicability here. Only this one pertains, and I really mean
it. In fact, this one supersedes yours even though yours may say that
it supersedes mine. Why, even if yours said it would supersede mine
even if mine said it would supersede yours even if yours said... Oh
well. You get the idea.
You may decline this agreement by returning the uncashed check to me
within twenty-four hours. If you attempt to cash it, however, you have
implicitly accepted these terms. You may also implicitly accept these
terms by:
1) Calling my bank to inquire about the status of my account;
2) Thanking me at the conclusion of our business transaction;
3) Going to bed at the end of this or any other day; or
4) Using any toilet or rest room.
Please be advised that I have adopted a strict rubber-glue policy. Any
nasty thing that your lawyers say bounces off of me and sticks back to
you. Be further advised that you agree to pay my legal expenses if I
decide to sue you for violating this agreement or for any other reason
that might strike my fancy. Violations will be punishable by fine,
imprisonment, death, any two of the above, or all three.
Thank you and have a nice day!
"An unarmed man can only flee from evil, and evil is not overcome by fleeing from it." Col. Jeff Cooper
I bought an ATI Xpert 2000 a few months ago, and the driver CD was sealed with this notice: "By opening this seal, you agree to the license enclosed."
I tried to hold it up to the light, but I couldn't see through it...
Be nice to your friends. If it weren't for them, you'd be a complete stranger.
So the scary thing about these isn't just what it holds the user to, but what it fails to hold the issuer to.
--
This is not my sandwich.
Blade (short for Bladenc, short for Blade Encoder) is a free Encoder (I think just MP3) the creater got charged with violating the patents on MP3 technology, and Bladenc no longer exist.
Also, most have clauses now stating "You agree that any legal issues are subject to the jurisdiction of the Courts of Timbucktu", meaning in effect that not only are you supposed to consult a lawyer, but you have to consult one who knows the laws of Timbucktu. And you'll probably have to travel there if it comes to any legal proceedings. Just out of curiousity, which would win if the laws of the place where you live state that any such jurisdiction assignment clause is null and void?
-----
--
perl -e'$_=shift;die eval' '"$^X $0\047\$_=shift;die eval\047 \047$_\047"' at -e line 1.
C. PBI reserves the right to suspend or terminate the Service to you, or to suspend or terminate any userID, electronic mail address, Universal Resource Locator or domain name used by you, in the event it is used in a manner which (i) ... (iv) tends to damage the name or reputation of PBI, its parent, affiliates and subsidiaries; or (v) ... .
Their Acceptable Use Policy is explicit about this:
Supposedly, Internet service is provided by an "unregulated subsidiary" of the regulated telco, but there's very limited separation between the two on their web site. They both use the "pacbell.net" domain, for example.
I've often wondered about these liability waivers as I've been working as a software developer. My feeling is that no matter how well I build the product I'm responsible for, I would still need a fairly broad liability waiver in the license. There are too many aspects involved in running the piece of software that I would produce that are outside of my control. How can I provide a strong warranty for my customer when the OS, the compilers, the debugging tools, the 3rd party libraries I link with, etc. all may have their own set of problems with their own waivers. Any warranty that I could allow for in my license would have so many restrictions as to make it nearly useless and a nightmare to litigate.
(i) violate, plagiarize, or infringe upon the rights of any third party, including copyright, trademark, privacy or other personal or proprietary rights; or
(ii) contain libelous or otherwise unlawful material; and (b) that you are at least thirteen years old.
You hereby indemnify, defend and hold harmless NYTD and NYT WEB, and all officers, directors, owners, agents, information providers, affiliates, licensors and licensees (collectively, the "Indemnified Parties") from and against any and all liability and costs, including, without limitation, reasonable attorneys' fees, incurred by the Indemnified Parties in connection with any claim arising out of any breach by you or any user of your account of this Agreement or the foregoing representations, warranties and covenants. You shall cooperate as fully as reasonably required in the defense of any such claim. NYTD reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
I once wrote to the Times about this, and they told me that if I didn't like it I could subscribe to the print edition.
1.Our Rights: You hereby grant to us the right to distribute and use, on a non-exclusive basis, anywhere and everywhere in the universe, in any media, any sound recordings, compositions, pictures, videos, song lyrics and/or other content (collectively, the "Content") submitted by you to us. We shall have the right to use, market, store, distribute, reproduce, display, perform, transmit and promote the Content on a non-exclusive basis in any way we see fit (for example, as part of a site advertising campaign or marketing promotion) without payment to you. We may therefore, without payment to you, reproduce, distribute, publicly perform, publicly display and digitally perform and/or distribute the Content in whole or in part, alone or together with other material, on all media (including but not limited to CDs, the internet, other web sites, television and radio), and in any format by any means now known or hereafter devised (including but not limited to MP3, Real Audio, and Liquid Audio). No, that was not a run-on sentence. We will not, however, sell or license your Content to others (unless you sign a recording agreement with us). You agree that making your Content available to the public through our web site, the distribution of promotional CDs, and any other distribution or any use for promotional or marketing activity is not a "sale or license." We shall also have the right to use the Content in order to promote our products and services and to use the name, likeness and biographical material and any logos, marks or trade names of you or any individuals performing in your band or otherwise represented in the Content or the artist or band included or referred to in the Content without any payment to you or any other persons or companies. We reserve the right to publish new policies concerning the services provided by us and Content to be submitted by you, and you agree to comply with those policies.
Very cute- 'we don't have to pay you for anything for web distribution, as long as it is not sale or license, but you agree that any other distribution or use is ALSO not sale or license'
2.Ownership of Content: You retain full ownership of and all right, title, and interest in and to the Content, including any related copyrights, subject to the non-exclusive rights granted to us under this agreement. As this is a non-exclusive agreement, you are free to grant similar rights to others at any time, subject to this license, even after you agree to be bound by this agreement.
relatively unboobytrapped- for what good it'll do you. Note you aren't allowed to say farmclub uses your material- see below 3.Your Guarantees to Us: By accepting this agreement, you represent and warrant (that is, you guarantee to us) that: (a) you are of legal age to enter into contracts (you're not a minor). If any member of your group is a minor, you hereby warrant that you have the legal right to execute this agreement on behalf of the minor artist and have obtained all necessary consents and guarantee such person's performance of the terms of this agreement; (b) you have full right and power to enter into and perform this agreement, and have secured all third party consents necessary to enter into this agreement and to submit the Content as provided herein; (c) the Content is your or your band's own original work, and contains no sampled or replayed material or material otherwise created by someone who is neither you nor your band unless, prior to uploading the Content, you have obtained a license permitting the use as provided in this agreement of such sampled, replayed, or other material from the original author and/or performer and the current copyright proprietor of such material and/or the copyright proprietor of the underlying work; (d) the Content does not and will not infringe on any third party's intellectual property or other proprietary rights, or rights of publicity or privacy; (e) the Content does not and will not violate any law; (f) the Content is not and will not be defamatory, libelous, pornographic or obscene; (g) the Content does not and will not contain any viruses or other information which may damage or otherwise interfere with our computer systems or data or that of our visitors or other users; (h) all factual assertions that you have made and will make to us are true and complete.
You shall be fully responsible for any violation of your agreements including the representations and warranties made in this paragraph, and you agree to indemnify and hold us and our customers harmless from any and all damages and costs, including reasonable attorneys fees, arising out of or related to your breach of the representations and warranties described in this section. You are solely responsible for all licensing, reporting and payment obligations of all kinds in connection with the Content, its distribution and use (including but not limited to union or guild payments and any other third party payments of any kind). You agree to execute and deliver documents to us that we may request to confirm our rights under this agreement.
If we get in trouble you pay the lawyers- you are responsible for everything, we are responsible for nothing- oh, and if we ask for papers from you to prove we're not responsible for something, cough 'em up. But wait, there's more!
4.Managing Content and Disclaimers: In order to organize the music on our site for visitors, or for promotional or other permitted uses under this agreement, we will categorize Content that you submit to us. If we make an error in good faith in categorization or presentation of your Content, your sole and exclusive remedy will be for us to take all reasonable steps to promptly correct the error as soon as we become aware of it. That said, we have no obligation to review, edit or monitor any Content. We shall also have the right to review your Content and in our discretion, edit, alter, decline to post or remove any of the Content at any time and for any reason.
You acknowledge that our web site may from time to time encounter problems and may not necessarily continue uninterrupted without technical or other errors, and we shall not be responsible to you or others for any such interruptions, errors or problems or an outright discontinuation of our service.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT WITH RESPECT TO OUR SITE AND ANY SERVICES PROVIDED BY US.
We have no express or implied obligation to promote or distribute the Content in any particular manner or in any minimum quantities. Also, we make no representation nor warranty regarding your chances of getting a record deal with Jimmy and Doug's Farmclub.com nor the terms of such a recording agreement.
You do not have and we expressly shall not provide you the right to use any of our trademarks, copyrights or other proprietary information or property in connection with any activity, or to create any implied endorsement by us of you, unless authorized by us in our sole discretion in writing in advance.
We get to edit your music if you want. Suck it up and deal. Also we don't have to do anything for you at all, and don't even have to keep our website up and running. Oh, and don't go around IMPLYING that we ENDORSE you or anything! Know your place!
5.Termination: At any time 120 days after the date you first upload Content onto our web site, you may choose to terminate this agreement for that Content by sending an e-mailed request to removemusic@farmclub.com. Once we have received your timely request, we will delete the materials you identify to us as yours (e.g., songs and band records) from our system. Of course, we will not be responsible for, and need not take any steps to withdraw or terminate the future distribution of, any copies of any of your Content that may have been distributed (including by download) by us or from our web site before we removed your Content. Furthermore, Content submitted for purposes of ratings by Farmclub.com visitors will be removed from the listener ratings portion of our web site at the conclusion of a ratings cycle, although the Content will remain in Farm Club's system in the Jukebox until you have provided us a termination request as described above. We retain the right to continue any and all promotions containing Content, in whole or in part, initiated prior to the termination date. We reserve the right to terminate this agreement at any time by so notifying you; the agreement will terminate upon your actual receipt of our notice to you or three days after we have sent a notice of termination to the e-mail address which you supply to us in the registration portion of our web site.
You're stuck with us for 120 days no matter what. Then if you want to get out, you have to specify EVERY bit of material that you want us to stop using- except that if the material is being used for 'rating' by site visitors, tough luck, we keep it until the 'rating cycle' is over- oh, and if we started any sort of promotion, tough- we'll continue that as long as we want. Oh- and _we_ get to terminate you at any time on a maximum of three days notice whether or not you recieve our e-mail notice. But wait, there's more!
6.Damages: Except for a breach of Section 3 of this agreement, neither you nor we will be liable for any consequential, indirect, exemplary, special or incidental damages arising from or relating to this agreement (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or other pecuniary loss).
nobody's responsible, now read on...
7.Miscellaneous: This agreement shall be governed by California law, and all legal proceedings, if any, shall take place in California. This agreement sets forth the entire understanding and agreement between you and us and supersedes all previous agreements, communications, oral or written, between you and us. You represent that you have carefully read this agreement, that you understand its contents, and that you have had an opportunity to seek independent legal advice regarding the advisability of entering into this agreement. Whew! Enough mind-bending legalese. Let's post some music! Click the "I Agree" below if you agree to be bound by this agreement.
Guess what- by reading this and clicking through, you agree that you had a chance to seek legal advice about this horrific agreement, and chose NOT to! So you can't even weasel out by claiming you had no lawyer- you agree that you had plenty of opportunity and decided to represent yourself! See you in court, sunshine...
end agreement
I claim bragger's rights as the finder of the _worst_ clickthrough agreement on the Net :P to make matters worse, go and check out their 'summary' of this sometime. They encourage people to read the (legally meaningless) summary and skip the fine print. The summary doesn't even hint at all this garbage... evil, just evil evil evil...
1. The Product is licensed, not sold.
... If you wish to ... use the Product for more than one session on a particular computer, you must <b>purchase separate copies</b> of the Product for each such computer or session. </i>
<i>3.
If the Product is not sold, how can I purchase it?
The wording of this contract invalidates itself.
I've never used their software. Can I just make up some benchmarks? Or publish reviews based on information pulled out of thin air? Like, if I said that PGP took 4 hours to encrypt a file and GPG took 2 seconds, would that be OK?
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
Skimming through your comments:Well, yes.That's not what it says. It says that you can't run the program in more than one session at a time. Granted, that's a little vague, but most of us know what it means: You can't dodge the license by installing one copy on a multi-user Un*x system, and letting two hundred people use it at once. Oh, and as far as installing it on more than one computer, that's a standard feature of almost every license. (Although I notice that recent Microsoft licenses often let you install the program on both a desktop and a notebook.)Every license includes that clause. It's probably unenforceable.Again, every proprietary license that I've ever read includes that clause. Whether it's enforceable or not remains to be seen."Standard legal stuff" indeed. So why did you post it?
MSK
www.oldmanmurray.com/images/cgw.gif
OK, with that disclaimer out of the way, here goes. EULAs are not written with the specific intent to harm the consumer or certainly to upset the end user. EULAs exist to protect companies intellectual property from other companies. Companies do steal technology and ideas from eahc other. Yes, I said steal. Its a cut throat world these days and some people will resort to any measures they can to get an edge. To a much smaller extent, some provisions in a EULA exist to protect those same companies from the incredibly litigous world we live in now, and the never ending stream of ridiculous lawsuits that customers bring against companies (ie, the McDonalds coffee case and others). Its a sign of the times basically.
Even the GPL contains provisions (the no warranty clause) that are there to protect the authors of the software from endusers. Now, some EULAs contain clauses which are down right absurd, but you have to look at the intent behind these clauses and who it is that is writing them: LAWYERS!
Its a catch 22 situation (much like the awful situtation with patents) where you need powerful laws and ridiculously strong EULAs to fight back against the equally powerful lawyers out there to protect a companies hard work. PErsonally, I think alot of the problems would be solved if all companies were required by law to open source all their software. That way, the issue of stealing code from one company would be mitigated because you could not keep it a secret any more. It would also make it easier to determine if a patent is really unique (peer review) and if the reverse engineering methods used were truly legit. It would also be better for consumers and business because you could make your software work with other software more easily.
In short, the whole situation, like patents, is feeding on itself and the only solution is not to expect companies to make their EULAs more friendly to end users, but to get the laws rewritten so many of the clauses in EULAs are illegal and to do something truly revolutionary, like make open sourcing a legal requirement for ALL software, if you want to see any real change.
Until something dramatic happens, expect the laws to get worse and worse and the EULAs to get more and more draconian.
--
Python
Python
NT and 2k are supported now, but only if you buy a special hardware attachment
Two points...
A. The issue isn't whether or not it will work, the issue is whether or not you can legally use the watch with the aforementioned OSi
B. Their software was created for a particular platform (or two...). You changed platforms. Timex never guaranteed that their watch would work with any platform you had.
Slashdot denizens:
Write a killer trojan/worm/virus but put a license agreement in it. Have it play a stupid animation or something, you know the suckers out there love that crap. Have a pop up box that clears you of any responsibility, then have it infect every binary it can find, send itself to every email address on the hard drive, and start a DOS attack against www.microsoft.com. No problem, right? All you wrote was an animation, there must have been a couple of bugs though...
Scuttlemonkey is a troll
A. The issue isn't whether or not it will work, the issue is whether or not you can legally use the watch with the aforementioned OSi
:)
B. Their software was created for a particular platform (or two...). You changed platforms. Timex never guaranteed that their watch would work with any platform you had.
...which is the reason I labeled my post as "Topic Drift" and posted it without a +1 bonus.
Hmm. The Datalink watch is made by Timex. The PIM software was copyrighted by Microsoft. The Timex has kept on ticking (figuratively,) but the software has not. If I were clever I'm sure I could come up with some sort of joke about that
numb
The first critical issue is that it does not appear that I am allowed (as is protected by fair use laws, if I understand them) to make a backup copy of the software. If the CD is not required to run, I have to keep the CD itself as my only backup. This is hardly a "backup"-- I don't think that keeping only the original of something could be construed by anyone to constitute a backup. The paragraph in question:
And, of course, there is also the disclaimer that Microsoft is not liable for anything that should go wrong with their product. This application is simply a document set for training, and as such should be very straightforward. The *ONLY* thing I can think of that could go wrong with something so simple is an "interruption of business" if it fails to function as advertised-- yet Microsoft disclaims any liability for this! I couldn't help laughing (morbid humor, I guess...) at the section that restricts Microsoft's entire liability in this matter to US $5.00 or the cost of the software. My earlier post about an IBM license agreement pointed out a similar restriction, but at least IBM set their bar at $100,000.00. The section I am referring to:
One more for the road, guys. This paragraph bothers me because if the software is "likely to become" the subject of an infringement claim "in their opinion", they can revoke your license. These two conditions combined add up to "whenever sun wants", since you don't have to be either actually infringing at the present time or actually planning to infringe in the future. They merely have to say that you are to take your Java away. The paragraph in question is below, and comes from sun's web site when downloading the Java 2 SDK, Standard Edition 1.3.0.
7. Termination. Sun may terminate this Agreement immediately should any Software become, or in Sun's opinion be likely to become, the subject of a claim of infringement of a patent, trade secret, copyright or other intellectual property right.
This does not at all explain why they all have clauses along the lines of "no implied merchantability or fitness..." and "not to be considered a 'good' under Uniform Commercial Code..."
Nor does it explain the bizarre restrictions on use and copying, which seldom do the competition any good.
These clauses seem entirely about creating a special world for software: it can't be liable for performance like a good, it can't be resold like copyrighted material, it can't be reverse engineered like trade secrets, it's details need not be made public like patents, it need not be protected like trademarks. In short, any inconveniences due to the rights of anyone but the publisher are utterly discarded.
By the way, does anyone know who started some of these now-common EULA clauses? My money is on Gates, as he is the high priest of abusing intellectual property to monetary advantage.
"You can't get something for nothing." - my grandfather, on the stock market and Reaganomics.
http://grc.com/optout.htm
The above is a link to a software program that identifies and removes a particular program that loads when Windows starts. The program is made by Aureate/Radiate. It comes piggybacked onto shareware/adware programs downloaded from places like Tucows. It sends your browsing habits and other information back to a central server even when the programs they came with are not active. To make matters worst it is known to increase the frequency of browser crashes and tries to only be active when you are sending/receiving data to disguise itself. They sneak an agreement to allow this into the EULA. All of my machines were "infected" when I checked. Kinda scary.
Its also kind of like the tragedy of the commons in some ways. All the other companies are doing it. Its giving them a competitive edge so it forces other companies to do likewise. And its also turning into an arms race as all these companies add clause after clause into their products to protect themselves and to gain leverage against other companies they compete or do business with. I hate to use a cliche here, but the bottom line is the bottom line. Its business. The only way to stop it, IMO, is to legislate, and by that I mean to undo the damage that is the UCITA and all the other stupid laws and decisions that have made software into this protected class of goods.
The issues at stake here are that none of these clauses are illegal and the whole concept of software as a protected class of goods has somehow been accepted in the vernacular of IP attorneys as "pretty darn good idea!" It goes back my point, all of the EULAs are written by and for other lawyers based on bad laws. What do you expect? The engineers had no say in this law. The consumers had no say in this law. Its all attorneys and REALLY big software companies that drove this, like AOL which happens to be headquartered in the first state to enact the UCITA: Virginia. Its like a nuclear arms race at this point. The new laws make all these clauses binding and legal, and the wacky new EULAs are driving each other to create more and more clauses to protect the interests of the company that produced that piece of software. The UCITA and other laws were not written to put the consumer first but rather to put business first and not to even consider what it might do to the consumers.
The solution is to change the law. Until that happens, you can complain all your want about EULAs, but they're just going to get worse. Maybe if you're lucky you might be able to shame a company into changing their EULA, but don't count on it. Since there is no law against them, they're perfectly legal and perfectly binding. And thats the problem.
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Well, in all due fairness to Corel, I'm sure they're only including this section because of stupid encryption export laws. It's not Corel's fault that such laws exist.
If they did, they're misinterpreting those laws.
Remember, people on work visas use lots of other software that can't be exported, such as 128-bit versions of IE and Netscape, and US versions of Lotus Notes.
There are probably tens of thousands of folks working the US who use SecureID tokens, but are not US citizens.
Hell, some of them are *WRITING* the programs in questions. Last I heard, nobody was getting shut down for this.
Corel just effed up.
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