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."

Comments

I've got 2 of em.

[mr]

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.'

MP3.com licence

[chandler]

What bothers me are the licenses that I agree to without being able to read them - that is, they say I agreed to the license, but I never even saw it! Quote from MP3.com's license:

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.

Re:MP3.com licence

[cpt kangarooski]

No one owns copyrighted material.

In order to own something you must satisfy three conditions: (reciting from memory here)
1) You must be able to use the thing as you see fit
2) You must be able to control when and how others may use it
3) You must be able to dispose of it as you see fit (e.g. destroy, sell, give away)

Now then. Let us say that I have a brick. Do I own it?
1. Can I use the brick? Yes. I can build stuff with it, or throw it or stand on it, etc.
2.Can I control how others can use the brick? Yes. (although this is sketchy due to the nature of property as an artificial concept anyway)
3. Can I dispose of the brick? Yes. I can give the brick to you. Or throw it away. etc.

Thus I own the brick.

Now let us consider the BOOK Cryptonomicon, but not the STORY which the book (a tangible thing) contains.

1. Can I use it? Yes. I can read it, light a fire with it, wrap fish with it, store it in the privy for both reading material and toilet paper, kindle fires with it, etc.
2. Can I control how others use it? Yes, just as much as any other piece of property can be controlled.
3. Can I dispose of it. Yes. I can burn it, sell it, etc.

I own the BOOK Cryptonomicon.

But now let us consider the STORY within the book. If anyone has ever owned it, it would be Neal. Let us see if he has ever been able to satisfy these requirements (it's a given that I don't)

1. Can Neal use it? Yes. He can also read the story, gain pleasure from it, rewrite parts of it, quote it, etc.
2. Can Neal control how others use it? No. If Neal permits someone else to use it at all, ever, he cannot take the information back. The 2nd person will remember the story and Neal is incapable of doing anything about it. (other than lobotomizing the 2nd person or something but I doubt this is acceptable)
3. Can Neal dispose of it? No. Again, unless he can force himself to forget about it altogether, he can only give people copies. Whenever anyone reads the story a copy of the story is made from the book (itself a copy of the original in Neal's brain) to the brain of new reader. The original is never transferred at all, although the medium on which some copies are contained may be transferrable.

Thus Neal does not own the STORY Cryptonomicon.

Nor does the publisher. Nor you or I. Due to the nature of reality, the human mind and information it is impossible to satisfy the requirements for ownership when it comes to information.

Now then, as for your continued misconception of copyrights, it has just been proven that information is unownable. Even as pure thought it still cannot satisfy the final requirement for ownership.

US Copyright law does not change this in the least. It does not confer ownership of information. It never has, the copyright clause in the Constitution forbids it twice (which is pretty good for what is IIRC a single sentence) and it would be impossible anyway.

What copyrights ARE is: An exclusive right (for a limited amount of time, the intent being to promote the useful arts and sciences) to the copying of information under some, but not all circumstances.

You can see why this gets shortened to copyright; it concerns (some) copying (sometimes). Copyright cannot be extended to use.

When you copyright some material, what is happening is that no one else is allowed to make an additional copy of it. You hold the 'copy right.' (I bet you wondered why they weren't called licenserights. However, there are no small number of limitations to that right.

The reason that there are limitations is because the justification for having copyrights and patents too (which are wholly artificial - we already proved that information is unownable) is that it will promote the arts and sciences. In order to promote the arts and sciences though, the copyright must exist for a limited time. If it's too long, there will be no advancement because the tools or knowledge require for the advancement are not freely usable.

Imagine if Einstein had had to pay the heirs of Newton in order to do research related to gravity. Einstein would have remained a patent clerk and physics would have stagnated. Information is most valuable when everyone can use it to generate more information.

Other forms of fair use exist because it would be harmful to society if they did not. Copyright exists to help society. If copyright does harm it, it is copyright, not society that must be corrected.

So when you buy a copy of Cryptonomicon, the rights that the copyright holder has are quite limited. The only thing that they can do with the information that you can't do is reproduce it in ways that are not considered fair use (such as making a copy and selling it).

There is no license involved, other than the financial transaction between you and the bookstore that consists of: Here is money for that book.

Copyright holders copyrights are protected by law, not license. Your rights are protected by law which is required to favor you over copyright holders.

Why is this so difficult to understand? Have you READ 17 USC? They're the actual copyright laws. (Although they can be found unconstitutional. Only the copyright clause of the constitution itself is necessarily constitutional, despite conflicting with the first amendment) I'm still going through them - they're long as hell and a hard read - but they're pretty damn clear on this issue. Copyrights aren't licenses.

Thrown out...

[PenguinX]

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?

They're all evil

[EricWright]

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

"You agree to this...whoever you are."

[dazedNconfuzed]

An unaddressed issue with "click-wrap licenses" (and shrink-wrap, and "if you use this you agree...") is that it is a contract where the service-providing party hasn't got a friggin' clue who the other party is! How can I possibly be held to a contract by someone who has absolutely no idea who I am? Software makers produce a copy of a product (boxed or .ZIPped, sold (excuse me, leased) retail or downloaded), and that's it - they are not notified when the box is opened or "Agree" is clicked, have no idea who the user is that the product is licensed to, and don't even know if the product went straight from production to dumpster.

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.

How about Xing's license?

[gblues]

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.

MSSQL7 Internet Connector License

[TheTomcat]

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.

XML schema licences

[dingbat_hp]

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:

• provide ContentGuard copies of all XrML Modifications made by or on behalf of You;
• for any XrML Modification made by You which is incorporated by ContentGuard in a later version of the XrML Specifications, assign all right, title and interest in such XrML Modification to ContentGuard and agree that this License Agreement shall constitute such assignment; and
• upon written notice from ContentGuard, cease use of any XrML Modification which has not been incorporated into a later version of the XrML Specifications.

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.

Question: Do I own a loaf of bread?

[root]

The way mos EULAs are written you're left to wonder if you're really allowed to use the software at all. What right of mine preempt all EULA jargon? Archival copies (which is allowed and predates the DMCA legislation, the latter not having declared null and void the former, IIRC). So the question is what exactly can I do with stuff I buy?

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.

Wolfram want to search your computer today

[augustm]

From:Computer Privacy Digest

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.

Re:Easy example - Apogee

[phil reed]

McAfee's EULA forbids the publishing of benchmarks and reviews:

2. The customer shall not disclose the results of any benchmark test to any third party without Network Associates' prior written approval.

3. The customer will not publish reviews of the product without prior consent from Network Associates.

(copied and pasted from their FTP site greeting).


...phil