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FTC Will Study Software License Practices
This seems long-overdue -- if "licenses" are not comprehensible, what's the good in "agreeing" to their content? Though the deadline for comments is past, this page details the symposium, which will be open to the public. If you can get there, post your impressions here! The most important facts are these:
The Federal Trade Commission will hold a public forum on October 26 and 27, 2000 to examine warranty protection for software and other high-tech goods and services marketed to consumers.The public forum will be held at the Federal Trade Commission headquarters, 600 Pennsylvania Avenue, N.W., Washington, D.C. on October 26, 2000 from 8:30 a.m. to 5:30 p.m. and on October 27, 2000 from 9:00 a.m. to 5:30 p.m.
What I'd like to do is get a few industry "autographs" on the back of a sheet of boilerplate (in the same font size as comes on typical EULA stickers and such) that begins: "By signing the reverse of this document, you agree to have irrevocably and with full knowledge waived the following rights and privileges ..." Sorry bub -- you signed the agreement, what can I tell ya?!
But seriously, theres no way any of these licensces are legal anyways. As oft pointed out, these licensces are a legal agreement, legal agreements require contracts, signatures and notary publics. What about the "lack of communication" standard? What if a spanish speaker buys MS word? He can't read the document... what if I *PURPOSEFULLY* don't read it? (because thats exactly what I do;-) That legally constitutes "lack of communication"? I don't care what a little piece of paper says ... I bought the program, its mine :) ain't no one taking my monkey island :)
We have something similiar at the library at my university, a sign on the wall says "by using these facilities you agree to be searched by security personel" (I'm paraphrasing) ... that can't be legal either.
Free Techno/Jazz/DNB/MI Music by guys obsessed with monkeys!
And since any legal contract is not binding on a minor.... tee hee!
IIRC, one of the main points of UCITA is that liability is the 'default' state of software license, and that a EULA is required to relieve the licensor of liability. Hence, Bill, with his EULA's, will be able to evade liability, while Linus, without a EULA, will be stuck and liable.
Anything NOT worth doing is NOT worth doing well...
What if a spanish speaker buys MS word? He can't read the document... what if I *PURPOSEFULLY* don't read it?
What if my Nephew (who is 12) comes over and installs software on my computer..
He's a minor, so he can't legally enter a contract - I didn't install the software, so am I liable to uphold the EULA?
Another example: what if my wife installs something on my system? Am I liable to uphold the EULA? Again, I didn't install it, I didn't agree to anything, so I can then reverse-engineer (or whatever) the software even though the EULA 'forbids' it
One minor problem with this theory. Every retail store has a sign posted that states that they will not give a refund for opened software. Stores have the right to set their return policy. You therefore waived your right to a refund when you purchased the software.
MUCITA went into effect at the beginning of this month in Maryland. Staple's, Best Buy, WalMart, and OfficeMax still have signs saying that they will not give refunds on opened software.
A question you do not address is why the stores have a no refund policy. According to a lawyer at Staple's headquarters, the reason is that the software companies will not reimburse the store for any returns. If the store gives you the refund, they have to eat the cost.
This allows software companies to have it both ways. They can put the refund clause in the EULA so they can argue it is a contract while they know full well that the store can legally refuse to honor it. If the software comanies want the EULA to be a binding contract, they should include a clause in their reseller's license that says the retailer will honor the refund clause.
stop whining and get a lawyer.
Great idea! If you have been involved in a legal action, you would realize that it is not as simple as that.
Hire a lawyer for $100/hour to get a refund for software that cost $80. No lawyer will touch the case.
My girlfriend was involved in legal dispute over a $1650 claim. No lawyer would touch it or talk to her about it. One lawyer (who agreed that her case had merit) said that even if she won the lottery and was willing to pay his $200/hour fee, he would still decline the case. His reason was that he felt the judges and other lawyers, who he has to work with on a daily basis, would hold it against him for bringing such a trivial (the amount, not the merits) claim to court.
She handled the case pro se. For seven years, the opposing side fought to keep her from having her day in court. Two weeks before it was to actually go to trial, the other side settled for twice the amount of the original claim. (She had an unfair advantage. She had both the law and the facts on her side and it still took seven years.)
If you think it is so easy, why don't you try it and report back the results.
I feel like picking a fight with everyone who thinks they are right. - Rainmakers
Copyright law was modified in 1978 to accomodate computer software. At that time Microsoft was a *VERY* small company and had no influence in the industry.
I suspect IBM and the other computing giants at the time would claim that this wasn't Microsoft's innovation.
Here's a clue for you: Microsoft isn't the embodiment of all evil. In fact most of the software license ideas that they consider weren't originally their own ideas.
For example, the Mainframe and Unix markets have been leasing software for years. I used to have to pay something like a $5k/year license to use a popular Unix GIS package back in the early 90's.
Don't believe me, go look up a product called 'flexlm'.
It is a major reason why I dislike EULAs, but not the only reason. The 'no refund' policy just aggrevates the situation.
The software vendors are cherrypicking the parts of contract law and product law that favor them. They want the advantages of both while sidestepping the disadvantages.
They want the benifits of mass markets (lower distribution costs, bigger markets, etc.) without any of the disadvantages that come with retail sales (implied warrenty, refunds, etc.) They want the benifits of contract law (waiver of rights) without the cost of actually getting a signed contract before collecting the money.
Perhaps with a slight tweak so that it was required that either the place of purchase or the software manufacturer were required to give you a refund upon request, that might be enough.
One provision of MUCITA is that the right to refund can not be waived. It went into effect the beginning of this month. However, I noticed that none of the retailers have changed their return policies.
I feel like picking a fight with everyone who thinks they are right. - Rainmakers
hmm.. good idea.. should also work on a CD's jewelcase, although you will ofcourse need some spare cases to keep your new software in. the 'no criticism' clause smells like censorship to me.. that would mean an MCSE isn't allowed to give full advise on software. He cannot point out flaws or improvements. and he cannot compare features, since if another piece could do better in certain areas.. but he can't critisize the M$ product..
//rdj
No one can understand the truth until he drinks of coffee's frothy goodness.
--Sheikh Abd-Al-Kadir, 1587
Has anyone noticed that comment submissions were due on 11 Sept, 2000??? A load of good that does us!
Here in Quebec a distinction is made between person-to-person contract and user-agreement.
A large number of clauses are forbiden from the later. For example, if someone breaks into my box and cream my dsl-connexion, I don't have to pay for the over-limit megabytes of transfert. The law forbid to discard extra-contractual reponsability unless the contract is person-to-person.
The principle is fairly ovious. Pretty much the same deal as for spam mail: during the discussion leading to the sale, the company has so little work to do in comparison with the user (they amortize the legal composition fee over all sales), it just doesn't serve the invible-hand properly.
It seems so natural, I'm very puzzled it has not spread.
-
This post was compiled with `% gec -O`. email me if you need the sources
Also on the subject of EULAs, there's a good article here.
Damn subject line length limit.
READ the EULA *before* you purchased the software.
In my experience most shops won't allow software returns once the package has been opened. Fair enough, but you have to open the package, and often attempt to intall the software, to read the EULA, at which point - if you don't agree - you are still stuck with the software.
try IBM. they sell laptops with Corel Linux on em, or so their laptop page says (I was specifically looking at the T-series... may be different for other ones, and the IBM site gets pissy at Mozilla, so I can't give you a link). IBM should really be the first stop for anyone looking to install a non-MS OS on a laptop. I'm typing this on a Linux-running TP 570... it's beautiful. I don't even own any copies of windows anymore, besides the unused ones they won't give me a refund for!
Lea
True, but there were several differences between the mainframe licenses and the current EULAs.
I feel like picking a fight with everyone who thinks they are right. - Rainmakers
This is the biggest problem with EULAs. It mixes several different areas of law together. You are correct in your understanding of contract law. And, it would be valid if you bought the software directly from the software company. However, most purchaes are made from retail stores which are covered under a different set of laws. The retail stores have the right to whatever conditions they want on refunds.
The store's are covered under contract law because contracts can not bind third parties. The EULA states that it is a contract between the software manufacturer and you. The store is not a party to the contract.
Personally, I think that this is a way to get an EULA declared null & void in non-UCITA states. Buy the software, disagree with the license, unsuccessfully attempt to obtain a refund, do whatever you want with the software (as long as it is legal under copyright laws.)
IANAL and this has never been tested in court.
I feel like picking a fight with everyone who thinks they are right. - Rainmakers
UCITA is not a federal law. Blaming Clinton and Gore for that seems a bit much. As for the more people in prison, the vast majority of *those* are in state prisons; the number of federal prisoners is tiny compared to the number of state prisoners.
(And note that Texas has one of the highest incarceration rates in the country.)
The law is suppose to create a framework for living together. As for contract law, see my previous answear in this thread.
>Quotes like yours ...
are the surest way to the dismanteling of the constitution, and civil war. What should the law posititon should be on homesexuality, abortion, etc.?
As for the spirit and the letter. Corporate America is bound by law to do just that, it is called fiduciary duty. A 'moral' CEO that forgoes revenues in the persuit of the spirit of the law is liable and can be sued by the shareholders.
I don't always like it, but the difference between morality and law is real and is a deep aspect of societies like ours, you can't just shout it away.
I can agree that our society has lost a great deal of respect for an idea of public commitment ( which is an aspect.ct of morality.) And that is a serious problem, but it is not something that tough laws can mend.
-- look, cheese ahoy!
"[...] Here's your chance to tell the FTC what you think of UCITA (be nice :-)."
Hang the bastards!
What? What? I am being nice! I really want to have them dropped into a real-life Quake Arena III and taken out with plasma guns!
... geez, don't look at me like that ....
A truly excellent pizza parlor is a delight unto the heavens. Treasure the sauce and the toppings!
We don't claim Easyflow is good for anything. If you think it is: great, but it's up to you to decide.
If Easyflow doesn't work: tough. If you lose millions because Easyflow messes up: it's you who's out the millions, not us. If you don't like this disclaimer: tough. We reserve the right to do the absolute minimum provided by law, up to and including nothing.
[snip]
The punishment for making copies other than as described above can be horrible. Sffice it to say that you should keep your doors locked and look out for the HavenTree attack shark.
I still laugh when I read this.
Honestly, how could they not see that the UCITA is not in the best interests of the people? If they need our thoughts on it all to understand that, then this country is in far worse trouble than I thought. That being said, it is important that people share their thoughts with them, if not to help them see the truth, but instead to tell them that we see the truth, and that we aren't about to take it quietly.
One time I threw a brick at a duck.
Can I hold Linus responsible if my kernel crashes, etc
Don't worry, uncle Bill will never let this happen. Otherwise, he'll end up as the poorest man on earth within days!
Opus: the Swiss army knife of audio codec
I see a lot of people complaining that many (Microsoft's in particular) EULAs are unfair, too restrictive, etc. "Taking away the rights of the consumer." But no EULA that I'm aware of takes away the right of the consumer not to buy the product. In my world, if I don't like an EULA, I don't use the software. MS doesn't force their software down the throats of consumers any more than any other company does. The write it, they put it on the market, and people buy it - EULA and all.
To me this seems like going out and buying a new Porsche and then complaining about how expensive they are.
-- "Complacency is a far more dangerous attitude than outrage." -Naomi Littlebear
You can read the comments here. Most of the comments are in PDF format, many of the comments reflect the Free/Open Source community view of UCITA, among them are, American Association of Law Libraries, Institute of Electrical and Electronic Engineers, PHD professors, and of course Richard M Stallman. Perhaps things aren't so bleak after all! Perhaps the FTC will support consumer interest! There would be some embarassed politicians in two states if the FTC ruled against the major provisions of UCITA including the legality of shrink-wrap and click-through licenses, remote recall/disabling of software, liability for individual programeers, NO liability for commercial software developers, etc :-)
"Open code, in other words, can be a check on state power." -Lawrence Lessig
Agreement tends to mean that two or more parties are 'of like mind' in a certain issue. (i.e. Term of Use) How many humans do you know that can be of 'like mind' with a person who writes the typical click-through agreement or EULA?
Microsoft real advancement to the industry has nothing to do with software innovation... but rather License innovation. In a recent article, some microsoft programmers were drawing strong analogies between conditional branchesw of program code and conditional terms of Microsoft's software licenses, with the sense that licenses should be programmed in the future. Remember, when Microsoft got started in the 70's, people actually owned the software they bought... Microsoft helped 'pioneer' the idea that its use is merely licensed through obfuscated conditions of agreement.
Should we be thankful for this? I sure am not. Most lawyers have far more job security than I find comfortable. Why else would RMS be so nostalgic for the free software of old?
Secondly, what qualifies as software at all? Drivers? Libraries? Scripts? All of the above? These are questions that must be answered.
icqqm [ICQ:11952102]
With a few exceptions, no software is critical for anybody's survival. I didn't purchase Windows ME in order to prolong my life, I did it so I could play cool video games. And Bill Gates did not send large, burly goons to beat me up to get me to agree to the license.
I agreed to the license of my own free will, knowing the terms of it (I read EULAs), so I am ethically bound to abide by the terms.
My mom is not a Karma whore!
if you are posting on slashdot i dont expect perfect grammar and spelling. if you are sending a letter to the ftc to point out the down side of utica:
Please use a spell checker (ispell) and proof read it for grammar errors.
examples:
That is why a particular cannot license cannot be exempted without encouraging one over another.
from RMS
But they users were free to redistribute copies to others, and those others had no direct commercial relationship with Intel or with me.
john
-- john
That way more and more people can become convinced that there is something rotten at the heart of the entire structure that we have been taught to believe in.
This will leave the FTC in the uncomfortable position of having to come up with some truly innovative plausible lies to cover up what they are doing - or they will have to do the right thing. I'm betting on the innovative plausible lies approach - but they might be afraid of being too obvious if they take that course. Thus there is some possibility that they might wind up doing what is right - counting on the court system to 'require' them to do the wrong things as an over rule. Of course evil people are clever enough to realize that they can't win every fight, and that this might be one they allow us to win.
I'm really OK with UCITA myself. I seem to recall that the standard GPL has a disclaimer that no warranty is provided. If it doesn't, it's easy enough to add one.
Since all the software I use these days is GPLed, I really don't run into any UCITA related problems. I think that once companies realize the implications of the UCITA, a mass exodus to GPLed products will occur. Though the law probably wouldn't stand for too long anyway; once software companies start losing customers, they'll lobby to have it removed.
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
people keep saying that no lawyer would touch a refund because of bad license case due to the small amounts involved... there is an alternative, specifically designed for this... why has nobody considered going to small claims court and obtaining a judgement. once you have received a judgement, you are entitled to use the resources of the state to collect.
The only reason we have the rights we have is that people just like us died to gain those rights. -- Cheerio Boy
I want the refund for the Win98 and Win95 that I NEVERuse.
Fight Spammers!
Please explain to me where to get the refund if I do not agree to the EULA?
Fight Spammers!
I can't believe that there are no laws against that, governments are so slow to realize the implications of seemingly benign developments in the technology world.
Microsoft just 'innovates' new ways of use of their software and try to forbid them or 'tax' them.
It's so stupid, I mean if I buy a Ferrari (or a Lada in Microsoft's case) I can do with it what I like, I can take it apart, paint it purple, kick a dent in the door, use it to tow a trailer and many other things that it's makers probably didn't have in mind. No-one thinks anything about it because after all it would be *my* car right ? If Microsoft were to make cars, people would (because of the eula):
1. not be allowed to take them apart
2. not be allowed to upgrade them in ways other than microsoft allowed
3. not be allowed to fix them
4. not be allowed to buy them second-hand
5. not be allowed to drive them outside the city it was bought in
nobody would accept this, the government would make laws against it and there would be no problems after that, why doesn't the government realize what the software industry is doing ?
just think about how many legal problems jimi hendrix would have had if fender stratocasters would have come with eula's:
"sorry sir, setting fire to your guitar is not permitted by the eula to which you agreed by plugging in your guitar" "I also see that you are playing a right handed stratocaster left handed, this constitutes another violation of the eula"
The problem with click-wrap license agreements is that they are written as contracts yet ignore the entire purpose of contracts. The purpose of a contract is so that two groups can prove an agreement was made, in the event a dispute arises and/or one side broke their side of the agreement. However, with click-wrap licenses, it's impossible to prove that the person didn't extract the files and install manually without clicking "agree", and even if they did click "agree" they are usually unaware of what they are agreeing to, and therefore not really agreeing to anything. Clauses which enable the developers/distributors to modify the agreements without notice make consumers even less aware of what they are agreeing to, since they can't even see the contract they are supposedly signing. Also, while the consumers may not hold up their side of the agreement (license agreements often include rediculous restrictions that could never be envorced), the developers/distributors rarely hold up their side either (such as the statement that software can be returned if you don't agree to the license).
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A picture is worth 500 DWORDS.