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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?!
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.
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
"[...] 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.
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]
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
Please explain to me where to get the refund if I do not agree to the EULA?
Fight Spammers!
A very valid point. Besides most of these agreements violate the Consumer Protection Law (LPC) in several aspects, mainly:
- Agreements signed under pressure (nowadays most stores will NOT take back an open package of software, since you may have well just copied the CD). So you don't have a choice to agree if you want to use the software. This no refund policy is also illegal under the Consumer Protection Law, since the law clearly states you can have full refund within 10 days of purchase.
- They cannot be legally binding, since there is no way to prove that whoever clicked "Agree" is the same person that uses the software.
- There is also a provision that states that you own any product you buy, and that this right cannot be removed.
So we have pretty strong protections here, the only problem is, noone is acting to stop companies from using such agreements here, even though they are clearly illegal.
"I remember Y1K, every abacus had to get another bead"
But that's the problem. THere is a missing step in the feedback loop here.
You buy software, most people do anyway, thinking it's like 'buying' anything else.
Then, there is this 'eula', which most people just click on. THey have not got a choice! if they opened the software and installed it, they already know they can't take it back and return it to the store; it's opened. THe courts say you can't use it without agreeing to the license...
It's not that it's not logical, or doesn't make sense.. because it DOES.. the problem is it's not in the interests of the consumers to have things continue this way.
At a certain level, in any economy, there is a point where a society as a whole (government) must step in and say 'look , this is how things are going to be, because this is unfair to the consumer on a grand scale'.
As an example.. in the 60s and 70s, the consumer-rights stuff in Canada (yeah, nag all you want about socialisim). High-ranking members of even supermarkets were investigated and charged (just one example, it covered many busiensses) for something we see as normal today. Accepting schwag. Like 'Sure, I'll have my company pay a bit extra for 10,000 cases of Coke if you buy me a porsche'. It seems fair, right? BUT.... here's the thing.
IN a smaller town, the people inherently assume that the cost they pay reflects the costs to get the product on the shelves, and to run the business (and to make a profit, of course). In this situation, the cost actually reflects the owner buying a porsche, and, in effect, as these are *necessary* goods, the public *IS* being ripped off. I'm not saying I agree with this, or that it should be done today.. things are different now.. but..
Software is similar. There is an assumed 'contract' if you will, when you buy something in a store. You are exchanging ownership for cash. We also know this has nothign to do wiht 'intellectual property' rights of the product bing purchased; if I buy a car, ai *OWN* that car and can do what I want with it. I may still not be allowed to steal the design and start a car company.
Software is the same thing.. Joe Farmer thinks he is BUYING something, when really he is LICENSING it.
Hey... I can even show the RECEIPT, on the same receipt with all the stuff I bought, and it says *nothing* about licensing windows... it says I bought these goods at the store.
So what's with 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.
Lot's of things are immoral and perfectly legal. And lots things are moral or morally neutral and illegal.
abiding by Contracts is not a question of morality. It is a question of law. If I contract to sell to you my kidney, I am not bound to follow through, why? Because the law says so. Some contracts are enforceable, some aren't. The readiness of the judicial system to enforce contracts make them binding. And this readiness is a) decided according to principles of public good. b) payed by tax money.
So we have all the right in the world to make the claim that a certain kind of contracts should not be enforced by the government because a) we are or at least should be the government, b) we believe it is not in the best public interest that such contracts be enforced. If people still want to make and keep such contracts because of their personal moral beliefs, that is of course fine.
So the question is not whether it is the right thing for you to abide by the contract you agreed to. The question is whether UCITA contracts are a particular kind of contract and whether this kind raise issues of public interest that favor or disfavor enforcement.
-- look, cheese ahoy!