NY AG Sues Network Associates Over License Terms

An Anonymous Coward writes: "Excite is running an article about how New York is suing McAfee over what it considers a restriction of free speech because McAfee does not allow customers from publishing reviews without prior approval from McAfee. From the article: 'In one instance, Network Associates demanded a retraction of an unfavorable review published in the online and print magazine Network World, citing a clause on its Web site that prohibits product reviews without permission, the lawsuit alleged.'"

Comments

oh baby

[trollercoaster]

Thank you!

Re:oh baby

[returnofthe_spork]

Congrats on the excellent FP!

fp

[Anonymous Coward]

w00t

Re:fp

[Ralph Malph Alpha]

ha ha ha ha ha ha ha....yo mama, AC.

Where Eagles Dare

[The Lyrics Guy]

Iron Maiden - Where Eagles Dare

It's snowing outside the rumbling sound
of engines roar in the night.
The mission is near the confident men
are waiting to drop from the sky.

The Blizzard goes on but still they must fly
No one should go where eagles dare.

Bavarian alps that lay all around
they seem to stare from below.
The enemy lines a long time passed
are lying deep in the snow.

Into the night they fall through the sky
No one should fly where eagles dare.

They're closing in the fortress is near
it's standing high in the sky.
The cable car's the only way in
it's really impossible to climb.

They make their way but maybe too late
They've got to try to save the day.

The panicking cries the roaring of guns
are echoing all around the valley.
The mission complete they make to escape
away from the Eagles Nest.

They dared to go where no one would try
they chose to fly where eagles dare.

Oracle next?

[Anonymous Coward]

This is a statement found in many products, most notably oracle. You can't publish Oracle benchmarks without Oracle's permission. Hopefully these rules will be rendered moot by this case.

Re:Oracle next?

[dbc]

Well, consider that *perhaps* a clueless reviewer exists in the world. A company might at least want a phone call so that any totally-dead-wrong misperceptions can be corrected before the bafoon publishes slop that damages a good product. In the case of Oracle, very few people are even *capable* of running a TPC benchmark. TPC is extremely expensive and difficult to run and interpret. Oracle, quite simply, wants to head off bafoons. I assert without proof that bafoons are abundant... can you prove me wrong? Everyone that markets software soon learns of the bafoonery of overworked, inexpert reviewers on a deadline, and either learns to manage them or dies.

Re:Oracle next?

[uncleFester]

A benchmark is not a review. A benchmark is more of an objective test of the performance of an application which can be dependent on a vast number of factors, poor configuration being among them. There's a major difference between a review saying 'this program sucks' and a benchmark saying'this program sucks because it's slower than THAT program'.. the first one is pretty much purely subjective, but the second should have a basis of underlying equality of all factorts except the two actual components tested.

You can't just slap a comparision of Apache and IIS up somewhere and say 'because of unit frob, Apache performs better' without qualifying your goal of comparing apples to apples ("well, in actuality IIS was running on a 486 with 32MB ram.. but see? Apache was faster, wasn't it?"). Remember one of the first Netcraft IIS vs apache reviews where it was revealed Netcraft tuned the hell outta IIS but ran Apache on a stock RedHat (or some such) install? Didn't even tweak number of children or any such crap?

Vendors are perfectly in their right to oversee benchmarking their products in a comparative fashion to insure equality (even though in some cases that fact still gets lost in the shuffle).

Re:Oracle next?

[gilroy]

Blockquoth the poster:

Everyone that markets software soon learns of the bafoonery of overworked, inexpert reviewers on a deadline, and either learns to manage them or dies.

But then the reviewer gets a reputation for being clueless, people stop referring to his/her opinion, and the reviewer (or the reviewer's employer) suffers. Isn't that the way the supposed free market is supposed to work? Aren't restrictions like NA's more or less intended to subvert the market by removing information from the hands of customers?

Re:Oracle next?

[Anonymous Coward]

I assert without proof that bafoons are abundant... can you prove me wrong?

I assert without proof that I am superior to you in almost every respect. Can you prove me wrong?

Just because something cannot be reasonably disproven does not make it true.

Re:Oracle next?

[FatRatBastard]

You're absolutly correct about benchmarking and how they can be skewed by configuration, but you're dead wrong when you say

Vendors are perfectly in their right to oversee benchmarking their products in a comparative fashion to insure equality (even though in some cases that fact still gets lost in the shuffle).

if by that you mean they should have the legal authority to deny any benchmark that they don't approve of. That is akin to passing a law that states "you may only print the truth, and I get to decide what that truth is."

A company *does* have the right to set up its own benchmarking study to counter anyone else's that they feel is unfair. As a potential customer I want to be able to read as much about a product as possible. We the public are not stupid, and we should not be treated as such. I (and everyone else) am quite able to decide which benchmarking studies I am going to put the most weight on. Benchmarks that have no configuration data published with them get deep sixed. Benchmarks paid for by the company in question are met with a healthy dose of scepticism. Benchmarks from people/organizations that I have deemed fair (because of past work) I'm going to put more creedence in.

This is no different that real life. I don't need any law or licensing agreement to tell me which newspaper, columnist, TV station, author, etc I should "believe in."

Re:Oracle next?

[Anonymous Coward]

Yeah but at the same time most pc people evaluate the hardware purchases they make on reviews and benchmarks from the many sites out there that do this. If I want to run a benchmark on the same equipment sql server vs oracle and have an expert of each tune the database and one comes out ahead of the other... guess what. The losing party isnt going to want me to publish those results. Are they going to offer to help tune the system, no. They will just cite the license agreement. I am certainly familiar with database queries and am perfectly capable of publishing a valid benchmark comparing the 2 systems but the loser will sue and the winner wont care.

Re:Oracle next?

[Anonymous Coward]

These restrictions in database licenses are commonly called the Dewitt clause, history here .

In most old-style database sales, there is a negotiated contract, and one could argue that the clause in enforceable in that context. The case in question here is more of the shrink-wrap or click through EULA, which may be a harder thing to defend. Like, say, for M$ SQL Server.

Re:Oracle next?

[Anonymous Coward]

>This is a statement found in many products, most notably oracle. You
>can't publish Oracle benchmarks without Oracle's permission. Hopefully
>these rules will be rendered moot by this case.
>
>
Doubt it. Oracle benchmarks are a special case. You need to have real knowlege on how to perfom accurate benchmark tests,which rules out people like you. Network Associates's license terms on the other hand seems to exist only to prevent people from saying bad things about it's anti-virus software. Don't imagine for one second that Network Associates and the other anti-virus outfits wouldn't love to sue the people who publically dispute their claims about how their products can deal with the "ever growing number of Linux viruses." Of course they can't because few Linux people use their products and thus don't fall under the license terms.

Re:Oracle next?

[uncleFester]

if by that you mean they should have the legal authority to deny any benchmark that they don't approve of. That is akin to passing a law that states "you may only print the truth, and I get to decide what that truth is."

Sorry, poor clarity on my part. I agree with this statement; it's what I meant by being 'lost in the shuffle.' A vendor should be allowed to participate in setup/configuration for a benchmark, but then should also stand behind the results, good or bad. Refusal to allow publication based solely on the 'it will make us look bad' mentality is wrong... (imho) not criminal, but wrong.

Re:Oracle next?

[tom's a-cold]

Parent is flagrantly wrongheaded, and probably a troll. Let's look at another technology: presumably, following the same line of reasoning, you would say that a comparison test of two cars should not be allowed, since the testing conditions might not be controlled to the manufacturers' satisfaction? Or stereos? Or toasters? Or the service at a restaurant?

Sure, there might be some bad comparison tests, but the market for good information will weed those out. And only a moron would make a product choice solely on the basis of one half-assed benchmark that they read somewhere. But it's ludicrous to argue that manufacturers are the only ones that are qualified to discuss the performance or features of their products. Then on what basis would consumers then choose products? By reading vendors' marketing material? You cannot possibly be serious.

Re:Oracle next?

[Jumperalex]

To further bolster your argument, and show the falicy of the parent ... Let us consider automotive TESTING other wise termed BENCHMARKING.

When a magazine takes a car out to a testing ground to give us such benchmarks as 0-60 60-0, 1/4mile and handling numbers ... those are benchmarks. And yet the automakers have absolutely no "right" to prevent that from happening. Of course they also do not have to provide an early free sample of the car either and they are free to publish their own results to counter the original review.

So how come anyone thinks a software maker has the right to prevent benchamrking of their products. Of course test conditions of cars can effect results; that is why any REPUTABLE rag will define the test parameters. Just like any reputible software rag will also define the test conditions. Almost every decent hardware site I know of defines the test conditions and anyone reading a review where the test conditions aren't defined should wonder about the credibility of the report.

Just because you are MS, Oracle, et al doesn't mean you have some devine right of Untouchability.

The goverment should regulate EULAs

[DavidJA]

In .au, the goverment regulates Lease Agreements for housing, home building contracts, home buying contacts, finance contracts all to protect the consumer and give them a minumum set of rights.

Why don't the goverment do the same thing with software EULAs?

Re:The goverment should regulate EULAs

[digitalunity]

Most EULA's contain clauses which state that your usage of their software indicates your agreement to the formentioned EULA. A EULA is a legally binding contract, and if you use a companies software, you 'get your hands tied'.

I think one thing we all need to focus on are unreasonable terms, such as Microsoft disallowing the usage of Open Source software on .net or the public criticism of a software company. We need what you describe, desperately. I'm not a *big goverment* kind of guy, but there are times when intervention is necessary. Has anyone actually read a Hotmail agreement recently? You'd think that'd be enough to scare off any avid Microsoft fan; but I guess not.

Re:The goverment should regulate EULAs

[Anonymous Coward]

I don't know about you, but I have never signed a EULA.

Re:The goverment should regulate EULAs

[Floyd Turbo]

No problem. My EULA says that by selling software to me, a company agrees to be bound by my EULA, which also provides that I'm not bound by anything in the company's EULA.

Re:The goverment should regulate EULAs

[guiding_knight]

In the U.S., regulation would start by giving the end user some rights. It would then progress into taking those or other rights away, then standardized EULA's, leaving no room for a new licensing concept. Where would the GPL be today if this was already in place?

Re:The goverment should regulate EULAs

[EllisDees]

A EULA is only currently legally binding in two states, and it has never been tested in court in those.

Re:The goverment should regulate EULAs

[Sc00ter]

And that works how? First of, they're not an End User of you, you are an End User to them. Second, how do they get to see your EULA? And Third, if you email it to them and they refuse to sell to you, do you not buy the product.

Re:The goverment should regulate EULAs

[digitalunity]

I think most courts would find most EULA's within a companies right under current contract law. This would merely set the precedent for future cases in those states.

Moral of the story:
*Pick your fights carefully*
We don't want to set precedent against ourselves.

Re:The goverment should regulate EULAs

[mi]

NO! The government regulation is much worst than any company can do. You can always change the company. You can install FreeBSD and free yourself from Microsoft. You can switch to Symantec if you don't like McAffee. But changing government is a lot harder.

This case is a good example of the system working.

The government already regulates real estate leases in New York. And because of that the housing is notoriously expensive and of low quality. Do you want your milk-man to be obligated to sell you dairy? At the price set by the government? I come from the country, where this was the case, and as a result there was no milk in the stores.

I can go on and on, but I'll be modded up as a trolling flaimbait if I do. So I'll get back on topic. No government regulation, please. Thanks for your time.

Re:The goverment should regulate EULAs

[Sc00ter]

The biggest problem with this is that except for EULAs you usually get to see the contract before you agree to it. Most EULAs are inside the box and you can't see it until you open the box, and to top it off, most places won't accept returns on software that's been opened, so if you disagree with the EULA then you're out however much you paid for the software.

Re:The goverment should regulate EULAs

[DavidJA]

All of MS's software says that you need to agree to the EULA before using, and if you don't agree to the EULA you should return the software for a full refund.

I remember buying a copy of MS Office 97 developer, opening the box and not likeing the license, taking the software back to where I got it from. The manager was not happy, but I just showed him the part on the box saying I could return it, and he had no other choice.

If the box says you can return the software, then under .au consumer law, you can. (don't know about how this works in the US tho)

Re:The goverment should regulate EULAs

[Anonymous Coward]

Calm down. Have some dip.

Re:The goverment should regulate EULAs

[Anonymous Coward]

"But changing government is a lot harder."

Oh right, I was under the impression you voted for your government every 4 years.

Re:The goverment should regulate EULAs

[cpt kangarooski]

But the degree to which a EULA is binding is a question that can only be answered by the courts -- not MS, or the end user.

They've found contracts void for various reasons before, and they'll do so again. Already there are rumblings about how EULAs might not be contracts at all.

There are limits to the right of contract, after all.

Re:The goverment should regulate EULAs

[digitalunity]

Here is a summary of a portion of the Uniform Commercial Code(UCC):

The Mass-Market License. The license is the agreement that gives you the right to use the software (or other information). A mass-market license is a standard-form, non-negotiable, license.7 For example, consider a mass-marketed word processing program. A company that sold (licenses for) a million copies of a $100 program could not afford to negotiate a separate contract for each. The price would have to rise to reflect the cost of all the bargaining. Instead, companies use standard-form contracts. The UCC8 provides some protections from unfairly one-sided terms in the forms. Additional protections come from consumer-protection laws passed by the Federal and State Governments. Consumer protection laws are confusing because the definition of "consumer" varies. A self-employed professional writer could probably treat Brand X Word Processor as consumer goods under the Federal Magnuson-Moss Warranty Improvement Act9 but not under State law definitions that restrict "consumer goods" to those bought for personal, family or household (but not any form of business) use. The mass-market license concept skips this confusion by treating everyone who buys a product that has a mass-market license in the same way.

[/summary]
This is supposed to keep us from being bound by unfair agreements. It, obviously isn't doing it's job. However, it could be cited in cases involving software contracts, seeing as the UCC has been passed in part, or in whole, by all 50 states.

Re:The goverment should regulate EULAs

[digitalunity]

Right. Scroll down and see my next comment.

Re:The goverment should regulate EULAs

[DavidJA]

I don't agree. Granted I don't live in NYC, but

The government already regulates real estate leases in New York. And because of that the housing is notoriously expensive and of low quality

So if a landlord is allowed to increase rents whenever he wants, discriminates against minories, never fix a broken hot water system all without goverment regulations do you think they won't? Of course they will!

If car manufactores were allowed to build shit/dangerious cars without regulation, would they? Of course they would!

If software compaines were allowed to put whatever they want in the EULA would they? they do already!

For me, BSD is not an alternative, the same way that living under a bridge is not an alternative to a rental property. (nothing against BSD).

Computers have gotten to the point that they are an essentual service, and as such, the unfair conditions the compaines like MS and McAfee put in their EULA's should be regulated.

Re:The goverment should regulate EULAs

[mi]

Oh right, I was under the impression you voted for your government every 4 years.

Pathetic anonymous troll. I can switch from McAfee to Symantec several times a day -- not once every 4 years.

Besides, as we both know, the laws don't change every four years in this country. We like stability here, you know, and we pride ourselves with the system of checks and balances, so the biggest trouble with the government is when some corporation goes bust or when a president is cought lying in a sexual harassment case...

Regulating even more things by the government, things that are perfectly within the domain of already existing laws, would extend the nasty trend, which should be reversed. But neither the extension nor the reversal is going to happen immediately (or even withing four years).

Re:The goverment should regulate EULAs

[Anonymous Coward]

NO! The government regulation is much worst than any company can do. ... No government regulation, please. Thanks for your time.

One thing you might want to consider is that the only thing that puts teeth into EULAs in the first place is government regulation.

Think about it. If you break an EULA, the only practical responce the software company has is to sue you or get an injunction in court- that is, get the government to slap you upside the head.

If the government wasn't involved at all in EULAs, what course of action would the software companies have? Send you a nasty letter? Stick their tounge out at you? Take their ball and go home? Without the government sanctioned court systems, EULAs would be worth less than the paper they are printed on. (doubly so for click through licenses).

Do you want your milk-man to be obligated to sell you dairy? At the price set by the government?

Do you see the difference now? In your (straw man) example, you have the government forcing you to do something. ("Sell him milk or I'll shoot you in the head.") Whereas, prohibiting non-defamation clauses in EULAs, the goverment is refusing to use force on you. ("I don't care that he called your product a piece of dirt. I'm not spanking him.")

To make it clear, if the government makes it illegal to put non-defamation clauses in EULA, there is nothing preventing a company from putting one in the EULA. It's just that when the company takes you to court on breach of contract, the court will laugh and tell them that such clauses are uninforcible. (You've seen the "If any part of this contract is found to be invalid, the rest of it remains in force" style clauses in EULAs haven't you? Why do you think they are there?)

Re:The goverment should regulate EULAs

[Anonymous Coward]

A EULA is a legally binding contract

Wrong.

First, a contract is a document negotiated between two parties. Since EULA's are not negotiated (in any sense of the word,) they are not contracts.

Second, whether they are legally binding or not is entirely up for debate.

Re:The goverment should regulate EULAs

[J'raxis]

Minor technicalities. Rename your license a Software Vendor License Agreement or something. And include it in the HTTP request when you download their software. About as much chance of someone at the download site seeing that as an end-user having read the complete EULA during an install, right? Click, click, click. :)

Re:The goverment should regulate EULAs

[WNight]

EULAs violate general contract law in many ways, that's why companies are trying to pass the UCITA, they know that without it their EULAs are worthless. They wouldn't waste time on a law that didn't help them.

By the time you see an EULA you already own the software. They withhold your right to use it until you "agree" but that's really extortion. They offer your the right to use the software, but it's not theirs to offer which means they're not offering you anything. There are other issues with it, these are just the two most obvious.

Remember, they're pushing for the UCITA because they need it.

Re:The goverment should regulate EULAs

[digitalunity]

You fail to see one major difference between regulation types:

Those, where the consumer has a choice:
*software*,food,housing,movie theatres,car manufactureres

Those, where the consumer has no choice:
gas,water,sewer,electicity!($$$),gasoline

When the customer has a choice, often competition breeds excellence; producing a better product. However, when the recipient has no choice, there is no motivation for improvement. Unfortunately, microsoft has been in the "No choice" category for years, letting them do almost anything. When people start to get more viable choices, again, market competition will start to affect them.

Re:The goverment should regulate EULAs

[digitalunity]

Wrong. The UCC, passed by all 50 states says that a form-agreement is a type of contract where you get no negotiations. Either you accept, or you decline.

The legally binding part is untested, however, for the most part; I'd think they'd be found legal. There are few clauses which I think would be(or should be) found illegal.

Re:The goverment should regulate EULAs

[mi]

So if a landlord is allowed to increase rents whenever he wants, discriminates against minories, never fix a broken hot water system all without goverment regulations do you think they won't? Of course they will!

May be, they'd do it to you -- in return for all the hatred you just exposed. But generally -- no. They'll go broke if they do.

If car manufactores were allowed to build shit/dangerious cars without regulation, would they? Of course they would!

This is too stupid to deserve serious refutal. You are taking the wrong side of a very old debate, and you are doing a disservice to side you are taking.

Have you heard of free market? You know, the most efficient basis for economy, that's known so far...

It is not "living under a bridge", that's an alternative. It is moving out and renting from a decent landlord.

The cars you buy are decent not because the government regulates their quality, and not because corporate execs are angels, but because the manufacturers compete with each other. Making bad cars is just bad business.

If you don't like a software's EULA -- you get someone else's software. If there is nobody else -- well, than there is no way to make it then, otherwise. This may not be perfect, but the government involvement is worse -- just look at tax code, for example :-)

Now, the AG's action is right, IMHO. It would've been better, if a private party sued Network Assosiates (like that professor suing over DMCA), but this is good enough. AG is not writing any new law, and he is not aiming to regulate. His goal is to get a particular wrong righted -- based on an already existing law -- and I root for him.

Re:The goverment should regulate EULAs

[WNight]

Gotcha, the system sucked in other countries so if we have government regulation, we'll end up like those countries.

Maybe those other countries sucked because the people in power were murderous tyrants, not because they passed laws.

It's like pointing to China and Russia as examples that prove communism is bad. They were totalitarian regimes and would have been, regardless of the label they used. It's irrelevant and proves nothing. It's like pointing to the US as proof that capitalism is good. (The US isn't capitalist, and it's too small of a sample size to be meaningful.)

Re:The goverment should regulate EULAs

[mangu]

if a landlord is allowed to increase rents whenever he wants, discriminates against minories, never fix a broken hot water system all without goverment regulations do you think they won't? Of course they will!

Why should they? What do they profit from being obnoxious? If there are _other_ landlords willing to rent housing, you bet they won't. Would you, if you were a landlord in a competitive situation?

the unfair conditions the compaines like MS and McAfee put in their EULA's should be regulated

They *are* regulated already! Haven't you heard about UCITA and the "Millenium Copyright (tm)"?The problem with regulations is that, for big corporations, it's far too easy to buy the regulators. As the Romans said, "Quid custodia custodiam" (sp?), or "who regulates the regulators"?

Re:The goverment should regulate EULAs

[digitalunity]

Absolutely. I think that the Uniform Commercial Code that everyone pretty much hates, has few good parts that may help protect us. Try reading back a couple of my previous comments on the issue. I really hope UCITA dies a painful and public death(in court, I want the icing on the cake too!)

A while back, there was a case of people buying computers, rejecting the Win95orWin98(?) EULA, and then returning it to microsoft for a refund. To my knowledge, they got their money back.

Re:The goverment should regulate EULAs

[Froobly]

Oh yeah? Well my EULA can lick your EULA any day of the week!

Re:The goverment should regulate EULAs

[mi]

Those, where the consumer has no choice: gas,water,sewer,electicity!($$$),gasoline

(Wondering off-topic a bit further.) Right. And to improve gas, water, and other things, they need to be de-nationalized. Properly, though, not like they tried to do in California ;)

(I'm surprised to see gasoline listed there. Here, in US, oil product market seems quite competetive...)

Re:The goverment should regulate EULAs

[Rude Turnip]

"The cars you buy are decent not because the government regulates their quality, and not because corporate execs are angels, but because the manufacturers compete with each other. Making bad cars is just bad business."

Hey, if I'm killed in a car accident due to a poorly manufactured car, how do I vote with my dollar then?

Re:The goverment should regulate EULAs

[digitalunity]

Oh, forgot to mention, in this case it wouldn't be extortion, really. It'd be 'barratry'

BARRATRY - The practice of instituting groundless judicial proceedings - a crime in a number of jurisdictions.

The interpretation that even the =-Threatening-= of legal proceedings is correct.

Re:The goverment should regulate EULAs

[mi]

Hey, if I'm killed in a car accident due to a poorly manufactured car, how do I vote with my dollar then?

So, you'd prefer to have to call the hypothetical "Federal Car Quality Enforcement" office in that unfortunate case?

Neither way will give you absolutely best cars. But the competition of a free market gives you better cars. Choosing the one, that will not kill you too easily is left up to you.

Re:The goverment should regulate EULAs

[oyenstikker]

"who regulates the regulators"?

why, the meta-regulators of course!

you get on your soap box and say "the regulators stink!" you haven't changed the regulations, you've only given the regulators a bad name(bad karma). then you go somewhere else (kur5hin).

Re:The goverment should regulate EULAs

[digitalunity]

Yes and no. In the US, OPEC would appear to have a stranglehold on gasoline. However, if you look at the *absolute* price of gas in relation to everyone else, we pay the lowest premium for gasoline of any developed country in the world.
It is a near monopoly, however, There are really only a few(counted on one hand) producers of gasoline that are nationally recognized brands.
So yes. Are we both correct? :) I think so.

Don't even get me started on California...
My father works as a real-time power scheduler for Bonneville Power Administration. He is responsible in part for charging the Californians so much. He talks to those who negotiate the prices for electiricity to be delivered to the California ISO. Them Cali's are getting reamed for the watts!

Re:The goverment should regulate EULAs

[Suppafly]

Easy.. just send them an email asking that they agree to your end vendor license agreement, and if they don't they need to ensure there is no possible way for you to buy their software.

Re:The goverment should regulate EULAs

[Kwikymart]

I never read any software EULAs or sign them. Also, my mouse and keyboard just randomly malfunction whenever I am asked if I agree to the terms or not. Somehow "I agree" always gets chosen for some strange reason (which is completely out of my control). I consider all EULAs void because such an even is possible. It would be quite strange for that to happen in a real life contract where you go into a seizure and accidently sign your own name on a contract which happened to lie before you.

Another thing that would be harry is on software EULAs when they say that if you agree, you cannot decompile or disassemble the software. What if you disassembled the software before you agree to the license agreement, remove it, then assemble it again?

Re:The goverment should regulate EULAs

[(outer-limits)]

Don't stop there, this is a very interesting topic, about which there has been a lot of opions but little facts. What exactly happened there and why?

Re:The goverment should regulate EULAs

[GorgarWillEatYou]

I'd prefer to be ABLE to call the office. It's a bit hard when you're dead. Same case both ways.

Re:The goverment should regulate EULAs

[(outer-limits)]

The free market is a myth, like free beer and free speech and a share market that never goes down. It is something that can be approximated, or hoped for, it never really exists, though. Ask all the Enron pension holders, for example. Why is it that a $200,000 house is four times better than a $100,000 house. If I am poor and desperate for some food, I can't hold off till next week to buy some, I have to take what I can now. A free market, ideally, has two people negotiating from an equal position. This often does not happen. A pawn shop sells heaps of crap for nearlly full retail price. Why? Because a poor person who cannot afford the extra $50 for the new item has to make do with a used one for nearly as much.

Competition often goes awry. Businesses go broke, which is good for competition, bad for those depending on them for health insurance, pensions, home payments etc. Governments arn't perfect either, but at least those of us who bother, change them when they stuff up too much. Many company boards are just old boys clubs, even worse, old boys clubs with the Govt, what is worse, a president who is 'friends' with someone too young for him, or one who is a friend of 'Kenny-boy'?

Re:The goverment should regulate EULAs

[(outer-limits)]

So why was it such a revelation for Ralph Nader to turn up the Ford Pinto as such a piece of rubbish. I think it is vital point out that consumerism only works when you can make a dispassionate, (ie, not overly influenced by advertising) informed choice.

Re:The goverment should regulate EULAs

[digitalunity]

Basically, I can't tell you.
Sorry.

:(

Re:The goverment should regulate EULAs

[(outer-limits)]

Free speech at work.......

Re:The goverment should regulate EULAs

[digitalunity]

Basically, not free speech. The things I've been told could be privledged information. I'm not sure. I may not have the right to know the things that I know.

Re:The goverment should regulate EULAs

[MindStalker]

In New York they can't increase the rent on you, so you have little old ladies who pay 20 bucks a month for an apartment. Do you think the landlord can survive that way? Of course not, so they have to make the prices insanly high for new residents, to cover there cost. Whenever government sets prices lower than market, you mess up with the supply/demand and you end up with more demand, and less supply (because less people want to sell a product they can't get a resonable price for.) Therefor an unstable market.

Re:The goverment should regulate EULAs

[Galvatron]

Huh? This is very poorly argued. I will agree a little bit with the idea that free markets almost never exist in a "pure" state. There is nearly always some sort of externality or imperfect information which will be controlled for to some extent. That being said, markets can be and in many cases are still very free.

Enron committed many crimes. The corporate heads will be spending time in jail, rest assured. That may be small comfort to those who lost their pensions, but as with any crime, what can you do? A murder victim may not care that his killer gets the chair either.

A free market does not ideally have two people negotiating from an equal position. Indeed, most economic models start with the assumption that neither the buyer nor the seller has ANY POWER WHATSOEVER by himself. Check your corner store, how much do they sell soda for? Say $1.05 for a 20 oz coke. Check every store in your neighborhood, I bet none sells it for more than $0.10 different than that. Neither you, the consumer, nor the store owner has enough market power to force an increase or decrease to that price. Even the almighty Coca-Cola company cannot raise prices more than a few cents for fear that people will buy Pepsi instead. As for pawn shops, I personally have never even seen one (and I have lived in very poor neighborhoods), so my guess is that the business model of selling used goods is simply not economical, poor people will generally either wait until they have the extra $50, or they will do without. Hence, what you're seeing is just the last efforts of a dying business to remain profitable.

As for $200,000 houses being 4 times as good as a $100,000 house, this has not been my experience. My experience has been that the marginal utility of each additional dollar spent decreases. So just getting a roof over your head provides tremendous benefit, ever try sleeping on the street? Beyond that, adding extra rooms pales in comparison. So maybe you meant a $200,000 house is 4 times as large, or 4 times as pretty? Still not the case in my experience, but maybe that is true in some areas.

Your second paragraph makes no sense to me. "What is worse, a president who is 'friends' with someone who is too young for him, or one who is a friend of 'Kenny-boy.'" I seriously don't get what that means, care to explain?

Re:The goverment should regulate EULAs

[drzhivago]

What about software that comes preloaded on that new fangled computer you just bought? Sure the OS makes you click an "I agree to a bunch of legalese that means nothing to me" but not every app that is preloaded forces you to do the same.

Greg

Re:The goverment should regulate EULAs

[(outer-limits)]

Kenny boy was the term of endearment that GWB used to use for Ken Lay, of Enron.

These pawn shops are not dying, they are part of a chain that is booming.

Sellers often do have power, eg, the power to pursuade, to exploit legalisms, to peddle influense, etc, all bought with dollars.

A few token heads will roll from Enron, but the real problem, abuse of power and the market, has not been solved.

Housing is an ideal example of the 'marginal utility' not reducing, and hence the poor losing out. A house that costs twice as much is four times better in terms of space, quality, location, state of repair, etc. That is because there are much less people buying in that range than there are at the bottom end of the market.

A can of Coke is very interesting, as it might sell for $1 in your country, (here it sells for more than that, another interesting facet of 'free' markets), but the actual contents are only worth about 5 cents.

One also has to ask, how free is your market system when millionaires are paid millions of dollars in subsidies for products such as sugar, etc. Just as will they aren't single mothers.

Re:The goverment should regulate EULAs

[fanatic]

If you don't like a software's EULA -- you get someone else's software. If there is nobody else -- well, than there is no way to make it then, otherwise.

Never heard of a monopoly, eh? Or you're another one of these assholes that thinks that the market will solve everything, and that antitrust law is just wrong. Sorry, but once a company gets enough market dominance to blackmail distributors/OEMs who want to deal with competition, the free market is out of luck and some other mechanism is required. I happen to think that right now big business is much more dangerous than big government.

Re:The goverment should regulate EULAs

[Galvatron]

Kenny boy was the term of endearment that GWB used to use for Ken Lay, of Enron.

Ah, okay, that clears things up a little at least. Regardless though, GWB didn't lift a finger to keep Enron from going under, so obviously they didn't buy as much influence as they thought, eh? Also, as dismissive as you are of "token heads" rolling at Enron, just think about this for a moment. You're a millionaire head of a major corporation one day, and a few months later, you're IN JAIL, with most of your money taken away for insider trading. That is a huge disincentive to do this kind of thing, and you can already see other companies are scared, and doing the best to clean up their books.

What country are we talking about, anyway? That could substantially alter our discussion. Different countries have vastly different regulatory environments, which can make a big difference.

Sellers only have power if there are few sellers, or if they are very well organized. This gets into oligopolies or collusion, both of which are generally illegal in capitalist countries.

Alright, more on housing. I still argue with your basic premise that a really big house is anywhere near four times as good as a small house. I would pay almost everything I own for a small house, but if I had a small house, I would not pay almost everything I own for a much bigger house. The marginal utility has gone down dramatically once that roof gets put over your head. Furthermore, you're making a fairly obvious blunder when you threw in "better location." What makes a neighborhood good? Rich people live there. I think what you're talking about is that a house in the inner city that costs half as much as a house in the suburbs may be only 1/4 the size. As well it should be! Cities are densely populated, and hence land is expensive. Suburbs are sparsely populated, so land is cheap. The tradeoff is that people in the suburbs have to commute farther, a tradeoff that the wealthy are willing to make, but that the poor are not.

Who cares what the manufacturing costs are? It would cost YOU more than $1 to make a soft drink (especially once you consider opportunity costs), and that's mainly what's important. Besides, in the soft drink industry, most of the value added is in advertising, more glamorous images make people happier to drink soda, so they're selling an emotion as well as a drink.

You're right, the government pays too much in subsidies. Subsidies should be abolished, thereby making markets more free. I wholeheartedly agree on this point.

Re:The goverment should regulate EULAs

[DavidJA]

OK, seriously O.T. but...

In New York they can't increase the rent on you, so you have little old ladies who pay 20 bucks a month for an apartment. Do you think the landlord can survive that way?

In .au you can only increase rents once per year, and only if the fixed term of the lease agreement has expired. You also can not increase the rent by an unfair amount. What's unfair? If the tenant thinks it's unfair then someone from the Office of Fair Trading comes along and makes that decision.

Now getting back on-topic. What you have just demonstrated is that goverment regulation, when not well thought out (aka the New York rental market) is a BAD thing. But goverment regulation which is well thought out (aka the .au rental market) is a good thing.

Therefor, goverments should regulate terms of the EULA, as long as the regulations are well thought out.

Re:The goverment should regulate EULAs

[DavidJA]

Pathetic anonymous troll. I can switch from McAfee to Symantec several times a day -- not once every 4 years

...and you can switch from Microsoft Office XP or Windows to....

That IS the point. Microsoft has created an illegal monopoly, and as such market forces can not affect it like they do McAfee.

So what is the answer, do we just let microsoft go on fucking everyone over?

What if the EULA said that the software was only valid for a year. After that year the software timebomed, what then?

Re:The goverment should regulate EULAs

[Inthewire]

"I'm pregnant, your the father, and I'm going to kill all three of us"

Re:The goverment should regulate EULAs

[maxpublic]

No EULA has ever been tested in court. Furthermore, EULA's don't meet standard contract requirements as upheld by nearly every state in the union (there are one or two where the EULA *might* be binding, but again it's never been tested). The current operating legal opinion is that a EULA, if brought before the court, would fail to meet even the minimal requirements of contract law and would be struck down.

It's an urban myth - spread with great joy by companies like Microsoft - that a EULA is a contract, or even an expression of actual law. It isn't and never has been. In fact, most companies are very well aware that their EULAs would go down in flames if they ever saw the light of day before a judge, which is why *no* company has *ever* tried to enforce a EULA in court. If companies like Microsoft thought they could use a EULA like any other legally binding contract, they'd be wielding their EULAs like giant legal clubs - but they aren't. That should tell you just how much faith the companies themselves have in these articles. And why they work so hard to get legislation passed which will make their EULAs real contracts retroactively.

Funny thing is, when companies like Microsoft say "it's the law", even though it's not and that fact can be readily confirmed, most people simply take their word for it. Just like when MS and others go on and on about "intellectual property theft" when there's no such thing - it's copyright infringement, a legal violation which has *nothing whatsoever* to do with the legal act of theft. But still, ignoramuses scream "theft!" because the people they mistakenly trust shout the same thing and they're too lazy to check out the facts for themselves.

EULAs are worth the paper they're printed on. The only laws that actually apply are those incorporated into state or federal code dealing with copyright. None of that code exempts EULAs from having to meet basic requirements to qualify as a legal contract.

Max

Re:The goverment should regulate EULAs

[dozing]

A EULA is only currently legally binding in two states, and it has never been tested in court in those.

A very interesting comment. But, do you have a link to provide a little more info? What are the two states? Why are they not valid in the other states?

Re:The goverment should regulate EULAs

[guinsu]

You never learned about "tenement housing" in the big cities about 100 years ago, or the treatment of factory workers during the industrial revolution did you? Free markets don't work when _every_ seller is trying to ream you. That is when the government must intervene, as it did in those two examples I mentioned.

Re:The goverment should regulate EULAs

[Malcontent]

"Ah, okay, that clears things up a little at least. Regardless though, GWB didn't lift a finger to keep Enron from going under, so obviously they didn't buy as much influence as they thought, eh?"

What the fuck? So GWB saw that his buddy was going to screw his shareholders and didn't help so what? What about the past few years?

The real scandal is this. When all is said and done nobody will go to jail. We as a nation will find out that everything Enron and Kenny boy did was 100% purely legal. You know why? Becuase kenny may be greedy, slimy bastard but he is not stupid. He bought the laws he needed. Why do something illegal when you own congress and the presidency?

Why do you think GWB did nothing to ease the suffering of californians? 1) because they did not vote for him. 2) because enron made a killing and gave some of that money to GWB.

Enron had been profitting from their association with GWB and other influencial politicians for years. Only a man to profound ignorance would claim that enron's contributions went to waste or the GWB "did nothing for them". The fact is Dick Cheney and GWB made enron billions by relaxing environmental laws, pushing deregulation, not stepping in during the california energy crisis etc.

Re:The goverment should regulate EULAs

[Malcontent]

Oh yea. The price of rentals in New York have nothing to with too many people and not enough places to live. If the govt simply lifted their regulations everybody in new york would be paying $200.00 per month for those luxury suites.

" At the price set by the government? I come from the country, where this was the case, and as a result there was no milk in the stores."

Hey Mr. Clueless man. In most states (maybe even all) the price of milk is regulated. Did you know that? Dairy farming is also subsidized did you know that? Perhaps you ought to do some research first before blathering your liberterian drivel.

Re:The goverment should regulate EULAs

[mi]

In .au you can only increase rents once per year, and only if the fixed term of the lease agreement has expired.

Well, naturally, you can not change the terms half-way through.

You also can not increase the rent by an unfair amount. What's unfair? If the tenant thinks it's unfair then someone from the Office of Fair Trading comes along and makes that decision.

Terrible! So you trust this "Office of Fair Trading" more than you trust your own ability to find a decent appartment at a decent price? To each his own, I guess... Why can you charge what you wish for a car, a stereo, or a pair of shoes, but for an appartment? Then, again, may be, this "Office of Fair Trading" controls prices on all those things too in Australia...

Now getting back on-topic. What you have just demonstrated is that goverment regulation, when not well thought out (aka the New York rental market) is a BAD thing. But goverment regulation which is well thought out (aka the .au rental market) is a good thing.

Actually, a whole bunch of wheenies think the government should regulate even more in here. According to them, the government regulation is good, there just should be more of it.

On the other hand, we only know, that in Australia things are tipsy-turvy, from you. I'd venture a guess, that a number of people in .au think otherwise, and can offer horror stories of "Fair Trade" employess.

Re:The goverment should regulate EULAs

[Anonymous DWord]

Keep your EULA away from my EULA, you sick bastard. And put your tongue back in your mouth.

Re:The goverment should regulate EULAs

[Anonymous Coward]

A EULA is a legally binding contract...

Since when!

Re:The goverment should regulate EULAs

[Teun]

Either you are a Troll or an Idiot or,
going by your distrust of what you call governement I'm led to believe you live in (South?) America.
Us in places (Europe) where capitalism is alive and kicking yet controled via the democraticaly elected governement(s), we in vast majority strongly believe in legislation to curb excesses.

Re:The goverment should regulate EULAs

[radja]

send me the pics...

//rdj

Re:The goverment should regulate EULAs

[aztektum]

hopefully if car manufacturers are making cars that we're all dying in, the rest of the world would stop buying them.

but we are of course sheep these days.

go ahead and flame about "where are your priorities. if you think you're a sheep change. i'm not."

ok well let me help you with that: computers truly aren't a necessity to human survival. neither is sci-fi. they're entertainment. eat it geek boi.

Re:The goverment should regulate EULAs

[kuma_act]

I'm not sure about the valid in only two states part. Some courts have set a standard that actually makes sense by which software agreements' validity under contract law is tested. The key is whether the customer had both a reasonable opportunity to inspect the terms of the contract (the EULA) and a reasonable opportunity to rescind the contract after that inspection. Note that the customer doesn't actually have to read the terms, they merely need the opportunity to. In other words, the software company has to give you a refund if you return the product after you read the terms. The retailer doesn't have to, mind you, merely the software company. Of course, this is all moot if you're in the US and you live in Virginia or Washington state, because they have enacted UCITA. Without going into a long list of the problems with UCITA, I'll just try to sum it up: Under UCITA, consumers have no rights.

Re:The goverment should regulate EULAs

[mi]

Oh yea. The price of rentals in New York have nothing to with too many people and not enough places to live. If the govt simply lifted their regulations everybody in new york would be paying $200.00 per month for those luxury suites.

If the government regulations were lifted, the prices would've gone down. If I can not charge what I want from this tenant, I'll have to spread it over the others. Most likely -- the new ones. That's why you are hit the most, when moving from one place to another. The landlord has to set the higher price in advance because he/she will have to fill out too many forms to increase it the next year, if he wants to. And you also have to pay for all the tenant.net subscribers living in the same building, who know every way to weasel out of paying the market price.

Not enough places to live? Of course! What's the incentive to build/renovate in this over-regulated city? The city, where rent-control was introduced in 1943, as a temporary measure, is its own hostage now -- repealing the rent control costs too many votes.

City of Westchester, MA was hit with this problem -- no appartments. Why, was the question? There are, roughly, just as many homes, and not that many more people?.. The answer -- it has gradually become next to impossible to evict a tenant, so many retired owners of two-family houses, who used to rent before, gradually withdraw from the market. The risk of getting an unruly tenant in your upstairs appartment did not rise, but the danger, such a mishap would bring, inreased too far to outweight the benefits.

"At the price set by the government? I come from the country, where this was the case, and as a result there was no milk in the stores."

Hey Mr. Clueless man. In most states (maybe even all) the price of milk is regulated. Did you know that? Dairy farming is also subsidized did you know that? Perhaps you ought to do some research first before blathering your liberterian drivel.

I did the research. My "drivel" is quite founded. In here, government regulations help formers. They can raise the milk prices -- it is illegal, in fact, to to charge too little! It is also illegal to advertise a particular brand of milk -- in Massachusetts, for example. Only the general "It does a body good" is allowed there. Stores can not even publish coupons for a particular brand of milk.

So, I guess, I'm not as clueless, huh? Make sure the dog does not eat your homework again...

Why do they get such protection? There are more of them, than there are those, who noticably suffer from it. We all do, but we don't realize it.

Same with the tenants vs. landlords. Their votes are equal, and even though it is the landlord's damn property, a whole bunch of people pretend, the tenants are somehow entitled to control it beyond the lease terms.

What's your problem with libertarianism, anyway? Take the quiz. May be, you'll find a hidden libertarian inside you :-)

Re:The goverment should regulate EULAs

[Icculus]

I come from the country, where this was the case, and as a result there was no milk in the stores.

Some might consider that a good thing.

Re:The goverment should regulate EULAs

[mpe]

Those, where the consumer has a choice:
*software*,food,housing,movie theatres,car manufactureres

Those, where the consumer has no choice:
gas,water,sewer,electicity!($$$),gasoline

Except that Microsoft have worked hard to put at least their software in the the latter catagory and I'm not convinced that gasoline shouldn't be in the former catagory. The oil companies might be big and nasty but they do at least compete.

Re:The goverment should regulate EULAs

[mpe]

Yes and no. In the US, OPEC would appear to have a stranglehold on gasoline.

Whilst OPEC might have a say in the price of crude oil, though there is plenty of oil extraction going on in and around North America. A huge number of products are produced from crude oil, motor fuels are amongst the simplist.

Re:The goverment should regulate EULAs

[Anonymous Coward]

You may vote every 4 years, but you are still "stuck" with the policies of the parties standing for election. One of the problems with representitive democracies is that too many representitives put their own interests before those of the people they represent.

The whole system needs reforming. Those elected to public office should be known personally to those electing them. So district representives should be elected from those living in the district. Then these should elect city representive from within their own ranks. The city representives should elect county representives (from within the city leglislature), the state assembly elected from within the county assemblies etc. So that even the national leader would have been elected by the (small local) community in which (s)he lives. Also limit the number of times that any person is allowed to stand for election, thus getting rid of the career politicians and giving government of the people back to the people. As the persons standing for election would be known to those electing them, there would be no need for expensive campaigns.

Re:The goverment should regulate EULAs

[mpe]

The cars you buy are decent not because the government regulates their quality, and not because corporate execs are angels, but because the manufacturers compete with each other. Making bad cars is just bad business.

IIRC governments got involved with car safety because the market wasn't addressing the issue.

Re:The goverment should regulate EULAs

[Daengbo]

I am not pro-proprietary software, but if you click "I Agree," you have given your word. If you do not hold to their EULA, then by your definition, you may not be a thief, but you most certainly are a liar. I believe we should take these attempted contracts at their 100% word, and if we can't in good concience agree to them, we don't buy. We don't click "I Agree." Only then will pressure come to bear on the companies that draft unacceptable EULAs. You have choices and your word. Make the choice and live by your word.

Re:The goverment should regulate EULAs

[EllisDees]

Virginia and Maryland passed the UCITA
laws, part of which is supposed to validate shrinkwrap EULAs.

Re:The goverment should regulate EULAs

[Daengbo]

I would like to applaud you for the decision to play by the rules. I used to get a lot of priveledged information, and people will NEVER just let me get off with "I can't relly talk about it."

Re:The goverment should regulate EULAs

[MrTaz65]

So, does that work with the GPL?

I send an email to "big GPL'd" project saying that my EVLA lets me use any code as if it was my own and if they don't agree it's their responsibility to ensure there is no way possible for me to get the software?

Cool, gotta go get typing.

Re:The goverment should regulate EULAs

[number11]

"The government regulation is much worst than any company can do."

At first I thought "wacko rightwing nut". But then I realized, the guy is right.

The only reason EULAs have any power (if they do) is because of government regulation. Without government regulation, a EULA is just a scrap of paper suitable for lining your parakeet's cage, with no legal significance whatsoever, totally unenforceable.

Corporations want government regulations to enforce their EULAs, but want to have a free hand in writing any terms that suit their whim. So, right on, brother! You've cut to the heart of the problem! No government regulation! No enforcement of EULAs! Smash the state!

Oh, that wasn't precisely what you had in mind?..

Re:The goverment should regulate EULAs

[Mr. Slippery]

The Mass-Market License. The license is the agreement that gives you the right to use the software (or other information)...

The fallacy being that I need a licence in order to possess such a right. Nonsense.

Unless I sign a contract prior to obtaining information (a NDA or somesuch), once I get my grubbly little brain on a string of bits there is no legal authority to prevent me from using it, except in some specific cases of making and distributing copies of that information.

EULAs and their ilk are null and void by nature.

Re:The goverment should regulate EULAs

[Hoarke42]

"The oil companies might be big and nasty but they do at least compete."

This may be true in theory ("In theory Marge, Communism works. In theory."), but it would be tough to convince me that it's just coincidence that ALL of the gas stations in town decided to do a price hike of the same amount a couple days before their normal weekly change, and also that it was just coincidence that they all did a SECOND jump during the week. It be hard to think of something that reeks of more collusion than this.

Re:The goverment should regulate EULAs

[Mr. Slippery]

Why should they? What do they profit from being obnoxious?

What do they profit? Lots and lots of money.

The word is slumlord. Try a Google search and look at some of the stories it turns up.

Re:The goverment should regulate EULAs

[Galvatron]

He bought the laws he needed.

No, he didn't. Have you been following this case at all? Insider trading and fraudulent accounting are illegal. Shredding incriminating documents is illegal. People will go to jail over this, and furthermore Arthur Andersson will go out of business, because no one wants AA's name on their audits anymore.

Why did GWB do nothing for California? Because 1) they weren't suffering. There were approximately 2 power outages the entire year. 2) Because there was nothing that could be done. You can't wave a magical presidential wand and create more power plants. You can't fix a shortage of supply. The only thing to do was try to conserve and wait for the new power plants under construction to come online.

But, I should point out that we have moved very far from the topic of the viability of free markets. I have little interest in a prolonged debate on the merits or lack thereof displayed by GWB.

Re:The goverment should regulate EULAs

[Mr. Slippery]

Why can you charge what you wish for a car, a stereo, or a pair of shoes, but for an appartment?

First, shelter is a basic necessity, while cars (and even shoes) are not.

Second, my ownership of a stereo or pair of shoes that I sell you doesn't (directly) depend on a government deed; my ownership of a plot of land that I rent you, does. It's only sensible that the government regulate the exercise of property rights that it creates.

If you want a truely laissez-faire system, first tear up all the land deeds...

Re:The goverment should regulate EULAs

[Eccles]

The key is whether the customer had both a reasonable opportunity to inspect the terms of the contract (the EULA) and a reasonable opportunity to rescind the contract after that inspection.

No, the key is that the customer sees the EULA *before* ever making the purchase.

Suppose I buy your house. All paperwork is signed, etc. As I start to move in, I find a sign on the front door that says that I can't cut down the Japanese maple on the corner of the lot (or perhaps that I can't resell the house or sublet it), and if I don't agree we can just cancel the whole house sale. You think that should be binding?

Re:The goverment should regulate EULAs

[tricorn]

I always tell my computer "<product name>: the following portions of your license agreement are hereby changed: remove all sections, replace with section 1: the use of this software is governed by the copyright laws of the United States; by allowing me into the program after I click that I agree with the modified agreement, you are agreeing that these new terms hold".

Actually, an IP lawyer I know of supposedly crosses out all the portions of a shrinkwrap license, puts his initials next to it, then opens the package. If it's a valid agreement, my changes are just as valid as their proposal; if they didn't want me to change it, they should have sent a person along to accept the agreement, instead of letting a computer click or the act of opening the package signify agreement. Or, more to the point, if it is a legally binding contract, show me YOUR copy of what I agreed to, including the indication that I actually did agree to it.

Modifying the program to not refuse to run if you click on Disagree is probably allowable under copyright law, as well.

Re:The goverment should regulate EULAs

[blibbleblobble]

Good point. Buy, copy, return. "Sorry, I can't accept this license agreement, refund please"

Re:The goverment should regulate EULAs

[blibbleblobble]

Is it Texaco who has a "price-watch"?

"We continually monitor the prices of petrol stations within a 5 mile radius, to ensure that our prices are among the most competitive in town"

i.e. price-fixing, which is illegal, yet they get away with thumbing their noses at customers by writing their price-fixing policy on posters.

Re:The goverment should regulate EULAs

[Anonymous Coward]

It's not even collusion. In most cases, who the gas station buys their gas from has nothing to do with the sign out front. Most areas have only one (or less) local refineries, which gives them great abilities to set prices locally.

Re:The goverment should regulate EULAs

[Anonymous Coward]

Almost every crude oil-based product that isn't gasoline is a byproduct of the gasoline-making process. If the demand for gasoline fell off sharply, the price of those other crude oil-based products would shoot through the roof.

Re:The goverment should regulate EULAs

[Anonymous Coward]

"...and you can switch from Microsoft Office XP or Windows to...."

And it would be a great pain in the ass to switch from Linux to Windows or from VMS to OS/400 or from Atari to Commodore.

How much of this monopoly was "created" and how much is a natural outcome of the essence of computer software.

Re:The goverment should regulate EULAs

[DavidJA]

ok well let me help you with that: computers truly aren't a necessity to human survival. neither is sci-fi. they're entertainment. eat it geek boi

Either is housing, because we can live out on the streets, nor gas/electricity because we can eat cold food. Supermarkets? Nah, not nessasery either because we can all grow our own vegies and kill our own cows.

Let me ask you this, if computers are only for entertainment, what do you think would happen if goverments outlawed use of every computer on the plannet? Sent Nazi type squads in to distroy every computer that ever existed?

I'll tell you what, overnight, thousands of companies would go broke, millions of people would be out of jobs, and america would be back in the stone ages before the end of the week.

You see, computers are now in essentual service, they never use to be, but then again electricity never use to be either.

Re:The goverment should regulate EULAs

[Ian Bicking]

Those, where the consumer has a choice: *software*,food,housing,movie theatres,car manufactureres

In the case of food, housing, and in some areas cars, it is not a choice. You can choose between providers and manufacturers, but you simply can't choose not to have them. And in many cases, where an explicit or implicit cartel exists, none of the choices are any good, and you might as well have no choice at all. I don't want to make the choice between food that might be poisonous and food that isn't. Or an apartment that is a fire trap (I'd probably learn that a bit late if I learned it at all). Are you sad you can't get cars with fuel tanks underneith the seats anymore? I don't know what you want, but regulation isn't that bad for me.

Re:The goverment should regulate EULAs

[Ian Bicking]

Many forms of regulation are beneficial to reputable companies. For instance, safety regulations often dictate that companies do what they should be doing all along, and reputable (and moral) companies will make safe products. But it is beneficial for these companies that there be regulations, because it means that they won't be undercut by companies that don't care about the safety of their products. It is often difficult for consumers to tell the difference between a safe product and an unsafe product (until it's too late), and the regulation means they don't have to try to make that distinction.

In some ways, the same is true of EULA's. Consumers really pay no attention to them -- they will only pay attention in the unlikely (but important) case that they hit a limitation.

A reputable company -- which among proprietary software companies is extremely uncommon -- will not manipulate their customers in this way. A reputable company will not ask their customer to make a decision when they are not well informed, and very, very few people are well informed (or in a situation when they can make a free choice) when they are asked to accept the EULA.

There are reputable companies. I don't know of many Linux distributions that have EULA's, or Open Source products in general. It would level the field for us. In this case, it will allow reviews of proprietary products to be fair and potentially critical -- a freedom that journalists already possess for OSS products.

Re:The goverment should regulate EULAs

[Anonymous Coward]

In Canada stores are forbidden from accepting returns of opened software packages so that point is moot at least here.

Re:The goverment should regulate EULAs

[Malcontent]

You wait. Everything they did was legal and nobody will go to jail. Even if some things they did were quasi-illegal or misdemenors they shredded the documents and of course the primary whistleblower "committed suice" a la vince foster.

Re:The goverment should regulate EULAs

[Malcontent]

"What's your problem with libertarianism, anyway?"

My beef with libertarianism (aside from all the bold tags) is that it's a fantasy trying to pass itself off as a philosophy. At no time in history has any society formed a libertarian society. Even the smallest of tribes int he deepest jungle elect chiefs and form governments.

Please point to one civiliation andywhere anytime that ruled itself with no government and survived more then a few years or grew to become influencial even in the narrowest sense of the word.

Re:The goverment should regulate EULAs

[cduffy]

At no time in history has any society formed a libertarian society. Even the smallest of tribes int he deepest jungle elect chiefs and form governments.

Ya know, there's a difference between libertarianism and pure anarchism. That's why people can say they want "a libertarian government" (whereas an "anarchist government" is an oxymoron).

Further, there are degrees of libertarianism. Compared to where the US stands today, its federal government was, when established, much closer to operating upon libertarian principals -- a fair number of libertarians would call it satisfactory. Some of the most extreme libertarians draw close to anarchism, but they're fairly few in number. Tarring the entire group (including those who are just strict constitutionalists) with such a brush seems simply misguided.

Re:The goverment should regulate EULAs

[cduffy]

Heh. You know, that's not too far off from the legal theory that first was used in the US to stop the use of tresspass law in enforcing segregation in restauraunts. The legal reasons for nondescrimination (the equal protection clause, in this case) applied only to government -- but it's government that was stepping in and providing the mechanism to keep (in this case) black men out of an upscale restauraunt. The justices decided that the process of enforcing trespass in this situation constituted action on the government's part (as opposed to action on the part of the owner of the property in requesting that they leave); hence, the police now have no authority to kick tresspassers off of a publicly accessible area if the particular tresspassers are chosen on a descriminatory basis (that's a rough approximation -- IANAL or a police officer).

Another similar case (and even more on point!) is with regards to a private agreement between a series of landowners to only sell their property to caucasians. Once again, the court decided not to enforce this contract on account of legal limits not on public's ability to contract, but on the government's ability to enforce.

The point, then, is that there's established precedent for the government deciding that enforcement of a private contract is beyond its legal rights. While you may mock the concept of the government throwing out a EULA on account of it lacking the ability to enforce the same, it's not so far-fetched.

There are even some rather strong arguments as to why they should be thrown out on a regular basis regarding lack of consideration. Additionally, one of the aspects of a contract is that it's a negotiated bargain between two parties; the take-it-or-leave-it nature of a EULA gives a judge considerably more wiggle room to reasonably decide that one shouldn't be binding.

IANAL, though I've spent more time listening to them in classrooms than most.

haha!

[trollercoaster]

neener neener neener!

I win, you lose. haha!

What happened to Nader, anyway?

[number one duck]

Does the better business bureau do anything in the world of the web, or have they kept to keeping the brick and mortar people in line?

Re:What happened to Nader, anyway?

[Anonymous Coward]

Nader is just a hypocrite who has millions invested in the companies he demonizes. Look up his 2000 financial disclosure he made as a part of his presidential campaign.

Re:What happened to Nader, anyway?

[indiigo]

I see lots of books that seem anti-corporate to me:

Unsafe at Any Speed, 1965
Action for a Change, 1972
Whistle Blowing: The Report on the Conference on Professional Responsibility, 1972
You and Your Pension, 1973
The Consumer and Corporate Accountability, 1973
Corporate Power in America, 1973
Taming the Giant Corporation, 1976
Verdicts on Lawyers, 1976
Menace of Atomic Energy, 1977
The Lemon Book, 1980
Who's Poisoning America, 1981
The Big Boys, 1986
Winning the Insurance Game, 1990

This is odd ...

[Anonymous Coward]

... my ass is extremely hairy and smells as if it has not been washed in days. Anyone here have any advice?

Re:This is odd ...

[Anonymous Coward]

Stop using open sores software and take a bath you dirt hippy!

Re:This is odd ...

[Anonymous Coward]

I have now stopped using Linux, and have replaced it with Windows 2000 Professional. My ass is suddenly as smooth and pink as a baby's, and smells of roses on a fine summer's day. Thank you, anonymous Slashdot poster!

am i missing any?

[Anonymous Coward]

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Chloe'

Marisol
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bitch
WACKEY JACKIE
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Lacy
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Pedora
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Acacia Amaryillis
Lezli Nikila
Saria Kimmi

MALE FIRST NAMES Aaron
Abdul
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Re:am i missing any?

[Anonymous Coward]

There's no Ida on this list. You are dead to me.

Re:am i missing any?

[Anonymous Coward]

How could you miss NATALIE Portman!!!

You need my permission also

[LM741N]

I hereby declare that this comment cannot be moderated down without my express permission :)

Re:You need my permission also

[lobsterGun]

I'll be damned! It worked!

Maybe it'll work for me!

I declare that this comment can also be only modded up!

Re:You need my permission also

[Anonymous Coward]

I hereby declare that this comment cannot be moderated down without my express permission :)

That is odd. I did not need consent from you to stick my 9 inches of manhood up your tight freshly washed anus.

Re:You need my permission also

[Anonymous Coward]

Off-Topic, but why does "Overrated" now show up as a moderation adjective? Are Overrated and Underrated now standard moderations, subject to meta-mod?

Re:You need my permission also

[Mac Beckett]

If it's moderated down, it becomes a thumbnail comment, and has therefore been legally modified (see Thumbnail story).

Re:You need my permission also

[markmoss]

You forgot the most important part:

By reading my comment, you hereby agree to the following contract:

I hereby declare that this comment cannot be moderated down without my express permission :)

Accept Activate Computer's Self-destruct

In tomorrows news

[DavidJA]

...an article about how McAfee is suing a Network Administrator for telling a friend to purchase Symantec's AV software insted of McAfee's because Symantec's works better.

Appropriate and timely action

[Anonymous Coward]

I noticed that particular license limitation when I bought a copy of McAfee antivirus about six months ago. I was disgusted, and it occurred to me that I should contact some consumer rights organization about it. But being lazy I never did.

I'm glad someone is at least drawing publicity to the issue. It will backfire for McAfee and perhaps deter other companies from similar policies.

Free Speech?

[foolish youngster]

Theree is no "free Speech" in the USA, never has been. The corporations are now assuming the role the FBI played in the 40's, 50's, 60's and 70's. with the onset of corporate speech, only that speech pre-approved by the company in question will be offered through the media that IT OWNS! It is worthy of note, that I payed $75.00 US for the antivirus software in question, and I had to spend several days unfucking the registry because of it. It took over the C++ compiler, the firewall cheeseware and wouldn't allow me to use my email server untill I had removed ALL reference to "Network Associates" in the Registry. Do not use this crap, its not worth the damn headache.

OK, now *prove* you've fucked them all!

[Anonymous Coward]

Talk is cheap...

You can not legally sell yourself into slavery...

[PaulBu]

The point that EULA or click-trhough license on their website is a binding contract does not seem valid. If this contract infringes on one of the basic rights it should not be legal, same as I can not legally sell myself into slavery by signing any contracts.
Another interesting question is if just that part of the contract is found invalid in court, does the contract have the provision for invalidating clauses one by one or does the whole contract become invalid?
And if the whole EULA becomes invalid, can one legally violate their license and dissiminate ("pirate") their software as much as he wants? ;-) (most probably not, because in the absence of explicitly stated agreement the copyright holder by default reserves ALL rigts and you can do nothing at all with that piece of software, not even run it :-( ).

Free Speach?!?

[spiphy]

Um I think that McAfee can do what it pleases for the most part with its EULA. Free speach is not garanteed out side of the government. The first admendment states that congress is the one who can not make laws aginst free speach. An EULA is and agreement. If you do not agree click NO!

Re:Free Speach?!?

[Sc00ter]

That's very interesting.. A coworker of mine had a website that was talking about how much our place of employment sucks. She was suspended and told to take the website down. Well she left and kept the website up.

This is very similar. Like the co-worker, you don't have to buy/use the software, just like she didn't have to work at our place of employment. If you don't like the terms, don't use the product or work at that place of employment.

Re:Free Speach?!?

[freeweed]

The first amendment says something to the effect of 'the government shall make no laws...' in regards to free speech. Saying 'free speech is not guaranteed outside of the government' makes no sense - the government, and ONLY the government, can make an EULA valid or not. If an EULA violates free speech, and the government were to enforce these laws, the constitution has been broken.

Re:Free Speach?!?

[Sc00ter]

Please look at my example and explain that. She was not allowed to speak out about the company she worked for while she was currently employed by it. Much like you can't write a bad review about a product that says you can't in the EULA while you are using it.

The reason she was allowed to be suspsended, then basically fired becuase she refused to take the website down was because of something called "Free Will". She had the free will to get a new job, just like you have the free will not to use a product with a crappy EULA.

Re:Free Speach?!?

[tsg]

And exactly how are you supposed to write a decent review of a product without using it?

"No reviews without permission" clauses give you two things: reviews only from people who liked it and reviews from people who haven't used it. And this is informing the public how?

Re:Free Speach?!?

[freeweed]

Your point (or part of it anyway) was that this isn't the government making the law, it's the software company making the EULA. Well, the government is the ultimate enforcing body of the EULA - ie: the government would be enforcing a law that intervenes with free speech. Hence the breaking of the US constitution.

As for your 'free will' argument, that's like saying a woman can just quit her job if her boss is sexually harassing her, because she has 'free will'. Of course everyone has free will, but illegal behaviour is still illegal behaviour, and THAT'S what the government is supposed to be for - stopping bullshit like this.

Re:Free Speach?!?

[Anonymous Coward]

I have recieved McAffe bundled with a new PC before. I was never presented with an EULA at any point. It is not possible to agree to a contract that you do not know to exist. If I write a review of McAffe, who will McAffe sue? Toshiba?

Re:Free Speach?!?

[Anonymous Coward]

Um i don't think free speech is limited to government ideas. What about free speech objecting to unfair working conditions, animal rights, women in the workplace, etc...it has long been held that free speech is guaranteed in the constitution and the supreme court has ruled it is a right of the people. And the constitution says freedom of the press which has been granted vast ground using free speech. McAfee's gonna loose this one, what were they thinking, oh, they weren't.

Re:Free Speach?!?

[WNight]

But EULAs aren't valid contracts, so you can tell them to go to hell, and click the silly little button to make the software you legally paid for work.

They have absolutely no right to sell you a product and then disable it until you agree to a bunch of stupid rules that they should have mentioned beforehand.

Re:Free Speach?!?

[Sabalon]

Okay...she left. But what if she didn't? While the company could make her working life hell, is there anything they could do to force the site down?

Given that if you point a lawyer at an ISP, many times they'll cave, but lets assume they didn't. If the case was to go to court to get law enforcement to bring the site down, would it happen? Or would the judge/jury say that she has the right of free speech to say what she wants about the company on her own time, and the in enforcing the company's wish to have the sight removed would be a violation of the 1st.

So...if we look at McAffe, if someone writes a review, they can whine all they want, but as the poster said, hopefully if this went to a trial, it would come out that, yes, the EULA said that, but it would be a violation of the 1st to remove the review.

In the end, it all comes down to how legally binding of a contract a EULA can assumed to be. I tend to think that it isn't one at all. You show me proof that I agreed to it? I clicked accept, hell - maybe my cat walked across the keyboard, or I misclicked my mouse cause I was tired. Can't remember the last time I meant to not sign a contract and accidentally wrote my name.

Re:Free Speach?!?

[Sabalon]

Whoops...it was a different poster talking about the govt. forcing removal violating the 1st. Soooo many comments.

Re:Free Speach?!?

[nathanh]

She had the free will to get a new job, just like you have the free will not to use a product with a crappy EULA.

You also have legal rights. The EULA must ultimately be enforced by the government - all contracts and copyrights are enforced by the government - so if government does not enforce it then there's no obligation for you to follow it. The government doesn't enforce illegal or unfair contracts, for example.

There have been many famous cases of airtight legal contracts being nullified by the judiciary. Fleetwood Mac's contract with Davis is the classic example. The judge nullified the contract for 4 reasons; one of them was that the compensation Fleetwood Mac received from Davis was "grossly inadequate".

To put it simply: contracts aren't binding unless the government agrees. So it's not just a case of "love it or leave it". That's not the way the legal system works. The legal system has human judges because there is a need to apply human values to the judgements. Sometimes the law is not enough.

Re:Free Speach?!?

[maxpublic]

On the other hand only the government has the right to enact and enforce laws. Adherence to a EULA can only be compelled by a government body - Microsoft can't go out and imprison or fine people on its own, it has to appeal to the government to do so. And the government is, as you put it, bound by the Constitution.

Our Founding Fathers were savvy blokes and they thought this through. They even wrote about the very thing you talk about, along with quite a few other interesting items re the Constitution, in a great many papers. You may want to check a few of them out at your local library.

So in conclusion, McAfee can write whatever horseshit it wants into its EULA. But McAfee has no legal authority to enforce it's EULA - only the government can do that and the government must act within the purview of the Constitution. This means that First Amendment rights are UNIVERSAL within the United States of America and cannot be abrogated by anyone not acting on behalf of the government, not even a monied corporation.

Max

Re:Free Speach?!?

[Peyna]

Infringing on another person's rights is illegal as well. In this case, they are preventing someone from exercising their rights. You can't simply sign away your first amendment right. (These would be different from Miranda Rights.)

Re:Free Speach?!?

[Peyna]

As long as it isn't slander or libel, I see nothing wrong with saying 'The company I work for sucks', or more specifically something like, 'The company I work for charges x amount more for their products than they should.' Unless of course, that can be considered some sort of trade secret.

I would expect your boss to not be very happy with you. If you don't like the practices of your company, and whine and complain about them, then your employer is going to assume that you don't want your job... okay I'm just rambling now.

Re:Free Speach?!?

[Happy go Lucky]

Infringing on another person's rights is illegal as well. In this case, they are preventing someone from exercising their rights.

You mean the rights outlined in the First Amendment, I assume: "CONGRESS shall make no law..."

It was 1868 before that was even binding on state governments. Almost ninety years as a nation. As of yet, NOBODY has seriously suggested that the Bill of Rights is binding on private parties. Or, in high school, did you tell your mom to get a warrant before searching your room for smokes? (I actually tried that. She wasn't thrilled.)

You can't simply sign away your first amendment right. (These would be different from Miranda Rights.)

The next time you need to sign for a security clearance, an NDA, or a contract in a place with a "little" Hatch act," keep that in mind.

I'm curious: what makes the First Amendment different from the ones outlined in the Miranda advisement? And if you can't waive a Constitutional right, then you have no right to plead guilty in court. You have no right to bench trials. You MUST have an attorney: there will be no pro se representation. You can never consent to being searched. And you'll go either to hell or to jail if you leave the house without a gun.

(There are rights that cannot be waived, but damn few and they're named by statute. Death penalty defendants, in my state, cannot waive jury trials here. If there's a statute concerning waiver of free speech, I'd like to see a citation.)

Re:Free Speach?!?

[mpe]

Um I think that McAfee can do what it pleases for the most part with its EULA.

That isn't the issue, the actual issue is if what they put in their EULA is binding on any other entity...

Free speach is not garanteed out side of the government. The first admendment states that congress is the one who can not make laws aginst free speach.

Actually it's a little broader in that it disallows laws which restrict free speach, even if that is simply a side effect of the law.

stupid

[CFN]

I just want to know what lawyer, or whomever, decided this would would not bring about a tremendous amount of bad press, negative publicity, and expensive lawsuits.

In a similar vein, today the Republicans stated that they thought campaign finance reform would cost them elections.

Don't people think about what they say?

Scary Consquences for Slashdot

[Jester998]

Let's sit back for a minute and think about what would happen if NAI wins this one... suddenly most every vendor out there will have these types of terms in their EULAs, right?

Well, think about some of the recent "Ask Slashdot" questions:

"Inexpensive Network Servers" (here)

"Time Tracking Software" (here)

are two of the more recent ones... now think about what people generally post in response to these questions: discounting trolls and flamebait, many people post with a recommendation for a specific product or advice about which products to stay away from, and they usually then state their reasons (aka "review")...

If someone posts a negative personal experience with a company/product, said company could demand that it be removed due to the clause in their EULA... worse, they could demand the identity of the poster and proceed to sue their ass off.

It's good to finally see some positive action on the technological front from the government (I live in Canada, but all governments are generally the same when it comes to technology... ;( ). I which NY all the best, and definitely hope that that clause in the EULA is found to be unconstitutional.

Re:Scary Consquences for Slashdot

[Ozx]

Or you could not use a product, and "review" it by telling others that they should avoid it because agreeing to use it also means agreeing to not disclosing information obtained using it...

Re:Scary Consquences for Slashdot

[Anonymous Coward]

So if by clicking "Next" in some little installation wizard somehow prevents me from saying anything negative about the software, why doesn't every retail store put a sign by their cash register that says, "By paying for this product you agree that you will not say anything bad about it to anyone, ever."

If I let my roommate use my computer and he doesn't like McAfee, is he allowed to say anything bad about it, or do I have some legal obligation to prevent anyone from touching my computer?

Re:Scary Consquences for Slashdot

[markmoss]

why doesn't every retail store put a sign by their cash register that says, "By paying for this product you agree that you will not say anything bad about it to anyone, ever."

Because a lot of people would drop their intended purchases on the floor, walk out, and tell _everyone_ about it. The whole problem with EULA's is that people don't really read them, so the software companies get away with things that are totally unacceptable in any other circumstances.

Re:Scary Consquences for Slashdot

[tom's a-cold]

Mod parent up, please.

Back in the bad old days, there were blasphemy laws. Now, if you take a corporation's or product's name in vain, you can wind up bankrupted through lawsuits, or in jail. We need to cut these bastards down to size by restricting abuses of corporate power before we're even more enslaved than we already are. This isn't about free markets, it's about corrupt attempts to limit the free flow of information that makes competition possible. Anyone who thinks that large corporations want to exist in a competitive market have been reading too many Ayn Rand books rather than observing actual corporate behavior.

How long does an EULA last?

[Sc00ter]

Okay, so I buy my software, I say okay to the EULA, I start using the product, realize that it blows and stop using it. Now, the EULA agreement is an agreement I agree to in order to use the software. If I decided to stop using that software, is that EULA still binding? If it is still binding, for how long?

Re:How long does an EULA last?

[Sc00ter]

Here's another good question. What if you're under 18 and you buy some software and click through the EULA. Most states say you have to be over 18 to sign/agree to a contract. Wouldn't that make the EULA void? It's also not like they card people at best buy when you go and buy some virus scanning software.

Re:How long does an EULA last?

[Lumpy]

it is biding forever and they can change it at will without notice for any reason. If they want to make it so they can sue you into oblivion because your name is dave they can...

This is why eula's are evil and no lawyer will tell you to ever sign or agree to one.

yet the moron sheep on this planet do every day..

oh and corperations DO NOT have the same eula as you see in the box... I know for a fact that my company recieved a special one that was reviewed by our legal department ,modified and sent back for review again until it was acceptable. Yes Microsoft will gladly give a completely different EULA to a major corperation.

Re:How long does an EULA last?

[dwdyer]

What if you're under 18 and you buy some software and click through the EULA. Most states say you have to be over 18 to sign/agree to a contract. Wouldn't that make the EULA void?

I'm not a lawyer, but if that were the case, then the 18-year old has no right to click through the EULA in the first place. That wouldn't render the EULA void, but it might mean that the license to use the software is void and the kid would be legally obliged to stop using the software.

Sort of like requiring you to be 21 to buy beer. Just because a 16 year old managed to buy a six-pack doesn't mean the kid's entitled to keep it just because the clerk failed to check ID.

Re:How long does an EULA last?

[Sc00ter]

I remember watching on TV a court case about a guy that rented a limo to the kid. I think it was NJ. There if the kid signs it it's valid until the kid doesn't want it to be valid anymore. Basically, the party under 18 can say go screw, I'm doing what I want, but the part that wrote up the contract still has to follow it. There was also no penalty to the kid for signing the contract (the judge did give them shit for not reading it before signing it).

Re:How long does an EULA last?

[dh003i]

You clearly know not what your saying.

An individual can't sign away his/her rights in a contract.

Just like I can't sign myself into slavery by a contract, I can't sign away my free-speech rights by a contract.

Re:How long does an EULA last?

[DavidJA]

Here's another good question. What if you're under 18 and you buy some software and click through the EULA.

... and another question along these lines.

What is it that actualy protects software from piracy? Is it the EULA or copyright law? If it is the later, how is it that the GPL works?

If it is because of the EULA, does that mean that a 12 year old can purchase the software, click through the EULA and make/sell copies of the software under the protection of the EULA being void due to his age?

Re:How long does an EULA last?

[Suppafly]

i forget the latin word for it, but i believe the gov't leaves the fuct up company and the minor in the position they put themselves in, but the contract would void. IE, I knowingly sell a kid a computer for $50 and he agrees to pay me $10 a month for maintanece or something, he can keep it and I can keep the money, but he isn't bound to pay the $10 a month for mantanience.

Re:How long does an EULA last?

[Arandir]

I'll tell you the truth. An EULA is not a contract. Some judges may disagree with me, but that's irrelevant, since other judges do.

What is a contract? It is a binding agreement between two or more parties, requiring the consent of both parties and the possibility of negotiation, in which rights, priviledges, goods or services are exchanged.

An EULA does not fit the definition. When you buy WindowsXP (as an example) at Fry's (as an example), the US Commercial Code considers you to be the owner of that box. There are some things you cannot do with your possession, and they are enumerated in copyright law. As long as you don't violate copyright law, you can do anything you want with the software, legally. Including actually using it.

Now the first time you try to use it you get a message of some sort that says you have to agree to some longwinded and bogus EULA. This EULA specifies no consideration. It pretends that your use of the software is consideration, but you already have the right to use the software. It pretends that your payment for it their side of the consideration, but you paid for it before you ever saw the EULA. You do not have to agree to anything in order to use the software! It is already your legal right!

Furthermore, your act of clicking a mouse button while a certain glyph is within a specific region of the display does not constitute acceptance of the EULA. The only way you can use the software is to click that button, and since you already have the right to use the software, clicking the button constitutes nothing other than your act of using the software. If you find a EULA that says something on the order of "by using this software you agree to...", simply laugh at loud and ignore it. They cannot impose legally binding terms upon you unilaterally. Remember, you already have the right to use the software.

So what should Microsoft (and NAI, et al) do if they want to enter into a binding agreement with you? Simple. They need to present you with a valid contract before you obtain the right to use the software through some other means. If they don't want their software to be treated as a commercial product to be sold, then they need to stop distributing it to retailers to sell! They need to start *licensing* their software instead. That means you don't get the software until you first agree to the EULA. That means most of the software on the shelves of Fry's would disappear. That means you have to get the software direct from the manufacturer or one of their duly authorized agents.

-----
I am not a lawyer. If you don't follow that EULA unilaterally and illegally imposed upon you, expect to be sued, arrested, and shot if trying to resist that arrest. This is because your current society is not based on the rule of law, but on the rule of man.

Re:How long does an EULA last?

[bnenning]

What is it that actualy protects software from piracy? Is it the EULA or copyright law?

(IANAL) The latter.

If it is the later, how is it that the GPL works?

As far as I know, the GPL has never been tested in court. But if it were, it would have a much stronger case than a traditional EULA. A EULA attempts to retroactively alter the terms of sale (converting a purchase into a license) and removes your rights, in exchange for nothing at all. (They claim to "give" you the right to run the software, but you already have that right.) On the other hand, the GPL adds rather than removes rights by allowing you to distribute copies. It does place restrictions on how you can exercise that right, but under standard copyright law you can't redistribute it at all, so it's still a net gain for you.

Re:How long does an EULA last?

[Galvatron]

Both. What's confusing you is this: most EULAs are "restrictive," meaning that they take away rights you would ordinarily have under first sale doctrine. This is why for commercial software, the validity of EULAs is such a big deal. If they are found to be invalid, then all software will revert to first sale, copyright defaults. So a 12 year old might be able to publish a review if he wants, but would not be able to redistribute the software.

On the other hand, the GPL is "permissive," meaning that you can choose one of two options: either go ahead and be bound by copyright law (which will forbid redistribution), or agree to this license which gives you more rights than you would get under the law. If the GPL is held to be invalid, it's not a big deal, becasue then the software will simply revert to the more restrictive legal situation, and whoever violated the GPL will still be in violation of copyright law.

Re:How long does an EULA last?

[Anonymous Coward]

What if I didn't even see any EULA? McAfee came bundled with my computer. I'm pretty sure I clicked past no "agreements." (Whether a meaningless click can possibly be legally binding is another question entirely.) That being the case, I have full legal right to say:

"McAfee Sucks!"

Re:How long does an EULA last?

[Pig Hogger]

If it is because of the EULA, does that mean that a 12 year old can purchase the software, click through the EULA and make/sell copies of the software under the protection of the EULA being void due to his age?

You mean that any 16 year-old can purchase any electronics products, say, a DVD player, and reverse-engineer it's software, regardless of the licence (DVD-CCA) it's manufacturer had to adhere to?

Re:How long does an EULA last?

[The Smith]

it is biding forever and they can change it at will without notice for any reason.

NO. Wrong. Read that again and you'll see how stupid it sounds. What sort of an agreement allows one of the parties to change it whenever they want to?

On the other hand, some EULAs say that the software company can terminate the agreement at any time, for any or no reason (thus revoking your right to use the software). But that's a very different situation.

Re:How long does an EULA last?

[fajoli]

IANAL, but I believe you can make yourself subject to a liability by acting within your rights. For example, if one signs an NDA, that person has effectively said that if they exercise their right to free speech, they will compensate the other party for damages resulting.

Without promising not to exercise your rights, it would be difficult to create contracts at all. Contract law does not allow one to sign oneself into slavery, but one can contract all their future productive work to an employer for some level of compensation.

Just my two cents.

Re:How long does an EULA last?

[mpe]

IE, I knowingly sell a kid a computer for $50

You might well find that the onus is on you to find out if you are selling it to a minor

and he agrees to pay me $10 a month for maintanece or something, he can keep it and I can keep the money, but he isn't bound to pay the $10 a month for mantanience.

He isn't bound to honour the contract, but if he pays his $10 a month you are.

Re:How long does an EULA last?

[mpe]

If you find a EULA that says something on the order of "by using this software you agree to...", simply laugh at loud and ignore it. They cannot impose legally binding terms upon you unilaterally.

If they could then what would stop you sending them a letter which says "by opening the envelope you agree to..."? Or even "By reading this letter/fax you agree to..."

Re:How long does an EULA last?

[dh003i]

Yes, but imo there's something shady about NDA contracts.

They mean the company doesn't want the public to know something.

Perhaps their product is dangerous, or minimally viable; perhaps their business practices are questionable.

But in the specific case mentioned, McAfee trying to prohibit its users from posting reviews about its products...this is dangerous. They're clearly trying to hide critical info from the public: obviously, their product doesn't work.

Re:How long does an EULA last?

[Lumpy]

READ any of you microsoft EULAS! It says that they can change it at any time for any reason without your notice!

I'm serious... look at the EULA for Windows 2000.

This is why EULA's are evil. If people actually read these things they would never agree to them.

Re:How long does an EULA last?

[The Smith]

Well, I'm proud to say that I gave up Microsoft EULAs 2 years ago. But I can't find any reference to them being able to change the license without notice in any of the EULAs on their website (all of which are pretty much identical). Unlike some software companies, they don't even reserve the right to terminate the license, unless you have broken it.

So, please let us see the quote from the Win2K license which says Microsoft can change the license at any time.

Absurdity

[filtersweep]

I somehow don't think it is an accident that it is difficult to access the EULA once the software is installed or that most of those UNRESIZEABLE agreements that cannot be COPIED and PASTED for readability or reference or that they come in those tiny boxes that more often than not lack a print button or that they are written in legalese mumbo jumbo or that they all but DISCOURAGE you from installing the software lest it "damage" you in any way.

Re:Absurdity

[Anonymous Coward]

Since when are any dialog boxes in Windows resizeable? My favorite example of poor interface design is the MS VC++ compiler's settings dialog. Try cramming a 300 letter include path into a 20 character wide text box - what a joke!

Re:Absurdity

[filtersweep]

At least let me copy and paste... I saw a hilarious EULA the other day that I wanted to send to a friend!

Re:Absurdity

[statusbar]

Ummm... How about the built in standard dialog box called 'File Open' ?

Windows has rudimentary capabilities to make dialog boxes resizable. The problem is that most programmers are lazy.

--Jeff

For the good of the community --

[nixadmin]

Just in case anybody missed my earlier post - I have to come clean -- I've been Karma whoring. Apologies to any and all who wasted mod points modding me up. Soon as my karma = 0, I'm finished.

Cigarettes next

[jmv]

"By buying this pack of cigarettes, you agree not to measure nicotine levels or any other compound. You also agree not no write unfavorable reviews or studies about cigarettes regarding possible diseases or addiction. In the event you become sick, you agree not to tell your doctor you are smoking cigarettes and you shall not accept any treatement for lung cancer or any other disease associated to smoking"

Re:Cigarettes next

[Maserati]

Oh for a mod point right now...

And it's also a pity that posts only go up to +5.

end run them...

[Anonymous Coward]

Ok, I might have a solution, yes a very temporary one but enough to screw with most every software Eula for a few months and cause huge headaches for the software companies that might get noticed...

How about a clickthrough killer? a program that looks through the installer binaries and eradicated any EULA. Hey If I didnt click it I didnt agree to it. (same as a buddy of mine has his 10 year old agree to the EULA... a minor can't make a binding contract and therefore the EULA is non-binding.... I know it'll never hold up in court but it makes you feel fuzzy.)

But.. if you make this eula killer a windows service that does it's nasty business silently in the background and spreadable (a virus for example) The software companies would have their collective balls in a noose. that could no longer enforce squat.

E.U.L.A.

[smashr]

By scrolling down on this page or by otherwise reading, optically processing, or byrecognizing the words written in this electronic document, the end user (hereby to be called the 'user') aggrees to sign over his or her soul to my complete and everlasting control. If the user chooses not to agree with these statements, the user must refrain from reading any single word of this post and close his or her browser window immediatly, any breach of this contract will be met with eternal damnation.

Re:E.U.L.A.

[Anonymous Coward]

EULAs are _illegal_. You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you can not afford an attorney one will be provided for you. Do you understand these rights as I have read them?

Wired article more detailed

[Robotech_Master]

Wired has a better article about this situation. It goes into more detail than the short blurb cited in this story.

Imagine if this was used by car companies...

[Ghoser777]

EULA: ...by purchasing this vehicle, you agree to never criticize our product openly...

Implication: no safety reviews. So if I go out to buy a car, I can't find out how dangerous it might be because the EULA has prevented constructive criticism from being presented to the public. Let me see, this would be bad.

The solution is, of course, not to buy from such a company. Unfortunately, most people don't begin to read EULA's; they're like the fine print at the bottom of car commercials - almost no one ever reads them, nor do I think many humans have the physical ability to read small dark print on dark surfaces in small amounts of time.

This also sort of reminds me of the Dilbert commic where by opening his software, he becoms Bill Gates' towel boy... and the house comes for him. He'd get his lawyer to help, but the lawyer opened the EULA first.

My take: if the contract signee doesn't understand the implications of the contract, they shouldn't be held liable. That would have to be determined in court, but boy would that be good news for Native Americans; if it could be retroative, think of all the land they could win back.

Enough mindless babling.
F-bacher

"Millenium"

[mangu]

No, it's not a misspelling. "Millennium" is a thousand years. "Millenium" is a thousand anuses. It took a thousand assholes to write the "Millennium Digital Copyright Act".

(sigh)

[Chairboy]

2002-02-07 23:16:27 McAfee sued for prohibiting product reviews (yro,news) (rejected)

(sigh)

Now, since I know this'll probably get modded down as 'Sour Grapes', I'll make a note on how it doesn't matter because of a flaw in the Karma Kap.

I think the karma cap probably results in a slight net loss in signal vs. noise on Slashdot.

In the Soviet Union, workers weren't rewarded for going beyond the call of duty. Productivity and quality both suffered, not because they were bad workers, but because there was no incentive. The great thing about Karma is that it has no material value, but many people will strive to gain more and more. It's a free way to enhance the quality of conversation here, and this karma cap is almost a form of Karma Kommunism, in the sense that once you hit 50, there's no incentive for us packrats to care anymore. For some people, further effort is the equivalent of mental masturbation.

The irony of the above statement is obvious, and I can't defend it on the merits of cultural superiority. I just think it's a basic lizard brain truth about the people who post here.

It's just my opinion, not any One True Truth.

Re:(sigh)

[Anonymous Coward]

what about the troll that whores up Karma 500 then trolls/crapfloods at +2 for 2 months without penalty?

Re:(sigh)

[Anonymous Coward]

You don't have to care about your karma as long as you stay over the +2 posting threshold. Since no one can see your karma, why would you care how much you have?

And second, if your only incentive to post good replies is to get modded up... well, it's a pretty poor reason, and hardly results in quality conversation. All people like that produce is karma whoring posts.

Re:(sigh)

[Anonymous Coward]

He gets ten IDs now and whores them up to 50 each, instead of whoring one to 500.

~~~

Re:(sigh)

[amitola]

In the Soviet Union, workers weren't rewarded for going beyond the call of duty. Productivity and quality both suffered, not because they were bad workers, but because there was no incentive.

And this is different from the United States how?

This is all fine if you are the OWNER

[CDWert]

What if you are not the OWNER of the machine, just someone that say USES a version of their software ON A PUBLIC computer, say at The Library or CompUSA. GUESS WHAT YOU ARE NOT Bound by the terms of the Eula, you got it.

If I never ACCEPT one of these agreements I am not bound by it.

Screensots posted online could for example be used to formulate an opinion on their interface design.

As well, publically accesable Oracle servers (yes there are some) Could be benchmarked.

WITHOUT ACCEPTANCE of the EULA

The deed to my mothers property says on it Negros, nor Asians may EVER reside on the property and if you purchase this property subsequently you agree never to allow that to happen, I live in the North too, Ohio, not exactly Dixie country. It cannot be easily removed from the Deed because of all the legal issues. This is obviously UNENFORCABLE , Because it quite obviously is an affront to Civil Rights, but its there, as a Title attorney sometimes whats on Deed, you would laugh you ass off, THIS is my opinion of 90% of EULA's all horeshit, they can say anything they want like Borlan, let em TRY to enforce it, Can you say RUBY RIDGE meets MCAFEE ?

Let em say whatever they want , Im just looking for one Juicy enough that someone tries to enforce on ME, Ill be a wealty man. Anyone know of any fis trying to enforce ILLEGAL covents in their EULA's ??

Re:This is all fine if you are the OWNER

[Malachi-TPF-]

If that were true, this could be expanded to include OEM (Original Equipment Manager) bundled software. I honestly think that since the owner of the public computer accepts the EULA, and you use it, it carries down to you. My copy of the Windows 98 EULA seems to agree with me (the EULA does not say anything one way or the other, so it is probably implied). Basically...

If You Use The Software, You Accept The EULA.

I am not an attorney though, but I am pretty sure that my argument is true. Correct me if I am wrong!

Re:This is all fine if you are the OWNER

[Anonymous Coward]

What if you do not even know of the EULAs existense? I have McAffe OEM bundled software and have been using it for several years. I did not know that there was an EULA until today when I read about it on Slashdot. Should I now stop using the software? And If I wrote a review on my past experience with MacAffe software, should MacAffe sue me, or Toshiba? And do I have grounds to sue Toshiba? It seems like I should be sueing somebody but I can't decide who. Please help.

Re:This is all fine if you are the OWNER

[Anonymous Coward]

DUDE, you are SURELY a fucking RETARD. You must LIKE the CAPS LOCK but you NEED the TINFOIL HAT to keep out the COSMIC RAYS and the GUMMINT.

Re:This is all fine if you are the OWNER

[CDWert]

You are wrong.

It is a covenent agreement, I i never agree, I cant be bound by the terms. It does in fact apply to OEM software, as if eveidnce by MS and the OEM refunding in case you DO not accept the EULA.

My point is let them try to enforce a licence on a piece of software I dont onw, It cannot be done, in a million years.

Nor would this prohibit me from making observations of another using the program, by standing behind and watching I have accepted the EULA ? I dont think so.

Now, if anythign in the end, technically, the user I am watching, or the persons computer Im using COULD be liable IF the clause in the EULA was upheld, very doubtfull.

I could as an independent entity OBSERVE and RECORD the results from an Oracle database being benchmarked, I am not liable for it being done however. Now as a Journalist I can publist those observations. Same goes for McAffes stuff. or Any other for that matter. We have Journalists going into brothels and crack houses, they arent charged with drugs or pandering. They are observer, and as such can report ANYTHING they see, If the Goverment couldnt get away with it (National Security is different) Trus me tneither can the companies. Read a EULA again, Implied my ass, it is between a SINGULAR entity, person OR corporation, If you neighbor accepts a EULA on his software, just because you live next to him if you see him using his computer are you bound by the EULA terms ? No way.

Re:This is all fine if you are the OWNER

[Malachi-TPF-]

There it is, in bold print, right in front of my face.

"A legal agreement between you (either an individual or a single entity)"

The letter of the EULA does say one person. So if you use private software in the public domain (Commercial virus scanner in a public library), the EULA does not seem to apply to you.

I am mad that I missed that key phrase the first time.

Re:This is all fine if you are the OWNER

[Anonymous Coward]

Just sue everyone, thats The Amrican Way(tm)

Re:This is all fine if you are the OWNER

[xantho]

If I only had a dollar for each post I've seen today that started with "you are wrong" or "you idiot, you're wrong" or some other combination of "you" and "wrong" within the first ten words, like "pardon me, chap, but you're an imbecile, and you're wrong".

--xantho

Re:This is all fine if you are the OWNER

[CDWert]

You a WRONG

Actually if you read the parent article , and his reply to my original post, he explictly asked me to tell hime, if he was in fact wrong, I was only be obliging :)

Re:This is all fine if you are the OWNER

[mpe]

What if you are not the OWNER of the machine, just someone that say USES a version of their software ON A PUBLIC computer, say at The Library or CompUSA

What about a far more likely situation the owner of a machine is a corporate entity (or a branch of government, etc) which is used by an employee?

Usually lawful to copy software to RAM(17 USC 107)

[yerricde]

because in the absence of explicitly stated agreement the copyright holder by default reserves ALL rigts and you can do nothing at all with that piece of software, not even run it :-(

Wrong. 17 USC 117 makes it lawful for U.S. residents to load into RAM and back up software that they own a copy of. However, in some jurisdictions, mere possession of a copy does not necessarily constitute owning a copy; this can happen in a software rental.

In the U.K., loading and backing up software may or may not be protected as "fair dealing".

EULA on life support software

[yerricde]

She had the free will to get a new job, just like you have the free will not to use a product with a crappy EULA.

OK, so what if the software that runs your life support has a crappy EULA? That is, if you don't license the software, you die. Is that free will, or gunpoint?

Public has the right to be informed about products

[dh003i]

Imagine if this was a drug, and the company line was, "You can't post critical comments about our drug, even if it almost kills you"?

Or an automobile, and you can't post critical comments about it, even if the airbag doesn't work?

Or a fire-alarm, and you can't post critical comments about it even if it doesn't alarm when there's a fire and causes your hosue to burn down?

This is plainly ludicrous. The public has the right to know if a product works, as well as both its pro's and con's.

Software -- *especially* McAfee's anti-virus software -- should be no different. We have the right to know if it actually protects us from viruses, and how well.

The fact that McAfee doesn't want to allow people to post revies of their product begs the question. What's wrong with this product? If its good, worth its salt, why don't they want people posting reviews of it?

The obvious answer is it doesn't work. I haven't used it, but its a safe bet that it doesn't work. In some critical way, its flawed.

And they don't want the public to find out about that.

No, McAfee does not have the right to prevent the public from finding about the flaws of their product. No, individual's can't sell away their free-speech right by a click-through EULA.

Rules of Restrictive Covenants

[advtech]

Typically, restrictive covenants apply to employees who leave to start similar businesses. The rules are pretty straightforward as to what you can, must, cannot, and must not do. A few guidelines:

1. Establish the time period covered, both during and after employment;
2. Identify the "protectable interest" which the document is meant to protect such as "trade secrets," technology, methods, customer lists or other proprietary information;
3. Identify an activity to be restricted, or alternatively, the geographic restriction (or alternatively the customer/route restriction);
4. Set forth the "reasonable" and "necessary" reasons for the covenant (e.g. protecting trade secrets developed at considerable expense which provide the employer with a competitive edge over others in the field);
5. Be signed by both the employee and the employer;
6. Be dated; and
7. Be periodically updated as required by changing circumstances.

But absolutely DO NOT trample first-amendment rights. That's ALWAYS a no-no!

--

Trial by Jury

[Anonymous Coward]

If the case isn't dismissed right off the bat for 1st amendment reasons, the prosecution will have a hard time finding a jury that would find someone guilty for voicing an opinion.

Andd if someone ever does get found guilty for something like this, well I guess that's just another sign of the times.

The question remains: What are you going to do about it?

Forever, in some cases

[yerricde]

If I decided to stop using that software, is that EULA still binding?

Some clauses in the EULA for AOL Instant Messenger 4.0 and later are labeled to "survive termination of this License." Because one of those terms said that I couldn't use third party software to access AOL's servers, I clicked "Disagree." My winbox still runs AIM 3.0, whose EULA doesn't have such restrictions.

If it is still binding, for how long?

In perpetuity, unless you believe in reincarnation.

Fact: EULAs can last longer than the copyright on the software (which is nearly perpetual anyway).

This is..

[Anonymous Coward]

Bullshit.

Users have a right to know what they're getting - what's next? Ford/Firestone sue over studies done to prove their products are unsafe?

Perhaps we should stop recalling faulty devices. After all, hey - you shouldn't be able to review the products to tell they're faulty and possibly life threatening anyway.

Saturday Night Worldcup Fieber

[SweetAndSourJesus]

Mouse on Mars - Saturday Night Worldcup Fieber

<instrumental>


thank you very much, ladies and gentlemen, I'll be here all week.

Re:Saturday Night Worldcup Fieber

[The Lyrics Guy]

Is Mouse On Mars an Aphex Twin project? I want to put those two names together for some reason but I don't know why.

Re:Saturday Night Worldcup Fieber

[freq]

they are both electronic.

the similarity stops there. mouse on mars makes fun bouncy interesting music, and aphex twin makes occasionally interesting music with lots fingernails on chalkboard sounds that a rabid horde of IDM drones mistake for music.

did i get it right?

Re:Saturday Night Worldcup Fieber

[SweetAndSourJesus]

freq's right. they make very fun happy electronic music. If you want to check them out, start with Iaora Tahiti or Autoditacker, both fine albums.

Oh, and I love that I got modded down for bringing up something that interests others. Offtopic? Yes. Interesting? I'm not the only one who thinks so. Mods may commence sucking my ass.

Here is another idiotic rule

[Anonymous Coward]

Bank One employees are not allowed to give references about anyone working at Bank One. All you Bank One employees, you better forget about looking for another job cause no one will hire you without references.

Is anyone suprised...

[gordguide]

... considering it's from McAfee. The guy, his company, and the people who run it now are notorious for inventive, inflammatory attacks on their competitiors; for creating hysteria and inflating virus cost estimates; and buying up rival companies to bury the competing technology forever.

In their defense, the rest of the industry isn't much better.

Try this link, for a start:
http://www.kumite.com/myths/opinion/pamkane.htm

And in other news...

[Anonymous Coward]

this story was rejected...

When mind meets machine

Researchers forging connections between brain and bionic devices

http://www.msnbc.com/news/700338.asp

About fucking time

[Junior J. Junior III]

I'm so sick of people giving me the bullshit argument that the first amendment was only intended to cover government censorship, and that corporate censorship was therefore somehow OK.

which two states?

[Anonymous Coward]

just out of curiosity and stuff...

Re:Public has the right to be informed about produ

[Anonymous Coward]

You're right... We use McAffe where I work and as far as products go, it really sucks. Most of the features are half backed and only work half the time. For as much as we pay I'm really disappointed with the product's performance. It just goes to show why they don't allow reviews such as this; they know their product blows chunks, and it is sad that they are too proud to admit it.

(off topic) (troll) (anonymous coward)

Two words:

[Cutriss]

First Amendment.

Re:Two words:

[metsfan]

First Amendment only disallows the GOVERNMENT from restricting your right to free speech. It has nothing to do with you agreeing to a contract (and, as other people have said, it's unclear whether or not an EULA is a legally binding contract) that prevents you from saying something. They're allowed to put it in the agreement. I don't like it, and I don't use their software.

Re:Two words:

[tkg]

First Amendment only disallows the GOVERNMENT from restricting your right to free speech.

Wouldn't the courts upholding of a EULA be tantamount to the government restricting our free speech, at least indirectly?

Re:Two words:

[mpe]

First Amendment only disallows the GOVERNMENT from restricting your right to free speech.

The first ammendment disallows the US federal government from passing laws which restrict free speach. Whoever might end up doing the restricting. It's scope is defined by the effect of such statutes, rather than their intent or even wording.

It has nothing to do with you agreeing to a contract.

Contracts are governed by laws. If the part of a contract restricting free speach relys upon a statute passed by the US congress then that statute is in violation of the US constitution. If it relys on case law or statute law originating from somewhere else (e.g. a state legislature) then there is no issue (on 1st ammendment grounds.)
If there is statute or case law forbidding a term or type of term in a contract then it is void though...

Re:Two words:

[BCoates]

The first ammendment disallows the US federal government from passing laws which restrict free speach.
[...]
If it relys on case law or statute law originating from somewhere else (e.g. a state legislature) then there is no issue (on 1st ammendment grounds.)

The 14th Amendment states that "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States..." which, at the least, puts the same constitutional restrictions on states as the federal government.

I suppose you could interpret the "enforce" part as a state enforcing a contract that violates the Constitution, but then, IANAL.

--
Benjamin Coates

Copyright shelters Hate Speech

[heretic108]

I wouldn't be surprised to see the bigots starting to put click-through licenses on their websites, committing the reader to not disclose or take any action against the material therein.
Could this kind of shit hold up legally?

Re:Copyright shelters Hate Speech

[Anonymous Coward]

Yep. And you have to delete the ROMS and abandonware after 24 hours, too, LOL.

~~~

Re:Free Speech?!?

[1010011010]

The government enforces contracts. "Congress shall make no law restricting freedom of speech, or of the press." Ergo, congress can make no law enforcing a contract that restricts freedom of speech, or of the press.

Seems simple.

Re:Public has the right to be informed about produ

[dirk]

Imagine if this was a drug, and the company line was, "You can't post critical comments about our drug, even if it almost kills you"?

Or an automobile, and you can't post critical comments about it, even if the airbag doesn't work?

Or a fire-alarm, and you can't post critical comments about it even if it doesn't alarm when there's a fire and causes your hosue to burn down?

This is plainly ludicrous. The public has the right to know if a product works, as well as both its pro's and con's.

Software -- *especially* McAfee's anti-virus software -- should be no different. We have the right to know if it actually protects us from viruses, and how well.

As much as I agree with your opinion, your comparisons are utterly ridiculous. This is not a life-threatening case, like your examples. This is much closer to "You can't post critical comments even if you don't like our candy bar." Comparing this to life and death situation only weakens your argument.

silly digital 1, laws are for courts, not coprs.

[twitter]

Wrong. The UCC, passed by all 50 states says that a form-agreement is a type of contract where you get no negotiations. Either you accept, or you decline.

The legally binding part is untested, however, for the most part; I'd think they'd be found legal. There are few clauses which I think would be(or should be) found illegal.

That something is a contract does not make it leagal. All contracts are subject to law, and any that violates the law is null and void. For instance, we could make a contract where I made you my slave for use of my lands and protection. You could sign forms, swear before an alter and jump backwards over a broomstick, but the agreement has no legal force. I could not call the police to catch you if you decided to run away and I'd get spanked for not paying into your social security among other things.

Re:Public has the right to be informed about produ

[Anonymous Coward]

... where I work ...

Symantec?

BURN THEM!

[Anonymous Coward]

BURN THE WITCH!

I have a thing against NAI since they turned me down for a job ;) makes me biased. but I quite hate those free-speech-curtailing-eulas :/

Re:BURN THEM!

[Anonymous Coward]

as a wicca I find this comment disgracful.

Re:BURN THEM!

[Anonymous Coward]

I believe the comment refered to "witches", not to this "wicca" thing you speak of.

Re:Public has the right to be informed about produ

[SIGFPE]

Imagine if this was a drug, and the company line was, "You can't post critical comments about our drug, even if it almost kills you"?

This is pretty close to how it is anyway. Many of these disputes are settled out of court and the victims who receive compensation often do so on condition they won't blab. I have signed such a contract in my life (not about fatal drugs however) and I presume it goes on all around me - we just don't know about it.

here we go, the censored version!

[Anonymous Coward]

You all take a good look at this lump of bull malarkey, remember what it looks like. You foul up in a firefight and I darn danged guarantee you a trip out of the bush - in a body bag! Out here, jerkeys, you keep the doodoo wired tight at all times. And that goes for you, guac-for-brains. You don't sleep on no fritzin ambush. And the next motherless child I catch coppin Z's in the bush, I personally am gonna take an interest in seeing them suffer. I play you not. Doc, tag 'em and bag 'em

-Mighty-Troll

I thought that freedom of speech...

[SIGFPE]

...as defined by the US Constitution was intended to protect citizens from the government. Isn't NY suing McAfee therefure something of a reversal of what it's intended to be for.

Good luck to 'em though - though I shan't say why I wish 'em good luck because then I might be violating the terms of my contract with McAfee.

Slashdot protected

[twitter]

If someone posts a negative personal experience with a company/product, said company could demand that it be removed due to the clause in their EULA... worse, they could demand the identity of the poster and proceed to sue their ass off.

There are three things that protect slashdot from this. They have signed no agrement and they are either a common carrier or a news paper.

The first problem is easiest to see, Slashdot does not use and will always be able to avoid $oftware that comes with a license that is not the GPL. No use, no problem no matter how stupid contract law may become.

The other protections are a little less obvious, but a freshman level journalism class and the API stylebook helps to understand the purpose and function of liability laws. Slashdot is mostly a common carrier and can not be blamed for the comunications they facilitate. The phone company is not responsible for crank calls. If you count deleting machine generated posts and blocking other denial of services "editorial control" then Slashdot may be a newspaper. A company that wishes to sue Slashdot for slander must prove that damage intent and malice, and even then the truth is the ultimate shield. One of the goals of free speech is to protect the public by alowing people to reveal damaging truths. Now if Slashdot were to tell a lie, and knew it was a lie, and knew it would cause someone distress, Slashdot would have done something wrong and deserves to be spanked. Proving all of those things is next to impossible.

Re:Slashdot protected

[sammy baby]

Slashdot is mostly a common carrier and can not be blamed for the comunications they facilitate.

(IANAL) Enh. I'm not so sure about that. My understanding of common carrier status is that once you start editing material, you can't claim to be a common carrier. Since /. editors have copped to downmodding posts and have been accused of deleting comments (a bear pit I know little about and don't intend to fall into), I suspect that their chances of claiming common carrier status are very poor

Status as a newspaper, on the other hand, I could buy into.

Alright sinners, listen up

[DivineOb]

I'm gonna run for president in a bit... vote for me and I'll go easy on you when the day of judgement comes...

Piracy vs. EULA

[pathwayX]

Assuming a worst-case scenario (EULAs are all upheld, consumers are forced to pay damages for breaking them), I'm wondering if the punishment for breaking an EULA might be greater than the punishment for piracy.

I can't help but chuckle at the following court defence:

'Your honor, the defendant has violated the EULA!'
'Er. No I haven't. I never signed anything. There's no EULA on the software I'm using.'
'WHAT? Then it's a pirated copy! Someone's removed the license!'
'...Yup.'

OT: Slashdot Karma System

[Anonymous Coward]

Karma should be averaged across posts and the net karma making up your score. Being modded +1 for a post than -1 for the same post drops my overall karma by 1 when capped, because it discards the origanal +1. It should remain neutral, a +1 and a -1 cancel each other, but at cap, a -1 is always presant even in the existance of it's opposite.

It's annoying.

Mcafeee has been out of my software plan since

[tcc]

They've publicly said they would support that FBI magic lantern backdoor crap even when it wasn't forced on them.

They make software that is supposed to PROTECT your system, now the first thing they do is a PR saying they will support it 100% in all of their product (i.e. not finding it) which by definition voids the product's safeness because anyone could *potentially* exploit this since the "feature" is now public knowledge.

I am sure there's already things like this in Windows, in firewalls or antiviral software, but it's *NOT* issued in a PR, it's *NOT* public knowledge and if someone would have to exploit it, he would have to dissasemble everything and do a hell of a tracing job. I wouldn't say anything bad if it was forced on them, but issuing such a PR really pissed me off as a system administrator. It meant that not only if you want to hack a system, target Mcafee's holes, but it made me paranoid enough to switch products. The guys behind the best antivirus software back in the DOS days really went down with the years, first screwing up windows registries, then that PR thing, now this /. story?... put that dog to sleep and move to a company that doesn't make their users feel like a cash cow, eventhough that's what they are :).

/rant

310 THINGS CMDRTACO DOES IN HIS SPARE TIME

[Anonymous Coward]

66
99
a bit of brown
a bit of ring
a-bucking
ace fuck
anal coitus
anal copulation
anal dance
anal delight
anal intercourse
anal-genital coition
anal-genital coitus
anal-genital intercourse
anal-genital sex
anal job
anal lovemaking
anal sex
analize
androsodomy
anogenital coitus
anogenital intercourse
ask for the ring
ass-fuck
ass fucking
asshole fucking
asshole plugging
BF
back-door boogie
back-door work
back jump
back scuttle
backgammon
bag
bake potatoes
baloney colonic
banging fudge
base fuckbatter the sausage
behind door work
behind the behind
bend some ham
bend someone over
bit of brown
bit of ring
bit of tail
bone in the bum
bone the bum
boogie
boom-boom
bore
boring a bud
bot
bottle
broaden someone's outlook
broom in a cave
brown
brown (hole)
brown eye
browning
bubble
bufu
bugger
buggering
buggery
bum fiddle
bum-fuck
bum-fucking
bumfuck
bumholerous fuckerous
bumming
bung
bunghole
burgle
bury one's ring
bury the bone in the backyard
bury one's ring
butt balling
butt bang
butt banging
butt fuck
butt-fucking
butt in
butt play
butt plug
butthole surfing
buttplay
chase the brown clown around the town
chocolate cha cha
chocolate chimney sweep
chocolate speedway
code brown
coitus in ano
coitus in the anus
coitus analis
coitus in anum
coitus in the rectum
coitus per anum
coitus per rectum
coitus sodomus
cornhole
cornholing
cottaging
craphole fuck
cruising the Hershey highway
daisy duck
daub of the brush
delivering to dirtbox drive
dig a ditch
dip in the fudge pot
dinner mashing
dirt roading
dive into the sky
diving in the sky
do a stern job
do it the Greek way
dog in the bathtub
dot the I
drilling for marmite
drive it up to Hilltop Drive
drive up to Hilltop Drive
drop the soap
enjoy a stroll down (the) Cadbury alley
enjoy a stroll down (the) Cadbury avenue
enjoy a stroll down (the) Cadbury canal
file in the wrong box
fishing for brown trout
fishing for trouser trout
fluff the duff
foop
fuck buttock
fuck in the ass
fuck in the brown
fudge packing
get some brown (surgar)
get some mud for the duck
get some round eye
getting some round eye
go Hollywood
going down the dirt road
going down the Hershey highway
going up the ass
going up the chute
going up mustard road
going up the Hershey Bar road
go up the dirt road
going up the mustard road
going up the (old) dirt road
Greek (greek)
Greek art(s)
Greek culture(s)
Greek love
Greek style
Greek way
greeking
gut reaming
have a bit of bum
have a bit of navy cake
have a bit of tail
Hershey Bar route
high Greek
Hindustani jig
hole in one
hole it
hose
hot dogging
impale
in the brown
in the saddle
Italian culture
Italian fashion
Italian habit
Italian way
keester-stab
kicking the back the door in
lay the leg
let's play 52 pick-up
love that dare not speak its name
mix your peanut butter
molly
moon shot (moonshot)
(the) nameless crime
navy style
ninety-nine
open up the ass
open up someone's ass
oscarize
pack fudge
pack some mud
packing mud
paint the bucket
part cheeks
part someone's cheeks
penoanal intercourse
penoanal sex
perve
phallate per rectum
pick up the soap
pig sticking
pipe
pitch
plank
play chess
play checkers
play dump truck
play leapfrog
plug
popping it in the toaster
a pot of brown
pound someone's ass
pound someone's butt
pound someone's cheeks
pound the ass (butt or cheeks)
proctophallism
pulling the train
pumping off
punk
ram
ram job
ram the dam
ramming
ream
ream job
rear entry
ride the deck
ride up the dirt road
rocky roading
Roman engagement
rump work
saddle it
sail into the wind
sailor's cup of tea
screw some ass
secret sin
sexual analism
shaft in the bum
shit stabbing
shit-fuck
shoot in the tail
shoot at the back door
shoot in the brown
shoot the star
shoot up the straight
a shot at the back door
sink the brown
siphnianize
sitting on it
sixty-six
slate bowl
slate plate
slick and slim up the old dusty road
snag
sod
sodoma imperfecta
sodomize
sodomy
sotadism
split some buns
split someone's buns
spread one's ass (butt or cheeks)
stand up job
stern approach
stern job
stir a little fudge
stir some shit
stir chocolate
stir fudge
stir shit
stir someone's chocolate
stir someone's fudge
stir someone's shit
stretch some jeans
stroll down (the) Cadbury alley
stroll down (the) Cadbury avenue
stroll down (the) Cadbury canal
tail-job
take it up the ass
take the Hershey highway
third way
throw a buttonhole on
throw a mean fuck
throw a wicked fuck
top
toss a salad
toss the salad
trip to the moon
tunnel
Turkish culture
turn over

Re:silly digital 1, laws are for courts, not coprs

[digitalunity]

Although humorous, that example is an obvious one. Did you know in Washington State, you can sign away your right to an unpaid break, as well as to your paid breaks? Just because you have a given right doesn't mean you can't give it away. It is when you are under duress that signing away your rights is against the law. It can easily be proved that you agreed to the EULA because you had to. I don't know, these are things for the courts to decide.

Re:Public has the right to be informed about produ

[Titusdot Groan]

Imagine if this was a drug, and the company line was, "You can't post critical comments about our drug, even if it almost kills you"?

This does happen with things like drugs even at such prestigous institutions as Sick Kids Hospital in Toronto.

Comment removed

[account_deleted]

Comment removed based on user account deletion

Lawyer Q&A

[cgleba]

I vote to interview a lawyer for the next Q&A. Frankly between these EULA arguments and the BSA stuff in the last article I'm frankly VERY confused :(.

Re:Lawyer Q&A

[geekoid]

Send the staff an email with that requesting. Maybe we can get them to do this.

Followup legal question

[Michael Woodhams]

If the clause is found to be illegal, is it simply deemed not to exist, or can McAfee try to find a legal replacement for it?

It is hard to see what would be a legal replacement for this particular clause (if the original one is illegal), so imagine an alternative scenario.

Say my employment contract had a confidentiality clause that was so restrictive it was overturned in court as illegal. Could my employer replace it with a less restrictive clause, or would I become free to distribute their trade secrets because the only thing that had been preventing me was the voided clause?

Re:Followup legal question

[Anna Merikin]

In most jurisdictions, any illegal clause throws out the entire contract unless specifically excluded by the judge.

Re:Followup legal question

[Michael Woodhams]

"In most jurisdictions, any illegal clause throws out the entire contract unless specifically excluded by the judge."

So if the McAfee contract clause is illegal everyone using their software (within the juristiction of the court) is no longer legally entitled to use it, and McAfee owes them all their money back?

In my employment example, my employment contract is totally negated, and I can legally distribute my employer's trade secrets but have to give them all my salary back?

I guess these are examples where the Judge would use their discretion to impose a modified replacement contract.

Re:Followup legal question

[mpe]

In most jurisdictions, any illegal clause throws out the entire contract unless specifically excluded by the judge.

Or the contract contains a clause to cover that situation and that clause is legal.
It is usually perfectly legitimate for a contract to contain "metaclauses" which cover how the contract can be ended or procedures for changing it.

Re:Followup legal question

[mpe]

So if the McAfee contract clause is illegal everyone using their software (within the juristiction of the court) is no longer legally entitled to use it, and McAfee owes them all their money back?

Unless there is applicable law granting the right to use software. Which, IIRC, is the case in the US.

The First Rule of McAffee ...

[Ambush_Bug]

is don't talk about McAffee.

The second rule of McAffee is
don't talk about McAffee.

;)

Libel/Defamation laws should override EULA's

[marko123]

If a company wants to sue you for lying about their software, they should be able to sue you. But they should not be able to prevent you from talking about it, analysing it, or comparing it.

In the UK, the burden of proof is on the defendant to prove that what they said is right, but in other countries, the burden of proof is on the complainant to prove that what was said was a lie.

Re:Libel/Defamation laws should override EULA's

[MikeBabcock]

I agree with you, but I've noticed over the past few years that a great many software companies have this type of clause (including Microsoft and Oracle).

I always thought that "fair use" laws in the US would allow someone to write about any copyrighted thing, but licensing is a different question -- as another poster pointed out, perhaps letting a 3rd party "agree" to the shrink-wrap license before you yourself review the product would get around the issue.

Re:Libel/Defamation laws should override EULA's

[marko123]

Nah, that probably wouldn't work work, because you were not licenced to use the software without agreeing to the licence.

Re:Libel/Defamation laws should override EULA's

[BCoates]

(in most states of the US) You don't need permission to buy software you bought, just as you don't need permission to read a book you purchase or listen to a CD you buy. The law says you have those rights (and more) just by buying the product, unless a different system is agreed to before the sale.

The sheet of paper that says "This product is licenced, not sold" (which you don't see until after the sale is complete, i might add) may or may not change that, but if you haven't agreed to it, or the product has no EULA, you're free to go.

IANAL, but i've read the appropriate parts of the UCC...

--
Benjamin Coates

Bullshit

[Galvatron]

You can absolutely sign away your free speech rights. What do you think an NDA is?

Re:Bullshit

[dh003i]

In response to:

"What do you think an NDA is?"

In a word: Unconstitutional.

Re:Bullshit

[Galvatron]

You seem to misunderstand the constitution. The constitution specifies what the government can and cannot do. The government can't tell you what you can and cannot say (except of course in the case of military secrets, which is kind of a grey area, but so far the SCOTUS seems to consider that in the fire in a crowded theatre department). But there's nothing in the constitution that says you cannot enter into a contract that forbids you from saying something, or forces you to say something. In fact, actors routinely enter into contracts to say exactly what is printed on a script that is handed to them. Do you think this is unconstitutional as well?

Re:Bullshit

[dh003i]

And if the government enforces such contracts which prohibit me from saying something, or force me to say something, then the government is telling me what I can or cannot say.

Now is the time....

[Anonymous Coward]

For everyone here to post exactly one awful review of NA software. Put it on some free web site, and report it to google.

Ideally, the author wouldn't actually own any NA software: that way, the author wouldn't even be in violation of the NA EULA.

Not agreeing to the EULA

[Dr Fro]

Sorry if this is a tad off-topic but...

What happens if I open the shrinkwrap to a CD case but when I run the install program I don't agree to the EULA? I can't return it anywhere and it's completely useless to me...

Anyone try doing this and then accusing someone of fraud for selling an unusable product?

Way around this?

[ColaMan]

Er,

Couldn't you get around this by :

1. Getting a friend to purchase and install product.
2. Sit next to friend and watch them use product.
3. Write scathing review.

Anyone?

Re:Way around this?

[Anonymous Coward]

I just downloaded virus scan evaluation version here. I didn't see an agree button on any website, so whats the problem?

Re:Way around this?

[st0rmshad0w]

Better yet, have Jimmy the neighbor kid install the software, little Jimmy of course being under the legally allowed age to enter into a contract.

Re:Public has the right to be informed about produ

[dh003i]

McCafee software protects users against virus'.

For computerize life, virus protection IS life or death.

Furthermore, in corporations, or even privately, information may be worth thousands of dollars, or countless hours of time. If its destroyed by a virus, that is very serious.

As serious as life or death? No. But its a question of magnitude, not type. This issue is simply a scaled down issue of those. If its wrong in those cases, scaling down shows its wrong in this case, because its different in scale (magnitude), not type.

There's good reason they have that in the EULA

[technopinion]

Since I've uninstalled their VirusScan product, the EULA doesn't apply to me any more, so I guess it's safe to say this...
The product sucks. It was full of bugs, it caused my machine to be unstable and crash, and I'll never buy another product from them as long as I live.
If they didn't have that clause in the EULA, they would be out of business by now. (ok, I'm not actually naive enough to believe that). Given all the positive reviews in the big magazines, it's obvious they didn't use the product for more than a few days.

Re:There's good reason they have that in the EULA

[Maserati]

I agree. I tried VirusScan Online. They were very helpful in getting IE repaired so it VSO would run - it relies on IE's dll's - it's essentially a Javascript application.

But even after hours in chat with people typing scripts back at me VSO never worked. I demanded, and received a refund. Having received no positive benefit whatsoever from their product, NA has no claim against my conduct whatsoever.

So I'm quite free to say that VSO sucks dirt through straws. It's unstable, won't run if IE isn't working right and they provide (in the final analysis) poor tech support.

The following chat transcript has been edited for anonymity. Note the plethora of boilerplate in the transcipt. Also note that there were lags of a couple of minutes other than the one mentioned in the transcript. Finally, this chat was Just To Get The Download Page to Load so I could download my $24.95 purchase.

Lastly, I'd like to recommend anything from Symmantec for virus protection.

Here is your transcript:

You have been connected to McAfee tech support..
McAfee tech support.: Thank?you?for?contacting?McAfee.com?Clinic?Support ?Center.??My?name?is?Sunetra. What are the exact symptoms you are experiencing?
Me: I just purchased the VirusScan Online product, and the download page will not render in IE 5.5sp2
Me: I get a scripting error on the page:
Me: http://clinic.mcafee.com/clinic/ibuy/campaign.asp? cid=2661
McAfee tech support.: I would?be?happy?to?assist?you?with?that.
Me: So how do I download the product ?
McAfee tech support.: Did you try cleaning the cache and adjusting the browser settings?
Me: Settings are at default
Me: and I just cleared the chache
Me: the error is:
Me: Line 304, Char 1, Error: Object Expected, Code 0, URL http://clinic.mcafee.com/clinic/ibuy/campaign.asp? cid=2661
Me: does that page work for you ?
McAfee tech support.: Do you mind if I place you on hold for a couple of minutes while I research that for you?
Me: ok. The specific IE version is: 4.40.4807.2300IS
Me: errr, 5.50.4807.2300IS
McAfee tech support.: Thank you for waiting. I'll be with you shortly.
Me: so long as this gets working,the time is well spent
McAfee tech support.: Me, I understand your concern. If at any time there is something you do not understand about the resolution, please feel free to stop me and let me know. I want to ensure we resolve your situation, and that you understand the resolution completely. Does this make sense?
Me: that makes sense, lets proceede
McAfee tech support.: You need to repair the browser, for which I shall mail you the instructions.
Me: okay, send 'em over
Me: user@domain.org
McAfee tech support.: I shall mail you the instructions at the end of the session. Do you have any other questions before we end the session?
Me: then after I fix my browser, the download will work ?
McAfee tech support.: Yes, it will certainly work.
McAfee tech support.: Me,?have?I?resolved?this?issue?to?your?complete?sa tisfaction,?on?this?interaction?
Me: yes
McAfee tech support.: Thank?you?for?visiting McAfee.com Support Center. I have appreciated this opportunity to support you. If you have any additional questions or concerns, please let us know and we will be happy to support you further.

So what is in the review that is so horrible?

[PotatoHead]

What is it? Did they just say the product was bad, or were there things stated that go deeper?

The willingness to persue this action really makes me wonder what they actually have to hide.

It's a contract, deal with it

[ChemEGod]

All this bitching about "losing our first amendment rights" is ridiculous.

If somebody bought all of my guns, would they be depriving me of my 2nd Amendment rights?

If somebody bet me $5 dollars that I could go a whole day w/o speaking, is that depriving me of free speech?

If you don't like their terms, don't buy their product. Duh.

Its a contract, not a law (yet)

[nolife]

I can see a few ways that someone could still legally review the software and publish the results. What if you have a friend or a guest over for dinner that happens to be a publisher.

Tell your friend exactly how bad it sucks.

Yet your friend use your computer with the software that sucks.

Let your friend look over your shoulder while you are using the software that sucks.

When it is all said and done, YOU are the one that agreed to the EULA, not your friend.

EULA is not a law, it is a contract. Laws may be restated in the body but no new laws are created in an EULA.

Even if you did publish your own results, whats the terms for breaking the contract? Maybe they can take the software back? I am not talking about copying the software and giving it to a friend, that would violate the LAW.

To get the law involved for you publishing results against an EULA wishes, they would have to sue you in court for violating a contract. Only a court can decide if a contract was broken. This is not like a case where you are offering copyrighted software from a leach site (which violates an existing law). In a court, what are the terms going to be? Well I would suggest that yes it looks like I did violate the contract by publishing benchmarks, you win, here is your software back, case closed. Not that easy but why should a software contract be any different then a car lease, rental agreement or service contract. Did you ever get screwed buying a new or used car and try to fight the dealer for violating the contract? I can tell you that calling the police is not going to get you anything.

Imagine an EULA for a new Ford Mustang claiming you are not allowed to race the car at a track, state MPG, top speed, hp, and lateral G's on a skidpad.

Mood Logic Winamp plugin has same restriction.

[cyril3]

I looked at the eula before it installed to see if it was adware (its not obvious) and saw just that same clause. Will nullsoft now get into trouble because of all the adverse comments the plugin gets in the forums there. Many users don't like it at all it appears.

Linuxcad, too

[rwuest]

From the LinuxCad users guide:

YOU MAY NOT:

4. Publish online or elsewhere any of your opinions or experiences about this program without prior approval of the materials you want to publish by Software Forge Inc.

My experiences with linuxcad were bad. Real bad. My opinion is that it stinks. I wonder why they added that clause after I wrote-up my experiences.

Re:Free Speech?!?

[Pig Hogger]

The government enforces contracts.

Oxdung. It's the COURTS that do. They are part of the JUDICIARY branch of the State, not of the legislative (the government - national/legislative assembly - senate) nor executive (the president - governor - chancellor).

It's really tiring to see uneducated people call everything that comes from the State as being from the "government". The government is but a tiny part of the State.

Not about Free Speech, it's about PUBLISHING

[Anonymous Coward]

The specific clauses in the EULA in question are (according to the lawsuit):

****
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 this
product without prior consent from Network
Associates, Inc.
****

This doesn't appear to restrict people's personal opinions at all. There's nothing here that prevents anyone from bad mouthing a product to their friends.

The key areas are:

"Benchmark Tests" - Normal users don't sit at home and do "Benchmark tests" on software, running and testing it's performance on a system versus others. Generally only magazines and certain companies do this. This wouldn't appear to affect your average user at all.

"Publish Reviews" - Normal users don't generally "publish reviews" of software. At a stretch, they may post some comments about a piece of software on the web somewhere, but not a full-fledged software review. This also appears to not be aimed at your typical computer user.

They also appear to have only used this clause once, more than 2 years ago, against "Network World" magazine, again referenced from the lawsuit.

And according to the Wired article, the Network Associates Lawyer says that the reason this clause was in place was because they did not want people publishing reviews of older products, i.e. they wanted reviewers to check in with Network Associates to see that they were testing/benchmarking the latest version.

I see no reason to attribute nefarious motives to the company. Maybe the products suck. maybe not. It just seems that they wanted to make sure they were getting reviewed/benchmarked fairly.

Re:Free Speech?!?

[Peyna]

The government is everything, not just the legislative branch. The government delivers the mail to my mail box, they pull me over when I'm speeding, and I send them almost 20% of my paycheck every year.

Re:Usually lawful to copy software to RAM(17 USC 1

[PaulBu]

Hmm, actually I meant using (as in actually executing) a copy of software of which you do not own a copy, but picked it up from a friend who happened to sign an EULA which later was found invalid (in parts, maybe also in whole).

An end to all fansites

[Anonymous Coward]

So does this mean an end to all anime,dbz,music,movie fansites that host images of show "X"

Register Article also available

[bief]

The Register is running this article further describing the situation.

Clause in Contract for Over 10 Years.. .

[Anonymous Coward]

This "no publish" clause has been in their contract for over 10 years. I'm suprised that someone has finally stepped to the plate to challange it.. .

Copy protection - pure and simple

[Anonymous Coward]

I'm ashamed to say I'm a shareholder in NA - and I think this sucks... Just like copy protection, it's doomed to fail because there's no way to enforce this.

NA restricts reviews, so don't call it a review, call it an OPINION. Last I heard, I'm entitled to my opinions, and if NA wants to go head to head, I'm filing a Federal Lawsuit against them for violation of my civil rights.

Meanwhile, as they're going nuts over opinions, I'll write a fictional story. Any similarities to the package known as Network Associates: Whatever is purely coincidental... Now they'll complain that I can't write fiction - time for another federal lawsuit.

So I'll call it a Consumer Alert. They can sue me - and I'll turn right around and sue them right back for again violating my civil rights, and for undertaking unconscionable actions designed to prevent a competent evaluation of a purchase prior to first sale. I'll also file push for the FTC to investigate them for fraudlent and deceptive practices (gee Bob, there's nothing bad about our product in the press - so it's GREAT!), unfair competition, and whatever else I can dig up.

In short - these companies have got to learn that when I BUY the software, I get to USE the software, SELL the whole kit-n-kaboodle to whomever the fuck I want when I'm tired of the software, and get to TELL anyone I want about my experiences. If the company doesn't like my review - then stop acting like 3 year olds and improve the god damn product.

But to allow NA to enforce this inane EULA covenant is analogous to Firestone saying "if you buy our tires, and they explode while driving, you can't tell anyone about it or sue us...". That'd fly like a Lead Zeppelin, so what makes software so different?

Full Text Available

[bief]

The New York State Office of the Attorney General has made public a pdf file with the full text of the petition. Makes for some interesting reading.

Here we go, the censored version!

[Anonymous Coward]

You all take a good look at this lump of bull malarkey, remember what it looks like. You foul up in a firefight and I darn danged guarantee you a trip out of the bush - in a body bag! Out here, jerkeys, you keep the doodoo wired tight at all times. And that goes for you, guac-for-brains. You don't sleep on no fritzin ambush. And the next motherless child I catch coppin Z's in the bush, I personally am gonna take an interest in seeing them suffer. I play you not. Doc, tag 'em and bag 'em

-Mighty-Troll (very mighty indeed)

McAfee products suck ass

[ader]

(Disclaimer: I've never knowingly bought or used a McAfee product, so I am not bound by the terms of the license. ;-)

McAfee products are shit. I mean, really, really, faecal. Not quite as bad as having your face shoved in a blender while a lawyer reams you in the ass, but doubtless the next release will address this. Installing this software is the IT equivalent of picking up an STD from a prostitute: not only are you unpleasantly infected, but you paid good money for the experience. Like I say, totally crap. Whooohooo! Ya hear me?!

I think I've proven that it is perfectly possible to give a bad review to a product, providing you haven't actually used it. So the IT rags simply have to review everything the same way they review Linux software. Equality at last!

Ade_
/

this would directly affect aminaked.com

[Anonymous Coward]

I run a free "photo-sharing" site called AmINaked.com.

This decision effects me, doesn't it?

quick review of McAfee AV

[markj02]

The product sucks and the customer service sucks.

I tried installing McAfee AV on a vanilla Windows system (Win98, I believe), right after installing Windows itself. The retail version came with a CD whose first action was to tell me that it was out of date and that I needed a 15Mbyte download. After waiting forever for that to complete, it crashed halfway through. When I tried to take advantage of their return policy, called them multiple times to get a return authorization and eventually sent everything back via registered mail with return receipt, I never heard back from them.

Oh, and as far as I'm concerned, the contract is invalid: McAfee never lived up to their side of the bargain. So, I don't feel bound by any gag clauses in it.

This sounds famillar

[n8twj]

This sounds like the ongoing lawsuit Lockdown Corp filed against independant Keith Little for the negative review of their security software package called Lockdown 2000. There's a group helping Keith fight back.

How about a "positive" review instead?

[TheFlu]

Maybe we could all get around this, if NAI wins by posting "positive" reviews instead of negative ones, like this:

"I use the latest version of McAfee Anti-virus and let me tells you that product is frickin' awesome!!!! It hardly ever catches the latest viruses, in fact it has a 100% success rate of never catching the most current crop of viruses.

In addition to all the other benefits this incredible product supplies, it also successfully connects to the Internet every morning and sends handy information about my surfing habits and computer configuration back to Network Associates, all without me having to push a single button! Go out and buy McAfee Anti-Virus now, you won't be sorry."

Wait until the SSSCA passes ...

[jc42]

One of the more "interesting" provisions of this proposed follow-on to the DMCA is that companies will no longer have to include in their EULA a ban on publishing criticism. The SSSCA will make negative criticism illegal by default. Then we'll be allowed to publish all the praise we want, but if we publish any facts that show problems with a product, we will be classified as terrorists.

There's strong corporate support for this law. Sounds like we might be in for some fun legal stories over the next few years.

Re:silly digital 1, laws are for courts, not coprs

[mpe]

That something is a contract does not make it leagal. All contracts are subject to law, and any that violates the law is null and void.

Which is why most contracts contain a clause which says "if any of this isn't legal then the rest still stands". (Assuming this kind of clause is legal, a statue to void such a clause would have interesting consequences...)
It's not unknown for commercial entities to put all sorts of clauses in their contracts which are at best questionable.

Don't review the products

[flanksteak]

Wouldn't these limitations just encourage the press to ignore companies that limit what they can say?

It seems like a reviewer could write: 'We won't talk about these three products because we're not allowed, but there are some others that we like, and here's some information about them."

EULA

[aroundsomewhere]

You could always argue you didn't use the software, instead a person could say they where looking over the shoulder of someone who was. Therefore you wouldn't be bound by the EULA.

Simply Ban McAfee products

[MrIcee]

This article is unbelievable... reviews of products are protected under free speech laws -- as long as issues such as slander, etc... are not involved.

Because of McAfee's approach and rules... it has prompted me to place a complete ban on all McAfee products in our corporation.

I think that others, with similar control over their company policy, should consider doing the same. It is important to preserve the ability to talk about software that is good, or bad, so that people can make informed decisions.

The email I sent to them reads as follows:

• This email is to let you know that we have banned all McAfee products from being used in our corporation or by our employees on corporate computers.

  The reason for this is your absurd attempt to squash free speech in attempting to block reviews and comments written about your software, by customers, or, for that matter, anyone who cares.

  Restrictive covenants are illegal... and we will not deal with companies who try such tactics.

  If you want to insist on good reviews by customers... try writing good software instead of resorting to prohibiting free speech.

  Your company has NO ALOHA.

Take a "clean room" approach.

[volpe]

Just like the way people do when reverse-engineering and re-implementing, except now you apply the same concept to writing reviews in compliance with EULAs. For example, Bob buys WhizBang version 1.0 with his own money. He installs it on his own computer and starts using it. Alice sits down next to him and watches him use it. Alice never touches the media, or the computer. She just asks Bob questions like "What happens if you click that thing over there", and takes notes while Bob does all the work. Alice can then write any review she wants, without violating any EULA that she never agreed to, explicitly or implicitly, in the first place.

Re:Free Speech?!?

[mpe]

Oxdung. It's the COURTS that do. They are part of the JUDICIARY branch of the State, not of the legislative (the government - national/legislative assembly - senate) nor executive (the president - governor - chancellor).
It's really tiring to see uneducated people call everything that comes from the State as being from the "government"

Judiciary is a function of government. Which may or may not be separate from other government functions.
With the US federal government even though the judiciary, executive and legislature were intended to be separate the way the two dominant political parties work renders that a nonsense in practice.

Is there a lawyer in the house?

[geekoid]

What happens if I use a piece of software someone else installed and click "I accept" at the EULA?

AM I bound to that EULA?
I see where there could be a clause for the original software saying "all people who use this are bound to it" but is that even remotly acceptable contract clause?

Re:Free Speech?!?

[Pig Hogger]

Judiciary is a function of government.

No. Government makes laws; those are the dudes you elect. It is the STATE that has a judiciary function.

Re:Public has the right to be informed about produ

[WPL510]

Actually, if the automobile industry followed the lead of software eulas, safety would be irrelevant as the manual would contain a clause stating that the car was not designed for high-stress life/death activities, and the maker could not be held responsible if misuse of the product (ie, taking it into traffic) caused injury or death to the user.

The Amazing EULAgen

All of this misses one big question...

[Sysanalyst]

Which is of course, is the EULA truly legally valid and binding? It still has not been truly tested in a court of law. IANAL, but contracts have to meet certain conditions to be valid, and you can not simply sign away many types of rights, at least according to the federal govt's fine class on contracting that I have been taking...

Two words:

[geekoid]

Big Money

Re:silly digital 1, laws are for courts, not coprs

[seann]

Here in canadia you can not sign away one of your paid breaks. You get it, or you work without pay.

However, you now have to sign to work over time.

Katy!

[Anonymous Coward]

I like katy! I fucked her until she died!

Apatheic?

[Anonymous Coward]

Not trying to be a coward here but it seems to me like there are a lot of very apathetic people posting.

There seems to be this consensus of 'if you don't like it, don't buy it'. That sounds a lot like 'oh, well, it's just a corporation, I mean, they can do what they want, if you don't like it don't buy it then they won't get any money, but just because they're doing something unethical and possibly illegal is no reason to crack down on them, I mean, nobody has to buy this stuff right?'

IMHO that's the same as having porn on daytime tv because 'you can always change the channel, right?'

Cyberbandal

[Anonymous Coward]

http://goatse.NOSPAM.cx

CyberBandal

network associates sued

[Anonymous Coward]

This is an organized attack!

Cyberbandal 1 or 2

Re:NDA's

[BCoates]

NDAs are real contracts, signed by both parties.

This is not.

Also, the laws in question may distinguish between employee/employer or business/business NDAs and someone attempting to put a restriction on journilists in the general public.

--
Benjamin Coates