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California Court: EULAs are Inapplicable in Some Cases
(outer-limits) writes "In a significant ruling in a California court, a judge has ruled the standard EULA licensing agreement to be invalid. This must be the biggest upset in software licensing ever. No more are we powerless End Users of software, having to agree to every restriction a software company makes (Expect an appeal on this, though)." Note that this is about the resale of bundled software, so it's not like EULAs are dead, but this ruling could have broad effects. Update: 02/12 03:45 GMT by J : Yeah, this is a
repeat - sorry.
When did the whole notion of buying software die, makeing licensing become necessary?
To make laws that man cannot, and will not obey, serves to bring all law into contempt.
--E.C. Stanton
Anyone got a mirror of the actual decision?
It seems, according to the article, that this ruling says that if you don't agree to the terms of the EULA, you have the right to resell the software, but not to use it.
You still have to agree to the EULA if you want to use the software.
of course you can resell something you pay for that you don't use. this is NOT going to be broad reaching... this is very similar to best buy's software policy: if you don't open it, you can return it.
MARIJUANA, SHROOMS, X: ONLINE?! - E
Like the article said...this is to important to the software industry. They will appeal this, and in the event that they lose in the appeal process, they'll buy some legislation which gets around this.
"Don't blame me, I voted for Kodos!"
"The Court understands fully why licensing has many advantages for software publishers. However, this preference does not alter the Court's analysis that the substance of the transaction at issue here is a sale and not a license," Judge Pregerson writes. If you put your money down and walked away with a CD, you bought that copy, EULA or no EULA." Quite a weakening of the standard 'anything goes' rule for EULAs.
Note that this is about the resale of bundled software, so it's not like EULAs are dead
...aww, foo. <sighs> So much for instant-reaction happiness.
The main thing is it has to be a sale. Then the stronger consumer protections kick in.
It's like when you buy a "package" of four tires and a rebalancing.
You can use the rebalancing and resell the four tires.
Note that those states with UCITA (silly idiots) are SOL, of course. But the rest of us can now resell bundles that we don't use.
Anyone want to buy some decoupled games from me?
-
--- Will in Seattle - What are you doing to fight the War?
Is it that thing I press "Next" on before entering the serial I got from astalavista?
What were they saying in it anyway?
Some of the stuff that comes bundled really makes you wonder if it could survive separately with a price sticker on it.
That may be the real reason the software publishers don't want you to have the right to resell it. The real value will become immediately obvious.
Anyone want to purchase these bundled clipart CD's? Anybody? Bueller? Bueller?
The Softman case is significant, if not for anything else, than for the plain, common sense, view that whether or not a sale is a sale, depends, upon whether or not the sale is treated by the parties as a sale. Thus, a person who purchased the software, but who has not loaded the software (submitting to the click-wrap) is typically able to rely upon the first sale doctrine (the rule that allows you to resell books that you have bought).
I've bought at least 3 PCs that came with Microsoft Windows ME - an OS that I never ever used. Is this considered "installed" software? Although I never used it (Linux boxes all the way!) , it sure did come installed on the PC I purchased. And I sure didn't buy the Microsoft software on a CD... It was just preloaded on there.
Alas, this decision may only be a first step.
As much as I like the idea that individuals should be able to resell software they bought that they did not use, I don't like the ruling in this particular case. Softman was being bundled Adobe packages and breaking them up and selling them individually for a profit. This is something different than Joe User selling his copy of Windows 98 that he got with his computer that he doesn't use. This is a company basically ripping off Adobe. They are selling the bundle cheaper, because it is a bundle. What will end up happening if this takes off is that bundled software will no longer be cheaper than the individual packages. If you want Photoshop and Pagemaker, you will have to buy them individually, because there is no reason for Adobe to sell the bundle that Softman then buys, breaks up, and resells the individual pieces and takes sales away from Adobe.
For individual users, this would be great and make sense and help them out. This will do nothing but hurt the end users is companies are allowed to do it though.
"Information wants to be expensive" - Stewart Brand, the same guy who said "Information wants to be free"
By deciding that a license wasn't a license, the judge has made an astonishingly large and sweeping precedent, which automatically means that this will be in appeals for many many years. Simply invalidating a license (or any clauses of it) for a software package has huge impacts - f'rinstance, if the precedent holds that a license isn't binding without a more formal agreement than just the "if you click/open the seal/download/&etc. you are bound" bits we're used to seeing, what about the GPL? If a download is equal to sale transaction, then someone could just use whatever bits they liked and forget about making future source free - hey, it's mine, the license isn't worth anything, I can resell/reuse at will.
As much as one would like to see the worst offenders in the idiot EULA game get smacked, I don't think that just deciding that the resale/reuse portions of what had been considered a valid contract are null is automatically a Good Thing. Try to remember that Open Source is protected by a license, too.
-reemul
You're just jealous 'cuz the voices talk to *me*
Somewhere along the line, people forgot that ownership of an object meant something. Corporations have been using this to their advantage ever since. If I legitimatly buy a product, why is there any legal issue to be resolved in my selling it to another person, as long as this object isn't duplicated in the meantime?
Now of course, this brings up the even larger discussion about the legitimacy of copyright law to begin with. I'm unclear on how creation implies ownership... Take the case of geneticly modified creatures. Can a corporation really create and then OWN all resulting creatures? What if these beings have minds of their own? I doubt a super-rat made in labratory test tube would take kindly to being owned body and soul by it's so called "creators." (Don't get me started about the legitimacy of THAT word.)
But let me get back to my question of ownership. Inanimate objects are capable of being possessed, not simply because they can't argue (unlike slaves for example) but because they have no will. If you possess, do you not also own? Yet in our society, somehow ownership is still retained by the corporation. The end user is, of course, relegated to use. I don't know that this makes much sense. One of the basic, fundamental principles of humanity is the idea that things have innate value. I would argue, that this value comes from the idea of possession, that you somehow own the object, and thus it is valuble.
Did you know that the vast majority of land pollution is on publicly held land? What is owned by everyone is valued by no one, as I once heard. Because ownership by everyone isn't true ownership. One of the most powerful things I've ever seen was to go to a poor neighborhood in my city and have someone point out to me the houses that were owned, and the houses that had renters. The home-owners took 10 times as much care of their houses, even though they were very poor. (They had been helped to lease and own these houses through a new city program.) The change in atmosphere was striking and profound. If it's mine, I'm not going to mess it up!
With software, EULAs are ridiculous. With art...(or life) I don't know. But the digital age has certainly brought challenges to our economic systems.
The license is still valid, it just doesn't apply to someone who hasn't agreed to it by clicking the "I Agree" button or by breaking the seal on the box.
Once you open the package, you're SOL. Just like with the GPL.
It's text, but I assume it's official
This is great. This means that draconian EULAs might not have the legal punch that the writers' expected them to. I mean, hopefully it will force EULA writers to not be as anal about what they put in EULAs. I won't give any specific examples, because anyone with Microsoft software will be able to open up some sort of EULA and read for themselves. Really, its all a matter of what the court deems fair and unfair. Microsoft has some pretty bad EULAs, and I know most people would NOT agree to them if they were written in plain, every day english.
Job? I don't have time to get a job! Who will sit around and bitch about being broke and unemployed then?
The sale of software should in general, follow the rules and protections of a sale of goods.
This would prevent the slipping in of "contract" style wording, and the attendant need to have every software license reviewed by a lawyer. Sure, really wild terms in a software license might get thrown out in court, but that will take time and more importantly MONEY!
This is why UCITA is 3 or 4 or 100 times as bad as the current situation. UCITA allows all software to be contracts, and formalizes the legal standing, so contracts become the norm.
As a follow-up, I beleive that all software should also be subject to normal liability/tort law. If software doesn't do what it's supposed to do, and the vendor didn't take adequate care to ensure that it would, the vendor should be liable for damages.
I made this point a day or two ago, but again...
Sure, software might cost more to produce if it had to survive a "reasonable" test for correct function. But how much do the companies that employ us as consultants/help-desk people/network engineers, etc, spend having us chase bugs down that shouldn't have been there in the first place. Add that to the "cost" of the product, and you have the "real" cost. And I submit that it's way, WAY higher than most of us realize.
Until there's some real threat to shipping crappy software, the usual suspects will continue to "ship early, fix bugs later" if ever. Oh, and while you're at it, "add lots of fluff, and cool UI elements" (Does this remind anyone of Windows XP - a totally gross fluffy UI (my opinion) and a HUGE GAPING hole in security.) Adding some teeth to the legal system will give everyone a _chance_ to slow down and get things right. The shareholders will understand, the board of directors will understand etc.
Until we all require decent software that runs right, and a sale process that is fair, and understandable, we're going to continue to get screwed. UCITA and LONG LEGAL EULA's will always favor the software vendor. The court system may now be (finally) realizing that software isn't that much different than any other good, for example, shovels or cars or VCR's. These goods don't (AFAIK) have EULA's, and are subject to serious repercussions should they work incorrectly. Plus your ability to force the vendor to refund your money is much greater.
Repeat after me...
"Software just ain't that different from regular stuff we all use every day" In fact, software/firmware is in lots of devices, and we don't accept similar restrictions in their use...what about cell phones. Did you have to agree to a EULA to use it? Does it reboot/crash often? How about your VPR or Toaster or Car or Microwave?
Screw EULA's. Screw UCITA. They're both just ways to tip the balance of power WAY over to the manufacturer/seller. They don't offer any protections that a resonable seller needs.
Cheers
At least someone got the irony...
Don't click here. BT will enforce intellectual rights and sue for eac
Didn't read enough of it. (Bows head in shame)
I don't know what the XP EULA states, but I think it's the weird stuff in some of the EULA's that get people worked up. Like the Sprint Broadband EULA that says they can come and get into your house anytime and search.... among other things, or how about the news SprintPCS EULA (Oh I bet you didn't read?), it basically says all your conversations are recorded (voice and text messaging), and that you have given up the right to sue them back.
Those are things in EULA that I would like to be remove, everthing else is fine.
--
find HU
1. It'll be appealed. Micro$oft has, what, $36 billion, available to buy the verdict it wants.
2. It'll be bypassed. M$ is getting to the point where all known computers will be individual parts of its one system. At that point, all software will be licensed to you by M$, subject to terms and conditions M$ dictates. Don't like it? Don't compute.
Thank God for Linux, is all I can say. I think billg is running off a Howard Hughes-sized springboard in his desire to own *EVERYTHING*.
668: Neighbour of the Beast
I've found the best way to return a CD is to break it before returning it. That way the store will replace it and be able to recoup some money from the record label for faulty merchandise.
Now, if you want to return it and get your money back after opening it, you're SOL anywhere you go except for Costco.
Someone should buy an OEM copy of XP from someone who got, but never used it (that is, they installed linux/bsd/whatever or even their old copy of win98).
They should then install it: if it doesn't work, Call microsoft to get it working. Likely they won't allow it, so lawsuit. Preferably small claims, as this will limit their ability to throw money at it.
I write software for companies so I can eat. On a contract I don't retain ownership of the code, I could usually care less. But I include a clause that says something to the effect that my software is good for no particular purpose and that if it breaks, I'm not liable. This is a good thing for small time guys like me. As I can't really afford to run to a lawyer all the time. But if that doesn't hold up anymore, am I going to face trouble when my call into a Win32 API hangs?? I call LPTRSomeWin32Function() in my software, it blows up and end user sees an error box pop up in the application that I wrote. Is the court going to tell me that I'm liable for broken software when the libraies I use that I didn't write cause the process to go boom?
I don't know... this is all food for thought. If I'm sued can I turn around and sue the developer of teh library? If I'm linking into glibc and it breaks can I sue GNU? Richard Stallman?
Check out my podcast: DreamStation.cc Video Game Show
One thing that I have always been curious about with EULA's has been how they can be considered binding if your agreement to the conditions comes after the completion of the contract (when you pay at the register). I don't know about US law, but I did study Australian contract law, and I seem to remember quite clearly that conditions added to the contract after the acceptance of an offer have no legal force.
I also remember cases we studied where taking something from a shelf to the cash register and paying for it is considered acceptance of the contract. If you can't read and accept the conditions of the contract before you accept the offer (ie pay the purchase price) then you shouldn't be bound to those conditions.
The Linuxjournal article indicates that I can now resell the bundled Windows copy (well, the restore CD, if I was lucky enough to get one) and that's equivalent to getting a Windows refund. But it isn't:
- Many computers these days come with Windows preinstalled in a hard disc partition, so there's no CD to resell. I doubt very much that the ruling extends to letting you copy the HD partition to CD-R and sell the CD-R. You're definitely copying something if you do that.
- Even if you get an install CD, chances are it will only work on the exact computer model that it came with. There's a significant aftermarket in install CD's for various models of laptops, but they generally don't sell for nearly as much as generic OEM Windows installation CD's.
So while being able to resell bundled software is better than nothing, it's less good (even in pure monetary terms, not counting the resale hassle) than not having to pay for the unwanted bundled software in the first place.... (in my opinion) was that the Judge found that because:
1) A one-time fee paid for the software and the license; and
2) The license granted use of the software forever for this one-time payment;
Then the transaction became subject to all the ordinary laws about buying any good.
Implied in that (again, as I see it) is that SW developers can get out from under this judgement by employing:
A scheme similar to what MS is proposing for corporate clients (the annual subscription); or
Creating Software that expires; or
some other, new licensing scheme designed to thwart the ruling.
Standard Disclaimer: I am not a lawyer and I always seem to interpret these judgements differently than real lawyers do (or at least that's what lawyers keep telling me).
Even this is view of losses is questionable, since Microsoft has already lost hundreds of "potential revenues" from me, due to the fact that I run Debian instead of Windows.
I won't even bother to address the difference between stealing vs. copyright infringement, since this has already been discussed at length, and you obviously have no desire to educate yourself before you post.
Is it just me, or did you just feel a HUGE wight lifted off your shoulders?
Click to agree? Yes/No
(By clicking you are abidding by the following license: The clicking action does not guarantee the quality of the opinion of the user nor the author of the message. The user takes full liability for any negative outcomes of posting their optinions on a website. The user gives up their rights to own the speech of their opinion. By clicking the user hereby gives permission to all who read the opinion to have full access to their harddrives with and without any prior notice.)
This
Is that you?
668: Neighbour of the Beast
So apparently, possession really is 9/10's of the law
Sir, you're a thief.
Even if you apply OpenSourc/FreeSoftware philosophy here, what you did canno't be justified in any way. It's probably worse than being Bill Gates himself. =)
...so here is a link to Google's cache of the file (converted to HTML from its original PDF).
Agreed. I've still got a copy of MS Golf and Baseball that came with a PC, circa 1996. Never opened. Didn't even break the seal. I've been saving it for the next garage sale, and NO, I don't think it's morally wrong to sell stuff like that even when the EULA says you can't. That's because EULAs that prohibit separation of components run contrary to the way commerce has been conducted for thousands of years. This is part of that teen, tiny, little intersection of agreement between me and the AIP movement. I'm happy to see that a judge sees it the same way.
For all intensive purposes, "whom" is no longer a word. That begs the question, "who cares"?
For free software that you just download (i.e. excluding vendors such as Red Hat), no money changes hands, so it should be enough to have the warranty disclaimer attached clearly to the downloaded package. (Or better yet, for gratis software there should be a presumption of no warranty.)
I never understood how unilaterally imposed "contracts" that take away rights you have by default under copyright law, and which you can't even read until after the sale (much less negotiate) could be held up as valid.
If a thing is not diminished by being shared, it is not rightly owned if it is only owned & not shared. S. Augustine
But you could resell that CD legally, if you wanted to. With a EULA governing your actions, even if you uninstalled the software and erased all backups you STILL couldn't legally resell a software package. That's what's being fought over.
Software!! And it used to be that selling Not Labeled For Resale candy was naughty!
;)
;)
Well I guess I know what my friend's NEW business will be after he gets out of jail
(and he'll do just that when the stand-alone Get Out of Jail Free card I bought for him on eBay arrives...)
Cover your eyes and click this link!
Does this imply that software sold under the license model has an implied guarantee by the distributor that the product will not be "lost or damaged"? Since it is a license for a service, then the original distributor is responsible for any problems in the distribution - that's why they slap the EULA on the software, to protect against malfunctions, etc. But this implies that the distributor is responsible for guaranteeing the media - if it breaks, they would HAVE to replace it, so long as I could prove I bought it. They would have to replace it for the duration of the licence - in many cases, forever. You scratch a Windows 95 CD? They gotta replace it - at cost, because it's a licensed service and not a sold product.
IANAL - but wouldn't this create some additional problems for distributors, if people actually make use if this?
A witty [sig] proves nothing. --Voltaire
I define those who view EULA's just pieces of paper and justification for stealing software to be no worse than the corner store robber last night, who made off with 25 dollars. But, you dear friend are robber more than 150 dollars+ each time. Understand this.
So who said that being in favor of the maintenance of the First Sale doctrine means that one is in favor of stealing software?
If Softman did not install the software that came bundled with his system at all, why shouldn't he be able to sell it to someone else? That's what's at issue here. It's like you saying that a K-Mart shopper who buys a CD, then turns around and resells it unopened for half-off is breaking the law.
That can't be right, can it?
- jon
Ganymede, a GPL'ed metadirectory for UNIX
"Now zoom back to the Kmart cd, it said I cannot open it and return. What's the difference here folks? "
This is a straw man argument.
What MS's EULA's say is that if you want to sell the bundled software *you can't*. That is, the EULA says the software is an integral part of the hardware.
Lets push that aside and use an example. You want to buy a Dateway 2000 computer but it has MS Office bundled with it. Great. You already own a copy. So you don't need the copy of MS Office.
Dateway won't sell it without the MS Office.
What should you do?
1) Refuse to buy the computer - maybe. But the price is okay, and you really want a Dateway.
2) Buy the computer, and install the 2nd copy on your laptop - great idea except for one thing. The EULA says it belongs to a different computer. That seems silly right? You don't want to be a "law breaker" so you go with...
3) Buy the computer, and sell the new copy of office to your buddy for $50 - great, except this is the same as #2 above.
#2 and #3 don't make sense from anybody's viewpoint except MS's. They sold me a copy, and I can do with it whatever I want as long as I'm not violating the copyright. #2 & #3 don't violate a copyright, but they violate the EULA.
What the court appears to be saying is that when you buy software, you can treat it like a Music CD, or a book. MS may not like that use, but nonetheless it makes sense to treat software like a book.
You were mistaken. Which is odd, since memory shouldn't be a problem for you
Hey, that's what I said! :-)
And it's months-old news by now!
Grumble, grumble, are front page slots really going begging? It's unseemly to complain. But at a certain level, it's very sad that I can't get any Slashdot coverage for my anti-censorware work these days, because of What Happened To The Censorware Project (censorware.org) while months-old news is recycled over and over. Really guys, if you need a good story, I have plenty of deserving ones that are languishing for lack of journalistic backing!
BTW, If your in belgium, here is a good site to view the EULA's
duh.
Since you never opened the boxes, and you need at least *try* to install the software to read the dreaded EULA, how in hell can they bust ya for selling the damn closed packs?
beats me.
"Contrary to popular belief, UNIX is user friendly. It just happens to be selective on who it makes friendship with"
Being a Libertarian, I believe every corporation has a right to make whatever EULA's they like. As a consumer, it's your personal decision to agree or not agree with such EULA's. In the cases where you buy such products and later bitch about the EULA, I sadly would not support your case.
Back to the story, I believe this is a sort of defeat on law, since the party in question is effectivly stealing Adobe software and packaging it and selling at a lower price (just like warez cd's from asia?)
I sell software in the form of licences. If someone resells their licence, I have no obligation to support the seller anymore. I do have an obligation to support the buyer, since they have bought the licence (less any time or licence renewal restrictions).
What's tricky is that, people being human, it's too easy to resell your licence and "forget" to delete your copy. The "threat" of no longer being supported doesn't worry people enough, hence publishers get more draconian about resale rights.
It is only when you are a real employee that the work for hire issue applies.
I don't know the exact definitions for what constitutes an employee vs. what makes you a contractor, though. Anyone?
Why is Grand Theft Auto a much more serious crime than Reckless Driving?
Copyright law clearly recognizes the distinction between owning a copy of a work, and owning copyright to a work.
Owning a copy of a work not only gives you normal ownership of the physical copy of the work, but also fair use rights to the information expressed in that copy. These are transferred along with the physical copy, should you sell it or give it away.
Owning copyright to a work gives you the exclusive privilege to create copies of the work. This privilege may be granted to others through licenses.
If you sold me a print of one of your photos, I would be entirely within my rights to resell it, exactly as if you sold me a sack of potatoes.
Software works like that, too. If you sell a copy of a program, you don't give up copyright on it, and the purchaser gains the right to install it, to run it, to back it up, and to resell it. Copyright law has been changed to handle the specific needs of over-the-counter software.
it would be really great to own Windows XP for a few hundred bucks and then to tell MicroSoft to cease and desist selling MY SOFTWARE.
This is ridiculous. If Windows XP was sold without a EULA, you would obviously be buying a copy, not the copyright.
EULAs are no more necessary or beneficial to software than they would be for toasters or automobiles. This has been quite clear since at least the mid-80's, when the whole idiotic business should have been dropped.
Hello, footpad...
Why is Grand Theft Auto a much more serious crime than Reckless Driving?
He was obviously buying the packaged Adobe products. For example photoshop, illustrator, acrobat, and pagemaker. Together they are $999 seperate they are around $2300. This asshole is going to cost me a shitload because Adobe will simply sell seperate only.
Wrong. EULAs are crap and not worth the paper their printed on or the memory bits they're stored in. I OWN what I buy...to do with as I see fit. End of story. EULAs belong in the toilet and are to be largely ignored.
In Bushworld, they struggle to keep church and state separate in Iraq as they increasingly merge the two in America.
So... if EULAs are un-enforceable, then...
A) I can use one Windows CD(-Key) on multiple computers
B) I can incorporate GPL into my for-sale products
This could be bad or good. I see a bunch of "Yay! EULAs that I hate are gone for good!" This seems bad.
except if you bought a cd from kmart, opened it, discovered it didn't work in your cd player because it had some bizaare not really a cd stuff on it and took it back, you would be morally justified in returning it.
zoom back to the Kmart cd, it said I cannot open it and return. What's the difference here folks?
The difference is that I can sell that CD to the used CD store or through a classified ad or on Ebay. Maybe KMart won't buy it back, but that's OK - there are other channels.
Software EULAs don't allow that. I have loads of somewhat current, unused software that my company could sell... except that the EULAs attempt to prohibit it.
It isn't theft, as you claim. It's a product that I bought which I don't need. A I wish to recover some of the $$$ I paid for it. And in the process, someone can get a bargain.
It isn't funny that the manufacturers try to prevent this legitimate flow of goods.
It's morally unjustifiable to shrink-wrap CDs in the first place - total waste plastic!
Software was first just something that came with the hardware, or developed in-house, then as the industry developed, software companies came along which would license one program out to multiple customers, and it just grew from there. Software was being *nudge* *wink* licensed over the counter in shrink-wrapped boxes since before it was 100% clear that copyright even really applied to computer software.
When it was cleared up, and special provisions for software were written into copyright law (in 1980, in the USA), the pseudo-licensing was already a habit. Habits like turning disclaimers of quality into license terms ("You know all that stuff we claimed in the advertising? Well, if those were lies, you can't sue us!") are not casually abandoned in a litigious society.
Basically, the ability to impose any terms on your customers is better than the deal normal copyright sale gives you, so once the industry was in the habit, they had no reason to change.
Since newcomers usually just follow the herd, I sometimes wonder how many people in the software business even know that EULAs are not entirely necessary to sell software. The people most likely to know are the lawyers, and can you imagine a lawyer hired to write up a EULA telling his customer, "You know, you don't need me, you could just sell your product as they do in most industries." ?
Flamebait?
How is that flamebait when we are all having a civilized conversation? Maybe it opposes the views represented by the moderator who happend to get a good post down? But, that hardly makes it a flamebait, see the posts below, none are flameing.
no, he bought it. adobe was paid in full. (either directly or through one of their own resellers)
they just don't charge full price -- if you bought a car for $10 and could sell it for $10,000, you'd be a fool not to do so.
the defendant here is simply no fool.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
OK, here's my take on the whole "EULA" mess.
First: When you buy something (music CD, software, book, etc.) covered by copyright, you're actually buying it. This is very straightforward, and has been held up in court (book publishers attempting to sue used book stores.)
OK, so you've bought software, you go to install it - you open it and read the EULA - and are disgusted that you now have to give your firstborn child to Bill Gates, so you think "No, I don't agree to this."
So - you've not agreed - you click "I agree" (because it's the only way to install the software) and you continue to use it.
You're 100% legally entitled to do this.
First and foremost, the argument of the EULA as a contract is absurd. A contract is an agreement negotiated between two parties - since there was no negotiation, there is no contract.
Second, there's the argument of "you clicked 'ACCEPT', so therefore you agree to the EULA" - Wrong. I rejected the EULA - as in ALL of the EULA - so what's saying that I'm bound by clicking 'I accept'? That's right: the EULA that I rejected. Since I rejected the EULA, it has no bearing over what I can and can't do with the software. Clicking 'ACCEPT' doesn't mean that I accepted the EULA - it means that I rejected the EULA, and am not bound by it in any way.
Clicking 'I ACCEPT' doesn't mean anything. Besides the fact that the EULA is not a contract, clicking 'I ACCEPT' wouldn't bind you, because there is no way to prove that you're the one who clicked. That's why real contracts are signed - to prove that the person who accepted it is one of the parties to it.
Now, since the EULA has no hold over me, what's allowing me to use the software? Standard copyright law, that's what. I am bound by the limits of copyright law, which doesn't say anything about using the software (copyright only deals with distributing copies.)
Now, if the EULA was presented to me before I bought the software, and I signed it - then it would be a whole different story.. and I realize that with the advent of UCITA, this may change, but for the time being, EULA's aren't worth anything.
The end quote implies that the judge wrote that last sentence, which was, in fact, Don Marti's commentary.
The judge acknowledges the controversy surrounding shrinkwrap license, citing two conflicting cases. He dodges the issue by asserting that Softman, having never installed the software nor clicked "I Agree," didn't assent to the license. That, in itself, seems significant.
*linux* is not doing so well!
You need not be a Kreskin [HighTimes.org] to predict *BSD's future. The hand writing is on the wall: *BSD faces a very bright future. In fact there won't be any future at all for linux because *BSD is nearly SMP. Things are looking very good for *BSD. As many of us are already aware, *BSD continues to win market share.
if you don't agree to the terms of the EULA, you have the right to resell the software, but not to use it. You still have to agree to the EULA if you want to use the software.
In the United States of America, use of software is a right that comes along with ownership of a copy under 17 USC 117. If you own a copy, you can use it unless using it requires circumventing copy protection. However, in a sotware rental situation, the lessee is not the "owner of a copy" (the lessor still owns the copy, and by 17 USC 109(b), the lessor has to be authorized by the copyright owner), and some courts are more likely to apply the rental rules than others.
Will I retire or break 10K?
I remember opening a copy of the Borland C++ compiler on floppies. There was a little circular seal on the envelope and a notice which said that breaking the seal constituted agreement.... I cut the envelope open and left the seal intact (which basically amounted to a private joke between me and the envelope).
But seriously, Mr. Jones (who knows very little about computers) has Jimmy from down the street come over and set up his computer. Jimmy may agree to all sorts of licences while installing all of the software that came with Mr. Jones's system (Mr. Jones is in the kitchen making a souffle during all of this). Mr. Jones hasn't agreed to anything (except maybe to share the souffle), so he isn't bound by any licence.
Jimmy may even install some software he pirated. Mr. Jones may think that the software came with the system (or is part of the OS, as if he would know the difference).
Ignorance of the law is not supposed to be an excuse, but what if the average person cannot reasonably be expected to know if they are breaking the law?
Why is Grand Theft Auto a much more serious crime than Reckless Driving?
In a significant ruling in a California court, a judge has ruled the standard EULA licensing agreement to be invalid. This must be the biggest upset in software licensing ever.
Picture the rebels cheering as Darth Vader's super star destroyer crashes into the Death Star and is engulfed in flames in Return of the Jedi.
Is this a repeat, I thought I say about two months ago when it concerned Adobe?
user-agrees-to-read-linked-story-before-posting
User? How about Slashdot Editor?
I remember reading the MS software EULA some years ago, and was flabbergasted to find that they essentially forbade the end user from running their applications on non-Microsoft operating systems. In other words, if you bought a copy of, say, MS Office, you were forbidden to run it on a Windows/DOS emulator like Wine or any of the older Unix-based DOS emulators.
Note that IANAL, but this just seemed a blatantly invalid restriction on MSes part, if not outright illegal. I don't know if their more current EULAs still have this wording. If so, I would hope this new ruling might have some bearing on their draconian restrictions. I don't see how they can be allowed to get away with something like that.
Comment removed based on user account deletion
Yes, a corporation, or anyone else, can OWN the resulting creatures. What's wrong with the concept of ownership of creatures? I OWN 2 dogs. If they have puppies I will OWN them too. They will be my POSSESSIONS and I can treat them as i do any other possession (subject, of course to animal cruelty laws ;-)). Livestock is OWNED by farmers who kill them and sell them.
As for copyright and genetic engineering: there's no copyright in new genes and genetically engineered animals. You can get patents though. And yes, the patentee does own, (for the term of the patent) modified animals and their progeny that also comprise the modification. (Actually, 'own' isn't even the correct word - they get patent rights such as the right to make, sell, hire etc. - if you make one in contravention of their rights they might just sue for the lost income.)
And no, a patentee can't own a gentically modified _human_ even if they invented the modification. Firstly, a patent system doesn't override the basic human rights established in most countries' constitutions. Secondly, my country's patent system expressly excludes humans and i suspect most other systems would too.
Well of course EULAs are nessesarly if source code comes with it.
That depends entirely on why you are distributing source code. If it's because the software is source-portable, and you want your user to be able to compile it for his own system, then you don't need a EULA. You might want to remind your users that just having the source doesn't mean they are allowed to redistribute it, but you certainly don't need to enter into a contract with them to prevent them from doing so.
If you're distributing the source so someone can make compatible software, you probably want an NDA (Non-Disclosure Agreement; means they can't tell others what they find in there), among other things. That's certainly not an End-User License Agreement, though.
I think the distinguishing trait of a EULA is that it is mandatory for every end user of the product. Optional licenses, such as open source licenses, are not targetted at the end user as an end user, but the end user as a distributor or developer.
I'm really not seeing any situations where going from distributing just the binary to distributing the binary plus source would make you need a EULA. It might make you want to offer some sort of additional license, to encourage users to share bug fixes, though.
I'm going to have to go looking now... I swear I've seen both of these (the parent and reply) posts -- word for word -- before in another thread. I think we've been trolled.
The enemies of Democracy are
I think I have just been lucky to get into some very well run remote groups. (The main obstacle tends to be communication, which is true with any software team, except that over the phone, you miss body language, so you need to be a bit more explicit.)
Why is Grand Theft Auto a much more serious crime than Reckless Driving?
Comment removed based on user account deletion
Man, you're ripping off the Old Ones, and you've got a lot bigger problem than a silly EULA.
"Hardly used" will not fetch you a better price for your brain.
What has always been beyond is why alot of people especially slashodotters have a problem with buying software.
A good large number of them work in the software field and make money from software and hardware being sold.
As a CS major and one hoping to make a living off of the fact that people buy software withing the next 6 months, I can see how the manufacturers feel. How can you keep yourself from keeping a copy of a piece of software on your computer and then sell it to someone else. No one is goig to delete it because they sold it. I mean the only thing i do have a problem with is if u buy a piece of software for personal reasons and u have more than one computer, it's asinine that you must buy another liscense if you own the computer, I think this would actually discourage sale of a product to an extent.
I think the open source community promotes better software in the industry, but I disagree with trying to fight liscensing agreements, if u dont agree dont use it.
Seems that the only restriction concerning disposal of software on software lessees (aka licensees) is that they are not allowed to lend/rent/lease the software in order to dispose of it.
It does seem that they have the right to sell the software and transfer all rights and responsibilities to another person, without requiring permission from the copyright holder.
You must be downloading from one of those 'wheres' sites. Otherwise your software would have come in a box.
Or did you let the terrorists already win?
The EULA has died.
Now will someone create an eulogy?
This is the best post I've seen in about a month. And it only has a 4, get a life and moderate it up.
"And we have seen and do testify that the Father sent the Son to be the Savior of the World"
1 John 4:14
immunity from direct or consequential defective product liability. It isn't as if they allow their customers to
see the defects [sharp edges] or otherwise judge their product. Nor should they escape wilful negligence
and treble punative damages when they refuse to fix known bugs.
But I am a bit afraid of too much change too quickly. I'd like to offer the SPA an olive branch and a carrot:
Allow publishers to limit liability _iff_ they make source [& the means to compile it] available people who
own a legal copy. Plus disclaim "deriviate work" on the resulting patches so they could be shared openly.
Then at least users could fix things and to some extent be masters of their own fate. The software wouldn't
need to be GPL because the copyright owner could restrict copying, but the patches would be GPL.
This is what should be in UCITA iso the onesided theft currently written.
This is a funny comment, and it's insightful, we already paid for the software, (or downloaded it), and could care less what lama speak is in the eula.
"And we have seen and do testify that the Father sent the Son to be the Savior of the World"
1 John 4:14
Sounds good.
Others have said it better - but it bears repeating, because so many people seem to miss this point: The GPL has the opposite function to a typical EULA: it gives additional rights, rather than purporting to take rights away.
The GPL does not restrict your rights under copyright law. It gives you certain rights you do not have under copyright law -- namely, the right to distribute copies of the work, and to distribute modified copies ("derivative works"), subject to certain conditions.
Without a license such as the GPL, you do not have the right to redistribute copyrighted software at all. With or without modifications. That's the whole point of copyright law.
Your typical EULA, on the other hand, doesn't give you any rights you didn't already have. Instead, it claims to take away some of the rights you have -- namely, the right to use your software for whatever you wish (excluding redistribution - that's where copyright law steps in).
(Note of course I say an EULA "purports to" and "claims to" do such and such. I refuse to agree with those who say that my cutting open a box or clicking on an icon, in the privacy of my own home, bears any resemblance to so much as a handshake with an authorized vendor rep, much less a seal or signature. How would you notarize a click?)
"How can you claim that you are anti-crack, while still writing a window manager?" — Metacity README
Obviously you didn't READ your XP EULA, and you're just a troll. Microsoft EULA's are rediculous, just for curiosity I read the win95 eula, and it was UGLY. Stuff about danger to your health, death because of airplane wrecks etc.
Maybe if you bought the cd, turned it on and found out it was a peice of junk you'd return it. With rediculous labels on music it's not unlikely, such as "Classical" including 80's rap and 90's rock.
"And we have seen and do testify that the Father sent the Son to be the Savior of the World"
1 John 4:14
That way you could buy software the same way you do now with an EULA, or for an extra $10-$25, you can have a version that you can do whatever you want with (except copy, of course).
Except they wouldn't charge $10-$25 more for the EULA-less version but rather a million dollars per seat because there's no EULA to restrict reverse engineering.
Will I retire or break 10K?
They're not taking sales away from adobe, they're just marketing it for them. Adobe wouldn't sell a bundle for a loss, they sell bundles because they can make money that way.
If I sell you a 50 potatos for $20, and you sell them for $1 each, even though I sell them for $1.50 individually, I should be happy for the sales anyway.
I just wish more people would consider how much money is lost in all the licensing confusion of software. Maybe people would be more open to open source.
"And we have seen and do testify that the Father sent the Son to be the Savior of the World"
1 John 4:14
Microsoft is *not* going to drop millions of dollars to defend *Adobe* against an unpleasant verdict.
Being a Libertarian, I believe every corporation has a right to make whatever EULA's they like. As a consumer, it's your personal decision to agree or not agree with such EULA's.
But what if every provider of a given necessary good or service had a provision that required you to turn over your firstborn? (Ignore for a moment the 13th Amendment.) Assume that in this hypothetical system there is no way to do without this product, and all providers of this product insist on placing such terms on the sale of the product. How would you react?
Will I retire or break 10K?
No end user in NSW (AFAIK) has been prosecuted for reselling old software they didn't need, because when you resell it you just sell the license with it (ie keep the original retail shrinkwrap box or OEM CD box with it)
"If you want Photoshop and Pagemaker, you will have to buy them individually, because there is no reason for Adobe to sell the bundle that Softman then buys, breaks up, and resells the individual pieces and takes sales away from Adobe."
No, he didn't take a sale away from Adobe. In order for him to do this without making his own copies, Adobe had to sell a copy to him in the first place. Basically, he was making himself an unofficial reseller. Do you honestly thing Software Etc doesn't make a profit off of the Adobe software? Adobe sells to them at a reduced rate (still a profit, though), and then Software Etc resells the item. Adobe still makes a profit (probably even more than if they had gone through regular resale channels), and softman makes a profit. Who's hurt by this?
It would be like accusing the local junk yard or hardware store of stealing from spare parts manufacturers because they're selling whole items in bits and pieces for more than they paid for them. People other than corporations have a right to earn a living, you know.
If you possess, do you not also own?
If you rent, you possess, but you do not own.
"Your comment has too few characters per line (currently 7.6)."Will I retire or break 10K?
....the software vender demands that you sign license agreement at the point of sale, agreeing not to sell on, its just as sale, which means you can sell it on yourself when you know longer need it.
The rational behind this is that, if you have a contract with out any form of representation of the other end, ie hasn't been signed by your lawyer then it can not be representative of your interests. It is what is called a sublimable contract, I think that this was decided when some dude argued about a fine stating that who would bother to read the back of their bus ticket in the 19th century, a more recent example would be a group of people suing the manufactour of a car wash system, who tryed to argue that they weren't liable because of a "while all care is taken we are no responsiable for damaged incured" as being a contract. More or less open abuse like that
The have always thought that it is illegal to make a contract as a condition of use, since you have no representation, That a real contract is something which you read, send to your lawyer who circles the dodgy bits and sends back to you (like a rental agreement). Not a "you must click here to use this" type crap. Perhaps someone who is IAAAL could clear this up.
Pianist : Some jerk whos taught themselves how to type in rhythm
>>The home-owners took 10 times as much care of their houses, even though they were very poor ... If it's mine, I'm not going to mess it up!
Yeah, I've seen that. But it also makes you wonder about the landlords. They own it, and they don't take care of it. What's up with that?
Maybe this analogy even extends to software somehow. I'm not the one using it, that clown who "licensed" it is. Why should I care if it's buggy and freezes his system or corrupts his data? I just made it and sold it to him. I don't actually have to live with it.
Somewhere in here there's an idea about giving a rat's ass even if your own ass isn't on the line. Maybe that's a two-way street. Maybe we could all earn, buy, or license some good Karma here if we cared to...
1. Nearly all name-brand laptop computers come with Windows preinstalled. It's not optional. If you don't want Windows, you have to pick a different computer that doesn't have the hardware you want. If you were buying some generic clone desktop computer, sure, getting it with preinstalled software would be stupid. But that's not always type of computer you're buying. 2. Getting refunds out of MS isn't unheard of, but it's very difficult. There are many entertaining stories about the hoops people have jumped through to get refunds, sometimes successfully, sometimes not. Either way, not everyone wants to jump through hoops.
Interesting...
Thanks for the morsels of wisdom
Cheers!
GSloop
As I posted when Slashdot ran this story on 28-Nov-2001 (which was four weeks late, as the opinion was available 1-Nov-2001 it happened)...
From my submissions page:
Here are your recent submissions to Slashdot, and their status within the system:
* 2001-11-01 22:36:46 Federal Court rules Software Sold, not merely Licenced (yro,news) (rejected)
WTF. News should be, well, new. My rejected submission was made the day after the opinion was published. I'm glad this very important decision is getting the attention it deserves, but I have to wonder how Slashdot could justify rejecting it when it was timely, then running it twice when it wasn't.
If the license isn't presented to you at the time of purchase, then the license shouldn't be valid. A california judge validated this in the adobe case.
;)
If a license isn't presented BEFORE purchase, then the sales doctrine applies, and you bought and own what you paid for. No matter what the license aggreement in the box says. You can't turn around and make a sales into a lease aggreement. That's what the judge says...
Anyways...
With a book, when you buy it, you are free to read it wherever, whenever you want. You can rip the pages out of it, and make origami cranes. You can let a friend borrow your book. You can sell your book.
If I buy a DVD, the MPAA would sue me if I tried to watch it wherever, whenever, on whatever I wanted.
With software, the software company would try to sue me if I let a friend borrow it. They would also try to sue me, if I tried to disassemble the software and see how it works. Also, the license aggreement was presented AFTER you bought it. Sure it says if you don't agree to it, to return it, but who actually accepts returns on opened software? And also, when I installed JBuilder, it said it couldn't find the license file, so and empty dialog box appeared, and asked if I agreed to the terms
In a different scenario, whats to stop somebody from copying it to there computer, and cracking the program to say there is no license agreement. Since you never "agreed" to any of the terms, you are not "violating" licensing terms by cracking it, and changing the wording... etc etc...
Lets use other examples. How do you own the CD-ROM but not its contents? If somebody mails you something, its yours and you own it, whether or not they mailed it by mistake... If you buy a car, and find a million dollars in the trunk, its yours, and you are not obligated to return it. If you buy a house, and find a buried treasure chest in your yard, its yours, and you are not obligated to return it to the previous owners....
1. Be made clear to the customer before purchase
2. Require some sort of signing to be legal - what is to say that my 6 year old kid pressed the OK button on Windows' first boot?
I'm fairly sure if the Microsoft EULA was spelled out to customers before they purchased the software, a fair number of them would look at less restrictive alternatives - or at least an agreement which makes some sort of commitment to software quality.
smash.
I run: Windows, OS X, Linux, FreeBSD. Just because you have a hammer, doesn't mean everything is a nail.
Just because it's EULA doesn't make it MS. This is some guy who was making money off of Adobe's bundle pricing.
Granted, I'm waiting for someone to yell, "It's Adobe! We're supposed to hate them too!" But this isn't MS' fight.
The scope of license terms varies in different countries. For example I live in Finland and almost all licenses are not entirely valid here. For example "By opening/installing etc this software to your computer you agree" doesn't apply, here you can ALWAYS install software and see that it suits your needs. You cannot be forced to comply to license without seeing the actual program. Another example is reverse engineering, by our laws you are authorized to reverse engineer software and find out how it works in order to make it work with your own software. License can never limit your rights as consumer, never. Here law isn't backing up companies but individuals and consumers. When dealing business-to-business it is another story.
Of course the situation isn't as "black and white" what you can interpret from this message. We do not have court rulings for strange licenses. Also this doesn't mean that "Hey, come here lets hack all commercial software because it's legal" or similar. Peoples who make such comments should be doing some self studying, such comments represent lack of conversational skills as well as childish view of things. You must also bear in mind that our courts are not based on jury or past cases but the interpretion of law in the particular case. Law is interpreted little differently here than in US. License agreements can be treated differently in different countries and that is one thing that software companies should consider when creating EULAs. EULA that is applicable in US may not be so in another countries.
What's still more complicated, is, that, from what I know, Windows XP comes preinstalled on prebuilt PCs WITHOUT a CD.. is it then no sale? (Since you didn't get a CD "to walk away with").
In several European countries, EULAs are not valid unless they are presented to the customer before purchase. EULAs inside the wrapping and EULAs on screen are not valid.
p _E 1=1&p_E3=50&p_E4=30&p_id=21352
Microsoft seems to know that, since the Hotmail EULA is violating the German law, as specified in the test by http://www.StiftungWarentest.de/ in the august 2001 issue:
http://www.warentest.de/pls/sw/SW.Main?p_KNR=0&
And in Denmark, where I come from, even if you were presented with an EULA before purchase, it would always be interpreted against the author (the software company), and unreasonable clauses would be overruled in court no matter what you write.
They buy bundles of software (say 500 copies of FooBar ver 3.0 and 500 of BarFoo 1.0) at $20 a copy and sell them individually at $30 a copy. There is a (relatively large) market for this. Of course they don't open the packages.
How is this case different? Both companies have a business license, both can buy and sell products at prices they choose.
Alternatively, how do the software distribution houses (and Ye Olde Software Shoppe) get around the fact that they buy software packages and resell them, without going thru the EULA bull. If they can do it, so can anyone (assuming that one pays the sales tax on the sale...)
No sig for me - too lazy to fill one in...
There will be two kinds of software. The buy a copy and the subscribe to a copy. One can be installed and used. The other will only have a DL subscription form to download and activate the it. It will come free in the mail. It will come free pre-loaded on computers with a 30 day free trial... Sound familiar? 30 day 1000 hours free ring a bell? Knock your self out and sell the disks on E-Bay. MS and maybe Adobe know how to sidestep this one.
The truth shall set you free!
Make offer.
Tequila: It's not just for breakfast anymore!
So i get to pay $50 for a piece of software, take it home, and then find out i don't like the EULA. But you've already gotten your money, and since i don't agree, I've gotten nothing. Ok, I'll return it. WAIT, we CAN'T. Not one store I can think of will accept a return on opened software. My local Software Etc. used to, but they killed that policy long ago.
"Upon attaching the waterblock to my penis, I began to notice that I know nothing about computers." -- JRockway
Same deal if I sell you a print of one of my photos. You don't own the right to scan it and sell it to others or to publishers. Sorry 'bout that.
I got burnt by a for hire photographer on just that subject. Believing the consumer is always right, I have since written all my own contracts for photographers labor... The key is labor. Most photographers refuse as they see it as an attack on their cash cow of reprints. To get a photographer, I send a copy of the labor agreement asking for bids for the labor. All proofs and negatives are my property, not the other way around. It's worth the effort to hire a photographer for his labor and be able to get the extra prints that are always needed at a wedding. You can hire him for the reprints if you like his work and prices. You can also have the negatives scanned and put on the web which traditional photographers copyright prohibits. Make sure you own the copyright of your important events.
Walt Disney learned that the hard way. His first mouse was owned by the studio he used to work for. His name was Mortimer Mouse. Walt Disney did not have permission to use his creation. He created another mouse very much diffrent from Mortimer. He refused to give up ownership of Mickey to any studio. He saw loss of ownership of his creation never happened to him again.
The truth shall set you free!
To me, the term license is a misuse of the word in "GNU Public License". This statement is not a license, but is a conditional waiver of copyright. The owner is given the right to copy and distribute the software as long as both forms of the software are copied and distributed.
Some geek should create a program that searches a window for text such as "license", "agreement", "EULA", and "no warranty", then scan for an 'I accept' button and auto-click it. Also scan for an 'I accept' check box and 'OK' button.
Then, distribute the software patch as a virus, so users (theoretically) do not knowingly install the code on their system. This way, users have plausible deniablility in ever seeing the EULA (it disappears off the screen in less than blink of an eye) and also deniability in trying to install a circumvention utility. (Hey, the program installed itself, I didn't know I was 'infected'!)
However, they (adobe) are assholes anyway. Notice their BSA alliance. Oh well fuck everyone.
Without an EULA, the user would be able to do as he pleases with the software, including making copies to his co-workers to his heart's content.
The EULA MAY futher protect copyright infringment (PROTECT BY COPYRIGHT LAW, NOT EULA's) by restricting certain types of uses, but that's all it does.
If you want to license software to me and restrict my use, have me sign a contract BEFORE I purchase your software CD. That's what every other industry has to resort to.
"Communism is like having one [local] phone company " - Lenny Bruce
EULA thought experiment:
Say I offered to sell you a dollar bill for 50 cents. The dollar bill is inside a sealed envelope, upon which is printed "The breaking of the seal on this envelope, or any other significant topological transformation of this envelope which allows one to remove its contents, binds the breaker of said seal to the license printed on the inside of this envelope. A copy of this license is obtainable by sending $1.00 for shipping and handling to"... blah blah blah. Are you bound by the "contract" printed inside the envelope if you open? I could be asking for the title to your car, or the deed to your house...
"If you're thinking what I'm thinking, you're right." -
So i get to pay $50 for a piece of software, take it home, and then find out i don't like the EULA. But you've already gotten your money, and since i don't agree, I've gotten nothing. Ok, I'll return it. WAIT, we CAN'T. Not one store I can think of will accept a return on opened software. My local Software Etc. used to, but they killed that policy long ago.
all my local software stores still take returns on open software, as is written in large print usually behind the regesters as well as the receipt, but they only accept the returns for replacement by the same product.
--- As to make my comment seem, by comparison, more intelegent... doodie doodie doodie poop poop poop!
You rock! :)
I also found it available on the cryptome site:
http://cryptome.org/softman-v-adobe.htm
- First they ignore you, then they laugh at you, then ???, then profit.
Plenty of software distributed under the GPL is still sold, even though it can be freely obtained without paying for it.
The fact that licensing agreements are essentially a way for manufacturers and vendors to create new ownership laws at will is most people's bug with them. The fact that I can't sell my PC without formatting the hard disk, for instance.
- Chris
Assuming that the condition placed on the sale by the software company IS legal, what would stop the buyer from modifieing the terms prior to the sale? By crossing out the terms on the box, having the kid at the sales counter initial the changes on the box, and adding your terms to the back of the recept which the kid at the counter also signs, you would now be free of the EULA. I almost want to find a lawyer and test this one out.
Well, that does you alot of good - you still can't get your money back if you don't like the product. That is what i was talking about.
"Upon attaching the waterblock to my penis, I began to notice that I know nothing about computers." -- JRockway