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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
"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.
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).
Tell that to Microsoft, who was getting Ebay to shut down auctions of unopened, bundled software.
And lets not forget when those Linux Geeks went out to Redmond a few years ago and demanded their money back for the copies of Win95 that came with their PC that they never used. Did they get their money back? No.
Believe it or not, this IS an important decision.
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.
The GPL does not govern use, only distribution of copies. If the GPL is completely invalid, then you have no legal right to distribute copies of GPL'd programs. EULAs, on the other hand, specify restrictions in addition to copyright, which this court has ruled to be non-binding.
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.[quote]
Courts have required that assent to the formation of a contract be manifested in some way, by words or other conduct, if the contract is to be effective. [...] In the instant case, the Court finds that there is only assent on the part of the consumer, if at all, when the consumer loads the Adobe program and begins the installation process. It is undisputed that SoftMan has never attempted to load the software that it sells. Consequently, the Court finds that SoftMan is not subject to the Adobe EULA.
[/quote]The court made no decision on the validity of EULAs (in fact it explicitly skirted the issue by saying if at all). This is only affirming the fact that if you don't agree to the EULA by performing some action then you are not bound by it.
main(c,r){for(r=32;r;) printf(++c>31?c=!r--,"\n":c<r?" ":~c&r?" `":" #");}
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
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
"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
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!
Now, the real question is: can a COPYING file in a tar file count as a license, when the user doesn't need to sign a contract or indicate their affirmative agreement to the license terms in any way?
You'd better hope so. If it doesn't, then you have no right to distribute the tar file.
Reboot macht Frei.
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?
You buy the software - money is gone. You take the software home, you open the plastic wrapping and the box. You read the EULA, which comes up as you install the software from the media.
You decide you don't like the terms of the EULA and refuse to accept and take the software back, and you are told "Sorry man...we can't give refunds on open software, music, or videos unless they are defective. Then we can only replace for the same item."
That just doesn't sound right. At least the EULA's should be printed on the box where you can see them before buying.
First off, the GPL doesn't impose any "additional responsibilities" upon you (the licensee of a work) -- it just grants you specific rights, and doesn't grant you others. It grants you the right to release source-and-binary, GPLed derivative works. It doesn't grant you the right to release binary-only derivative works. Releasing source when you release binaries isn't an "additional responsibility"; it's just a term of the right you're granted.
Second, the GPL never requires that you post source publicly. If you give me binaries, you're required to give me source. So it makes sense that if you post binaries publicly, you should post source publicly to ensure your obligations are discharged. But if you're a consultant working for Frobozz Magic Corp. and you customize gcc for them, you don't need to post your diffs publicly at all; you just need to give them to Frobozz.
This second point is important. Some non-GPL licenses require that you give your changes back to some particular party -- usually the original author or current maintainer of the code base. The GPL doesn't enforce that kind of centralization, even with "the public" as the particular party. The GPL ensures that the users of a binary have freedom to get at the sources; the "public review" thing the open-source folks are on about is a nice side effect.
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....
Nope. Remember that Red Hat is distributing other people's code, not their own. In the absence of the GPL, Red Hat has no right at all to distribute (for example) Linus's code -- with or without source. If there were no GPL (or comparable license), then in printing and selling its CD-ROMs Red Hat would be violating Linus's copyright. With the GPL in place, Linus has granted unto Red Hat a limited right to distribute Linus's code: a right to distribute it with source but not without. If Linus placed his code in the public domain, or sold the copyright to Red Hat for that matter, Red Hat would have an unlimited right to distribute it -- but he hasn't done that.
You don't have to "agree to the GPL" to be bound by its provisions when you copy GPLed software, because all the "restrictions" of the GPL are actually just the plain old ordinary restrictions of copyright law, by which you were already bound. The GPL isn't a "license agreement" -- a contract -- but rather a "license" -- a unilateral grant of limited rights. It says "You may do these particular things with my code (distributing with source) which otherwise would be illegal -- not anything you want, but some particular things. Other things (distributing without source) remain illegal as they were already."