Slashdot Mirror
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.
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
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
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
... (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).
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.
No. You own the copyright of the work itself. If I go to your gallery and purchase a copy of that print, I certainly can resell that print later to someone else. Otherwise there wouldn't be much of a market for artwork. I can even make copies of your photo in limited circumstances under "fair use."
The software industry is trying to license the _use_ of software itself. You don't own it, but can use it under the terms of the EULA. Soon, IMHO most software will be pay-per-use.
As others have already stated, this concept is not new: mainframe software has been like this since the beginning. On the other hand, in a corporate setting the lease usually includes updates and support. Something that MS and others of course charge extra for.
You say...
I think software manufacturers should be able to disclaim warranty, just like you can in any other industry: by prominently labeling the product to be "AS IS, no warranty" before money changes hands.
Well, in most "goods" sales, you can't disclaim warranty. It must be fit for the purpose designed. Actually, you CAN disclaim them, but a court will laugh at you is you try to use the disclaimer as a defense when you get sued.
The point I've made is that this should then be an individually contracted process.
One shouldn't be able to escape the difficulties of contracting by just including a EULA. If you want a contract, then you must negotiate with me - personally!
If you just want to sell me software, you should have to sell me a copy. I get all the normal rights available to other intangible goods, but you can't impose additional restrictions.
The GPL might have some difficulties under this system though... [sigh]
True, but only of that individual copy of the software.
Copyright is not transfered along with copies of a work covered by that copyright. This is absolute.
Books are copyrighted, books are sold, yet the buyer of a book has no special rights against the author. There's no difference really, between books and software in this respect.
What are you worried about -- people selling used copies of software (where it is illegal for them to keep their own copies!) just as people sell used books or used CDs? Doesn't seem like there's a compelling reason for EULAs at all, huh?
-- 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.
Comment removed based on user account deletion
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?
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.
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").
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!