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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
Google cache here:
: www.cacd.uscourts.gov/CACD/RecentPubOp.nsf/bb61c53 0eab0911c882567cf005ac6f9/574aa79ff518021188256aed 006ea2dc/%24FILE/CV00-04161DDP.pdf+&hl=en
http://www.google.com/search?q=cache:fqBMOVCI89oC
--pi
"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.
Is it that thing I press "Next" on before entering the serial I got from astalavista?
What were they saying in it anyway?
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.
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
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.
Why did you buy PCs with Windows on them, if you didn't want 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.
... (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).
[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?" `":" #");}
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
...so here is a link to Google's cache of the file (converted to HTML from its original PDF).
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
"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!
Copyright law makes certain restrictions on redistribution by default. The GPL lifts some of those restrictions, allowing redistribution/modification under certain conditions.
If you bothered to read the GPL, you would notice that it even says:
If a thing is not diminished by being shared, it is not rightly owned if it is only owned & not shared. S. Augustine
this is very similar to best buy's software policy: if you don't open it, you can return it.
I always liked when the EULAs said "If you do not agree to the terms of this agreement please return this software..." By opening it to read the license agreement you give up your ability to return it, and by not opening it you can't read the license agreement. Catch 22. My solution? Exchange the opened software for an unopened copy and immediately return that one. (I've heard they're not suppose to let you do this, but no one has ever tried to stop 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.
- You can't resell it. It's licensed.
- Your CD melted? Sucks to be you. Guess you'll have to buy another one.
In an ideal world, the claim that software is only licensed would require lifetime replacement of media for the cost of shipping, and would at least make copy protection a bit less of a shafting for the public.
CEE5210S The signal SIGHUP was received.
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.
"This is something different than Joe User selling his copy of Windows 98 that he got with his computer that he doesn't use."
One of the differences is that Joe User doesn't have the resources to fight EULAs. It required someone who was making serious money off of "legal" EULA violations to pull this case off.
"They are selling the bundle cheaper, because it is a bundle."
How is it being a bundle justification for the higher prices for the individual apps?
When you buy a boxed set of books, often it is less expensive than the individual titles simply because the boxed set uses paperback binding, inherently cheaper than hard-covered books. But I see no glaring cost-saving in use with bundled software. They still have the same number of CDs, often the same instruction manuals included with it, and the only differences I can see are the packaging and maybe the jewel case. Sure, there are instances where bundled software is actually integrated together in the code, but from the sounds of it all we have here is Adobe taking the contents of five cheap boxes and putting them into one slightly larger cheap box.
"What will end up happening if this takes off is that bundled software will no longer be cheaper than the individual packages."
There's no reason for the bundles to be less expensive than the individual apps more than a few cents for the savings in cardboard. If the bundles save their money by not including paper manuals, then it's time for Adobe to condsider selling individual copies of software without paper manuals. Any other reason for the drastically lower pricing in bundles is a direct result of artificial mark-ups in the individual apps. Even claiming the drastic price difference is a result of stamping all the apps on fewer CDs is a joke, since we all know the price of blanks CDs.
"This will do nothing but hurt the end users is companies are allowed to do it though."
How? The only people I see getting "hurt" are the companies that are losing out on their artificial mark-up. The only money they'd be losing is money they shouldn't have made to begin with. And even then they're still turning a profit because they ARE selling the bundles. On the other hand, the re-seller could still get hurt if part of the bundle isn't as popular as the rest.
I can't see the situation you're fearing as anything but capitalism at it's best. The publishers (Adobe in this instance) are now forced to compete with their own pricing schemes on a level playing field, putting market forces and the consumer in charge of the value of their software instead of the publisher.
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.
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?
Comment removed based on user account deletion
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
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)
....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.
So... if EULAs are un-enforceable, then...
A) I can use one Windows CD(-Key) on multiple computers
No, the judgement doesn't reach that far. You're allowed to sell a copy of Windows that you don't want, but you're not allowed to install the same copy (with same CD-key) on multiple machines. (Unless you have a license from Microsoft that says you can.)
B) I can incorporate GPL into my for-sale products
Again, no; this decision doesn't reach that far. The author(s) of the code still hold copyright on it. The GPL is a license that actually gives you certain abilities (reproduction, modification, etc) in exchange for you obeying certain rules (e.g. placing derivative works under the GPL). If you choose to reject the GPL, you can do that, but then the work in question is still covered by the author's copyright, and you don't have the right to re-use the code (because you refused to accept the license).
TheFrood
If you say "I'll probably get modded down for this..." then I will mod you down.
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.
Yes, and IIRC, some blockheaded judge bought the argument that copying the software from disk to RAM constituded making an illegal copy according to copyright law. You're not allowed to do that. The license grants you the right to do that. So congratulations. If the EULA is invalidated you simply have no legal way to use the software.
Ridiculous, of course, but it makes a bizarre sort of sense if you accept the premise that copying the software to RAM is "copying". It is, but only as much as your reading these words is making a copy on your retina. Time for an entrance exam for judges, IMO.
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."
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!