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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?
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.
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).
Is it just me, or did you just feel a HUGE wight lifted off your shoulders?
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This
...so here is a link to Google's cache of the file (converted to HTML from its original PDF).
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)
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?
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.