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Fighting Back Against EULAs
An anonymous reader writes: "Fed up with increasingly obnoxious click-through "agreements" embedded in the retail software I buy, I've posted a very simple script to remove them before clicking "I agree". Without the EULA, I am free to use my software within the bounds of copyright law. Courts have been very inconsistent on the enforceability of EULAs, and I hope this will strengthen consumers' side of the battle. The script is a symbolic gesture as much as anything else, and I want to get people thinking about how ridiculous it is that software companies try to force these one-sided contracts on you after you have paid for something. Also worth a look is cexx.org's Software Vendor License Agreement, which reverses the typical EULA and puts the burden back on the software manufacturer where it belongs."
Great idea. Maybe I can take down the speed limit signs in my neighbourhood so I can go as fast as I like. Doh.
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Read the EULA before you click "accept". If you don't agree with the terms and conditions then don't install the software. You have no right to dictate what software companies can and can not do with their property. Software that companies write belongs to them so they should be free to do whatever they choose with it, even if they require handing over your first born or something. Consumers already have the power to fight overly restrictive IPOs without new laws, it's called letting your money talk.
This tactic seems to me to be about as likely to stand up in court as if you poured white-out all over your lease/mortgage/deed restriction before signing it and returning it, then decide to paint your apartment/house lavender, with little yellow polka-dots.
WWJD? JWRTFA!
The problem with most packaged software is you don't see the EULA until after you've opened the box, and many stores will refuse to refund money on opened software. Effectively, this means if you don't accept the EULA theres nothing you can do, aside from finding someone else to buy it off you, most likely at a loss.
As for this software, I can't see it holding up in any court. You can't say "I shut my eyes everytime I drove past a speed limit sign" and expect a judge to let you off the hook for going 120.
This also removes any incentive for companies to change their EULAs. After all, they're still getting $50 or whatever from you, whether you avoid the EULA or not. Vote with your wallet people...
"People that quote themselves in their signatures bother me" - athakur999
it seems like this is at least 'unethical,'
I wouldn't say it's any more 'unethical' than the thing it's protesting...
:wq
One ring to rule them all. The (_O_) in Goatse.cx
Good god... someone start a clock that runs until lawsuits force google to shut this down and the feds arrest everyone who posts a mirror. Save this one to a text file!
lots of people are writing and talking about
following laws, this law, that law etc. The
discussion really is a specific instance of
more fundamental questions:
When a law doesn't make sense, should people
follow it? At what point do you realize
that the motivations of the people creating
laws are not aligned with their interests?
The DMCA forbids the creation and distribution of access control circumvention devices. The EULA agreement, during installation, could be interpreted to be a form of access control. The software will not, ordinarily, install on your system unless you click the "I Accept" button. Therefore it is controlling your access to the software and anybody who bypasses the EULA may not be authorized to use the software.
Welcome to the wonders of poorly written legal language...
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When you buy a book, does it come with a seal holding the pages together so you can't read it unless you agree not to set up your printing press to mass produce and sell copies of it?
No, but somewhere inside is a copyright notice.
That's the problem. The things EULAs *should* protect are already protected by already-existing copyright law. The fact that these *companies* try to limit you in no way makes you a criminal if you say to hell with them.
That is, unless they keep buying legislation to get their way.
I opened the WindowsME CD with my new laptop with a hammer. The seal was left intact. The media was destroyed. So what's the problem?
Unfortunately, I have committed a felony under the juristiction of The United States of Microsoft by running a free operating system on my new laptop.
Take it or leave it contracts often don't stand.
IANAL either, but I did take some contract law in business school. As I recall, the precedents (upon which a lot of contract law works in US, Canada, UK, etc.) are that what you call take-it-or-leave-contracts DO stand, if the notice is well posted. E.g., the liability waiver on amusement park tickets, parking lot signs, airplane tickets (the latter usually for loss of luggage, not loss of life). If you don't agree to the terms, your only choice is not to do business with them: altering the contract, such as blue-lining the parking lot sign, won't get you anywhere.
He's already paid for that piece of plastic and the fancy spiral dot patterns on it. He has legal access to everything on it. The access control was legally satisfied when he walked out the front door of the store. He doesn't have to perform any sort of dance afterward. He doesn't even have to peel off the cover! He can sit on it, throw it in the air, put it in the microwave, put it in his PC, take it out, put it in the CDROM drive, spin it around, shine lights on it, observe the fancy reflections, even record the fancy reflections and then modify the recording of the reflections. He can even take it to the range and use it for a target if he wants.
What he cannot do is sell or distribute copies of it.
What he is doing with readily available tools is no different than scribbling notes with pen or pencil in the margins of a book that you have purchased. Yes, he is modifying it, but that is not against the law, even the DMCA.
Indeed, what he is doing is more akin to turning on a light so that it is easier to read the book you just bought.
Good judgement comes from experience, and experience comes from bad judgement.
- W. Wriston, former Citibank CEO
But isn't the script modifying the software therefore breaking the rules anyway? As to stickers on CDs - what if the person's blind and can't see the EULA or the sticker?
Video Game cheats, hints a
Remember those little stickers on the CD-ROM pouches? You have already agreed to read the agreement
Not really. In my opinion, those stickers are meaningless. When you pay your money for the software in the store, you own it. You own a copy of the software inside (well, supposedly, that's what this slashdot article is supposed to debate), and you certainly own the physical contents of the box. You own the manuals, you own the jewel case, and you own the sticker. You can do whatever you want with it. You can rip it to shreds if you want, its your sticker. It doesn't matter what's printed on it - it is your private property.
Anything that is printed on it ought to be about as enforceable as me selling you a car and putting a sticker over the ignition key hole that says "by tearing this sticker, you agree to pay seller 5000 dollars". Its your car and your sticker. You paid for it with no strings attached. I can't attach strings after I've sold you the car.
The argument you're making is in fact the entire point: just because Microsoft printed words in their EULA, that doesn't mean they are a binding legal contract.
I consider EULA's to be simply a promise by the software vendor: we promise not to sue you if you do this and this, etc. That does not automatically mean they are morally or legally right, or that they would win such a lawsuit.
That's all that makes EULA's "binding": the threat of being sued. The software companies know that their power is tenuous here, and hope for legislation like UCITA that really makes it binding. ANY company would love to be able to dictate exactly what you could do with their product, so they could bill you for the different "privileges" of doing different things with the product.
Imagine if Ford said that by displaying the Ford trademarked logo in public, including on your car, you agree to a "Ford logo license", which says you can only drive 35mph or slower. For $1 per mph over 35, you can earn the privilege of driving over 35mph. Whenever Ford needed more income, they could just adjust the fees and cutoffs (be sure to check ford.com weekly for license updates) until they maximized profit. Whenever that didn't work, they could just send in the "Ford license enforcers" with speed guns, because somebody somewhere is probably violating the license. And if you don't keep accurate records of your speed, they offer you a settlement in compromise, just like the friendly folks at the BSA!
EULAs give software vendors too much power. The best thing to do is use Free/Open Source software, next best thing is to ignore the EULAs.
Without the EULA, I am free to use my software within the bounds of copyright law.
Which may, in fact, be not at all. Absent the EULA, you have no license. Absent a license, the bounds of the copyright act preclude any reproduction, derivation or distribution of the copy you have. Since USE of software has been treated by the courts as a reproduction (since it entails loading a copy from a fixed disk to RAM), your unlicensed execution of the program may well be violating their copyright. The virtue of the EULA is it gives you a use license. Since you bypassed the EULA, it is unlikely you would prevail on any implied license theory.
In short, if you are serious about this as a legal strategy, please first consult with competent counsel you have engaged who has carefully studied the particular facts of your case. If you are reading this proposal, please consider the source and the possibility that the legal advice in the original posting (and this response -- which is not legal advice by the way) may be worth what you paid for it.
Two things brought up are immoral. The first is unreasonable contracts that realistically are rarely read. Unreasonable contracts can be thrown out in court. Also, using unreasonable contracts to harrass people is also slimy. These techniques are underhandy, slimy, mean and hard to defend.
The other thing is say things like, "X is immoral" or evil or the bane of the free world without supporting it. That's just slinging trash around. The only arguement I can see that all EULAs are immoral is that software should be Free etc etc. That one is still up for debate.
Basically though, a good EULA is like any other good contract. It clarifies the intent behind the sale and lays down what each party should expect from the other. It lets the user know that if the software blows up the computer, the company selling it won't help. Not helping might be bad, but at least there is acknowledgement of what behavior is expected. At the same time, the end user agrees not to try to burn 50 copies and sell them on the open market.
Bad EULAs can be used to underhandedly impose the will of a company on the user. A good one clarifies what is expected of the parties. Good ones are not morally wrong. It's sloppy to say that EULAs are morally wrong in general.
The reasons EULAs and such things are done, from what I know (IANAL), is for a reason called "Best Effort".
Best Effort means that if and when your company ever gets hauled into court for some stupid lawsuit, you need to be able to show that you made a "best effort" against whatever event that caused the lawsuit. If you can show that, the liklihood that you won't be held liable is higher.
EXAMPLE: I own a house. I have a sidewalk. During the winter it gets ice on it. I go out twice a day and salt the sidewalk to prevent ice, as well as scoop the ice and snow from it. An old lady comes and slips. She sues me for poor maintenance of the sidewalk. I can present my case as a "best effort" case. I did my best to prevent the sidewalk from being slippery and therefore it is not my fault that she still slipped and fell.
With EULAs, it's a matter of CYA (Cover Your Ass). If you didn't put one and got hauled into court because your software farked up a whole bunch of financial records, for instance, the court would say, "Look, you didn't even try to warn the user that your software might screw up, therefore you're liable." With an EULA you at least have shown that you tried to protect yourself. The EULA itself doesn't necessarily have to be enforceable; the fact that it makes an effort in a 'safe' direction is enough.
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A similar legal principle exists in regard to tresspassing. If a certain section of private land is continually traveled on without permission of the owner, but the owner does not actively attempt to stop the travel on his land for a certain period of time, that section of land becomes a public easement for travel. This applies to such sports as mountain biking, where cyclists continually ride on private land, and if the owner of that land does not actively restrict that travel, it becomes a public trail.
But there's a problem with your argument -- EULAs are contracts that are applied after the product has already been bought. How can the sale be limited by conditions applied after the consumer has already upheld their side (i.e., paid for the software)? You certainly can't do this with contracts over physical objects...if I buy a bottle of shampoo from Target, they can't step in after I've paid for it and received it and say "and now, you have to agree only to use this shampoo on the left side of your head, or you can't use it at all." Why is software different?
--Sam L-L
I complained to the local Microsoft office and they basically admitted that they had no way to force the shops to accept their "return to shop" policy even if it is printed on the box.
So what makes them think they have any way to force you to accept all the little policies in the EULA?
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