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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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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
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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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.
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
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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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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