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."

Comments

You broke it already...

[mlknowle]

Remember those little stickers on the CD-ROM pouches? You have already agreed to read the agreement.

Your script needs to be able to display the EULA, and get past it w/o cliking "agree" or whatever.

Just a thought.

[Dr. Bent]

I've always seen on EULA's something to the effect of: "If you cannot accept this agreement, please return this product to the retailer you purchaced it from". Has anyone ever actually done this?...Returned opened software saying 'I couldn't accept the license agreement'? Could you use this as a way to get around the Windows tax on new PCs?

Re:Just a thought.

[TheABomb]

You can try this, but most retail outfits (at least, the ConglomoCorp Chains) have "no-returns-on -opened-software-except-for-same-title-exchanges" policies. The same policy applies to software, music, and movies. IANAL (yet), but one could try to make the case that if their end of the license is not upheld, then you are free to do with your junk CD as you please.

Re:Just a thought.

[keesh]

I did it once on some software which was supplied with a PC I bought. Note that this is in the UK, so we can get away with a few things that you USians, erm, Americans probably can't.

Basically it went like this:

Me: How much would you take off for not installing Windows 98?

Sales Droid: We always install Windows 98.

Me: I don't want Windows 98

(five minutes of this, you know the story)

I gave up eventually. The machine was underpriced anyway, even including the 'tax'. They'd already installed the OS, so there was no way I'd be able to get that off -- they'd clicked 'I Agree' for me, I suppose.

What I did get a discount for was all the nonsense that came with the computer. Basically, Office, some virus scanner and so on. I had to take it to the store manager, who told me he'd never heard of anyone not accepting the license agreement before, but eventually he refunded me for everything except the OS.

Why they wouldn't sell me the computer without the software to begin with, I don't know... Probably to reduce all the idiot calls they get from people who thing Windows is a 'Word Processor' (I'm not making this up, I've heard that one a few times).

So, anyway, it's worth a try, so long as you don't value your sanity too much.

Re:Just a thought.

[sheetsda]

"If you cannot accept this agreement, please return this product to the retailer you purchaced it from". Has anyone ever actually done this?...Returned opened software saying 'I couldn't accept the license agreement'?

The way you do it is to exchange your "defective" copy first, then return the unopened one they give you.

Re:Just a thought.

[whovian]

Do these EULAs explicitly permit this -- what is essentially a transfer of the agreement from a sales company (implicitly approved of by the software manufacturer) to the consumer?

If they are transferable, then in my view there are two logical outcomes: Either the customer has the right to see the EULA on demand, or the sales company who is agreeing to the EULA for the customer ought to be liable for any misuse of the software by the customer.

Selective Enforcement?

[photon317]

Aside from the "real" issue that EULAs are morally wrong, surely an appeal can be made to non-enforcement. I don't know the legal wording, but it seems there's probably a way to say in legal terms "Look, this law/contract gets broken hundreds of times per day, and nobody really cares or enforces it, therefore when you single me out and enforce a EULA on me, you're really being discriminatory and using the law/contract to acheive some other goal".

There must be some legal precedent for the concept of "If you never actively enforce a law, and allow it to be broken (in obvious publicly-visible ways) over and over, you can't then go at a later date enforcing it at will on specific people you decide to target, it's not right".

For that matter, if such a legal principle exists, I'd really like to see someone apply it to the traffic ticket system as well.

Dangerous misunderstanding of "No EULA" and law

[Seth Finkelstein]

Without the EULA, I am free to use my software within the bounds of copyright law.

This is very dangerous and misleading! There's much law which says you are NOT THE OWNER of the copy, and so you are not reading section 117 correctly. I know, it sounds wrong. I know, it sounds illogical. But that's the law. There's no gimmick, no magic.

See, for example, the comments about the MAI Systems decsion in this paper:

Title III was proposed in response to the decision in MAI Systems Corp. v. Peak Computer, Inc.53 MAI involved the limitation on the exclusive rights in computer programs contained in 17 U.S.C. 117, which allows the "owner" of a program to load the program into the machine's random access memory, or "RAM." In MAI, an independent service organization (ISO) serviced a computer which used software licensed to, but not owned by, the customer. The court held that the ISO infringed the copyright in the program by loading the copyrighted software into the RAM of the customer's computer, thereby making a "reproduction" of the copy under 17 U.S.C. - 106. The MAI court ruled that Section 117 only exempted "owners" of software and not "licensees." Title III amends Section 117 to effectively overrule MAI by allowing the owner or lessee of a machine to make or authorize the making of a copy of a computer program under certain conditions for the purpose of repair or maintenance of the computer hardware.

Specifically, the making of the copy is allowed (1) if the copy is made "solely by virtue of the activation of a machine that lawfully contains an authorized copy of the computer program, for purposes only of maintenance or repair of that machine," (2) if the new copy is used for no other purpose and is destroyed upon completion of the maintenance or repair, and (3) if "any computer program ... that is not necessary for that machine to be activated ... is not accessed or used other than to make such new copy by virtue of the activation of the machine." Significantly, the exception applies only to RAM copies made during the course of hardware maintenance, not software maintenance.

Disclaimer: I am not a lawyer.

Sig: What Happened To The Censorware Project (censorware.org)

Common sense?

[davie]

To expect someone to be bound to the terms of a contract after a sale is ridiculous. Either it is a sale or it isn't. If it's a sale, then I own it and can do with it as I see fit. If it's not a sale then calling it that is a misrepresentation. Call it a rental or a lease, because that's what it amounts to.

If you or I sold someone a car, house or any other property then stuck a contract in the buyer's face and told them "sign it or give me back the property" we'd be a laughing stock, and no court in the world would consider the case. Why should software be any different. If Microsoft and other vendors expect end users to be bound by the terms of a contract they should be required to present the contract in advance of the purchase, period.

Re:You broke it already...not

[darkonc]

As far as I'm concerned, any agreement that I make in the purchase of software occurs before you accept my money. Once the money is accepted, the agreement is binding. Clicking on the 'i agree' button is just a stupid human trick that I have to go through to get the software that I purchased to do what you told me it would do.

Imagind if you purchased a car, and the first time you went to fill it up at the gas station, you found a sticker that said:

By breaking the seal on this gas cap, you agree to the following conditions:
You will not open the hood of your car.
You will not make any modifications to the engine
You will not drive it on any road not sanctioned by GM.
Even if the car fails to function as promised, you will not attempt to figure out how any of the features work.
You agree that GM is not liable for any defects in workmanship or design -- even if such defects cause your vehicle to periodically stop dead on train tracks, or spontaneously explode in a ball of flame that makes Die Hard's special effects look mundane.

I don't think that any court in the country would accept that as a binding contract -- yet people expect that to work for software.

Re:You broke it already...(Dell)

[gosand]

It seems like the standard (BS) agreement. But I found it interesting that THIS agreement covers ALL the software that is distributed with the computer. So I wonder what would happen to Dell's EULA if they sold a system with Linux on it? Does that mean that their EULA would supercede the GPL? That doesn't sound right.

Re:don't complain

[Arandir]

Read the EULA before you click "accept". If you don't agree with the terms and conditions then don't install the software.

But I already have the legal right to install the software! Do I have to quote chapter and verse of Copyright Law?

Here's how it works. The author creates a work and publishes or distributes it. At this point in time there are two sets of right bound to the work. The first set of rights are exclusive to the author. These include the right to distribute, modify and generally copy the work. The second set is not exclusive to the author, but belong to the public or to the possessors/owners of the copies. These rights include using the work in its customary manner. If it's software, the author does not have the right to prevent you from using it.

If I don't accept the terms of the EULA, and I can somehow install the software without assenting to the EULA, then I have the right to use the software.

Software that companies write belongs to them so they should be free to do whatever

Absolutely not. The only thing that belongs to the software companies are the rights to copy, distribute and modify the software. They do not have the exclusive right to use the software.

"Intellectual Property" is not property. This has been asserted by the courts before. Don't let the name fool you, it is just a linguistic shorthand.

If I don't agree to the my landlord's rental agreement, I still can't live in his/her apartment, because that apartment is his/her property. But if I don't agree to your EULA, you can't prevent me from using the software, because the copy in my possession is not your property.

If you want more restrictive terms over the use of the software, then you may attempt to get me to agree to them. But you will have to do so before I aquire the software. That may mean you have to forego selling your software through traditional retail channels. Too bad. You are not king of the world so you don't have the right to make up the rules as you go along.

...even if they require handing over your first born or something.

Such a clause would be illegal.