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.

Lets have fun with EULAs...

[Xunker]

I'm going to write some fantastic whizz-bang piece of software just for the pleasure of writting a EULA with a clause that goes "The lisencee of this product must wear a gorilla suit while using said product. Upon violation of this clause, the lisencee agrees to send the author Five (5) kiliograms of Reeses-Pieces(TM) Brand Peanutbutter candies."

What's interesting

[GSloop]

about this, is that the SW companies want to treat the EULA like a contract. But there's no negotiation. The power of the parties is vastly different. Take it or leave it contracts often don't stand.

I'm obviously not a lawyer, but these are points that have come out in court, when contracts are challanged.

What's so interesting about this, is that it gives the user a chance at negotiation. Sure, it's a farce, but so is the "contract" the EULA tries to put in place. (There's no consideration - you bought the software - money for package - there's the consideration. Now, you must click the EULA too? There's no consideration (transfer of something valuable) happening then, so no contract can ensue.

So changing the contract to something else isn't any more crack-pipe'ish then the usual EULA.

Lastly, have you ever read any of those EULA's? I'd bet that 10 lawyers would come up with 10 significantly different interpretations of the "contract." That doesn't even take into account what the courts might do. So, reading your own EULA is almost futile, and who can afford to get an expert legal opinion on 10+ pages of legaleese for every software product they buy.

EULA's need to get challenged in court, and struck. UCITA needs to die an ugly and nasty death. With UCITA, EULA's will have the real power of law, not just a sham that the SW companies want you to believe.

Make sure you discuss UCITA with your STATE representatives. UCITA has to pass in your state for it to make it into UCC. You might even consider working to pass laws that provide protections against vendors who are (or will be) in UCITA states.

Cheers!

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)

Re:Dangerous misunderstanding of "No EULA" and law

[Dr. Awktagon]

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.

fundamental question

[drDugan]

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?

Crossing your fingers means you don't promise

[JimmytheGeek]

By long-standing common law precedent, if you cross your fingers while you click, you don't have to abide by the terms. If you feel like going the extra mile, you can tell the dialogue box in person that you don't accept some or all of the provisions.

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:A much easier way around it

[Andy_R]

Careful, you are now legally prohibited by the DMCA from creating any countermeasures to software protection, so you had better get some contraceptives right away or you could end up going to jail.