Selling Your (MMORPG) Soul

Gnpatton writes: "Here is an article about the recent ruling in the Blacksnow/Mythic case. It talks about the EULA (End User Licence Agreement, that thing that you never read) and about how this case might affect the rest of the software industry, not just with game companies. From now on, you might just want to read the EULA before you click 'accept'."

Comments

but you don't sell accounts

[blablablastuff]

just logins and passwords your password is your own property

Ouch.

[moyix]

An EULA held up in court, despite the fact that no one ever signed anything, and there were no witnesses... this sounds like a really bad ruling. My guess is that it will be appealed, and eventually struck down. Either way, I think this case is going to be big...

Re:Ouch.

[moyix]

I guess I don't have sufficient legal background to be talking, but my common sense tells me that this is absurd. You buy some software, but before you can use it you're required to give up some rights that you have been given? The doctrine of First Sale (conceived, iirc, in a case about contracts printed in books that said you couldn't resell the book) seems to apply here as well: why should you be forced to give up some of your rights in order to use a product you've bought?

Re:Ouch.

[Fulcrum of Evil]

And it isn't like you are totally bound by this. If you purchased the softwared, decided that you didn't agree to the EULA, then you can return it. End of story.

Yeah, like you can actually return the software for a refund. Try it sometime - it won't work

It is not like this is totally out there - these agreements popup BEFORE the software installs and they blatently say - IF YOU AGREE TO THIS CLICK HERE!!! What is so hard to understand about that?

It pops up after you've bought the software and opened it, thus removing your ability to back out. Since this gives you the option of clicking on agree or waving goodbye to your cash, I doubt any sane person would hold the EULA enforcable.

Re:Ouch.

[Drakantus]

If you purchased the softwared, decided that you didn't agree to the EULA, then you can return it. End of story.

Huh? Return it, how? Software retailers don't accept returns, except to exchange for another copy of the same thing.


It is not like this is totally out there - these agreements popup BEFORE the software installs and they blatently say - IF YOU AGREE TO THIS CLICK HERE!!! What is so hard to understand about that?

It's a like a contract signed at gunpoint. You pay $50 for an office suite, go to install it, and it says to install you must click agree. Otherwise, kiss your $450 away because we know you can't return it and get your money back.

Re:Ouch.

[Erasmus Darwin]

"An EULA held up in court, despite the fact that no one ever signed anything"

It's more than just that, however. This is a case about Mythic asserting its right to control data on its own servers that're the indirect reflection of the user's interaction with the game.

Personally, I think the simplest solution would be if Mythic had decided to just provide the person with the virtual data that he was so worried about. The catch, however, is that they'd cease hosting it on their servers. So the plaintiff would have a copy of his character data, but it would no longer be part of the game.

Re:Ouch.

[Bios_Hakr]

Blizzard tried this in the Diablo 2 days. You could have a char on their server, and a char on your PC. The way it panned out was that the people hacked the data files on their PC to get a mega-character. Therefore, the "User Hosted Char" games were boring. The files on the Blizzard servers were not hacked, so people had to work to reach level 99.

You could try to keep a MD5 of the user's char on a server at compare at runtime. Then create a new MD5 at game exit. Of course, you'd have people hacking the data during the game. Not to mention how to handle game crashes.

Re:Ouch.

[Arandir]

But the fact of the matter is that you are agreeing to give up said rights.

I haven't agreed to any such thing. You cannot consider my use of the software (including its installation) to be evidence of acceptance, since I already possess the right to use (and install) the software by virtue of purchased it commercially. You haven't rented, leased or licensed it to me. You sold it to me.

Imagine you just purchased a new car for zero down and zero percent interest. Sounds like a good deal? So you sign the papers and go to your new car. But there stuck to the steering wheel is a piece of paper that says "by driving this car you agree to immediately refinance you car for $10,000 down and 10% interest. Just an "agreement" wouldn't last five seconds in a court of law. Yet this is essentially what EULAs are doing. You have made an commercial transaction to obtain the software, which grants you the right to use and install the software according to both the US Commercial Code and Title 17 Copyright Law. But upon attempting to use and install the software you are presented with a different agreement which is in opposition to the commercial transaction.

Re:Ouch.

[Erasmus Darwin]

"You could try to keep a MD5 of the user's char on a server at compare at runtime."

I think you misunderstood my point. Character data for the game world would continue to be hosted on the Mythic server. However, Mythic would send a copy of the savegame file for the plaintiff to him. They would then remove that savegame from the server.

The result is that the plaintiff has a copy of his character's data (i.e. the information that is the basis of the lawsuit), but the character's data no longer exists on the Mythic server and thus no longer exists in the Mythic game world. The plaintiff would have all the bits that made up his or her character, but it'd be utterly worthless as said bits would no longer affect anything.

The beauty of it is that it underscores the entire problem of the suit. The suit wasn't about knowing or copying certain data or even owning an exclusive copy of certain data, but rather about insisting that the certain data exist in a very specific place on Mythic-owned server. Since attempting to control someone else's server in that manner is somewhat ludicrous, the complain was disguished in the form of data ownership. But if that were the case, Mythic could merely hand over the data and wash its hands of the matter as I've explained above.

Re:Ouch.

[cduffy]

It's a sale in substance -- if I go to CompUSA and I say I want to "buy" winXP, they don't tell me "sorry sir, we only rent it out". No, they give me a copy of the software, and put together a bill of sale, and the only place where I'm told that I'm actually "renting" this software is when the program that I purchased and own makes this ridiculous claim.

If WinXP is only rented and never sold, then CompUSA is obviously engaging in massive fraud by claiming to sell people a product that's only rented out. It's also interesting that a clickthrough can be considered a valid rental agreement for software, but to rent anything else one needs to sign all these forms in the store before touching the merchandise, much less paying for it and taking it home. If it looks like a sale, and quacks like a sale -- it's a sale, and any sane court will acknowledge that.

Re:Ouch.

[cduffy]

Except it's not simple, because Joe Bob doesn't go to CompUSA and buy the right to rent WinXP, he goes to CompUSA and buys WinXP. That is: If the folks at CompUSA tell Joe he's buying WinXP (because it's what they give him when he asks for it, and they don't say anything about a rental agreement, and they write up a "bill of sale", etc), then CompUSA sold Joe WinXP. Once again -- if it looks like a sale, and quacks like a sale, and the folks doing the selling don't say different before the money changes hands, it's a sale. If CompUSA were to sell Joe the right to rent WinXP, they'd need to make sure that Joe understands that that's what he's buying when he forks over his money -- and that simply isn't the case. There's adequate case law backing this up in non-software-related fields.

Re:Ouch.

[arkanes]

yeah, but we all know that you can't return the software - in fact, were I a court, I'd rule that EULAs are entered into in bad faith by software companies - they have no intention of honoring returns, and thus retail stores won't do so either (as an expiriment, I should order direct from Eidos or something and see if they honor a return...). If they're going to bind you to an EULA, that includes clauses for returning (opened) software, then they have an obligation to accept those returns.

Re:Ouch.

[WNight]

Maybe Mythic should simply design a game that doesn't lend itself well to coming into the middle.

It's like how games could prevent the sale of items. If you couldn't use the items until being roughly powerful enough to go get it yourself, and if the quests didn't renew in such a predictable way as to allow "professionals" to go through them each time, you'd see the market dry up.

If the game was based to a large degree around character interaction, such as having to belong to a guild or something and work within it, other players would be annoyed at the "new" player and probably kick them out of all the in-game power structures.

There are many ideas for how you could tweak a game to remove the huge cash incentives for selling in-game items.

And really, there's probably no legal way to prevent these actions short of printing the legalese on the box, where people can see it before purchase. (Even then, courts have ruled that nobody reads the small print, so it's not binding... You'd need to write it in clear and consise language.)

Re:Ouch.

[Fizzlewhiff]

Imagine you just purchased a new car for zero down and zero percent interest. Sounds like a good deal? So you sign the papers and go to your new car. But there stuck to the steering

Funny you should use this as this is happening... sort of. At the top of consumer complaints lists are car dealers who offer really good financing. The buyer drives off the lot and in a few days gets a call from the finance manager saying they were not approved for the loan but they were able to get another deal at a higher interest rate. Because they have taken the car off the lot and because their right to back out of the contract have elaplsed the buyer is either forced into that deal or forced to find a quick solution on his own.

I think the solution for EULA's is to buy and return for reasons of not accepting the EULA. If the stores don't allow it then there is probably something that can be done in small claims court about it. I think in time publishers would almolst have to make the EULA available on the outside of the box or post a copy at the retailer.

Re:Ouch.

[ryanwright]

The buyer drives off the lot and in a few days gets a call from the finance manager saying they were not approved for the loan but they were able to get another deal at a higher interest rate.

I bought a new Mitsubishi in 2000 and they did this to me. They wanted me to come back and re-sign the new terms (at an appalling interest rate). I told them hell no, and if they didn't make the original terms work, I wanted my old car back. They tried to tell me that this wasn't possible, that they didn't have my car anymore (bought the new vehicle on a Friday, they called me on Monday, and already got rid of my car? Right.). I explained that this was their problem, not mine, and told them they had a choice: Make the original terms work or return my car to me. "And what if we can't do either?" .. "Then I'll refer any further calls to my attorney."

Lo and behold, a few hours later, they "pulled some strings" and got me the loan. Truth: They did a credit check before we even test drove the vehicle. With a rating of over 700 I was told I had free choice over any vehicle in the showroom. They were just trying to scam me.

What about pre-installed software?

[grape jelly]

Of course, this doesn't apply to all pre-installed software. A number of programs that come now require you to agree to an EULA before you are allowed to use the program, but what about Windows or any software that is pre-installed that doesn't require you to do so? If the user never clicked 'Accept', can he/she still be bound to the EULA as if he/she had clicked it, merely by using the software?

Re:What about pre-installed software?

[wo1verin3]

You could free up that multi-gig of space if we could find a way to uninstall MSN Messenger

Re:What about pre-installed software?

[hyphz]

> PC's that come with windoze pre-installed by
> the OEM present the EULA the first time you
> boot, and won't let you go into windows without
> clicking "accept".

So what operating system's services is the EULA-displaying program using?

Whoa!

[rmohr02]

Hasn't there been a recent article about programs making you get rid of other programs such as Ad-Aware before being able to use them by hiding a clause in the EULA? That didn't really get through to me, but this time it will.

Huh?

[delta407]

Doesn't everyone read the EULAs?

Re:Huh?

[Anonymous Coward]

Heck, I didn't even read the article, can you give me the jist of it?

Re:Huh?

[Bios_Hakr]

I read them. Actually, I print them, ammend them to read that the software is covered under the GPL, then sign it. Then I click YES.

After all, If MS can make a change to an EULA, so can I.

Re:Huh?

[HiThere]

I know that was intended to be funny. But as far as I can tell, I'm the only one in the office who reads the EULAs. I don't always understand them, but I do try.

That's what originally converted me to Linux.

That was one weak article

[Kuato]

I'm not sure how that article made it to Slashdot. That was one helluva weak article. It might have helped if it had some information other than 'bevaaare!'

Re:That was one weak article

[Leven Valera]

This article is dangerous b/c it sets a precendent in regards to EULA's.

Several months ago, there was a /. article about how a binding contract was formed over email in regards to a real estate purchase, and that alone sparked some pretty quick changes in the real-estate purchase process.

LV

Eh?

[MisterBlister]

Just because the Judge ruled that they do, in fact own all the 'virtual property' in the world (and why shouldn't they? its all just bits on the harddrive in their server) doesn't really say anything about the general applicability of EULAs. The time to start worrying is when some ridiculous clause of a EULA (Microsoft..Most P2P software) is broken and enforced, not when something that seems pretty much like common sense is enforced (regardless of whether it was mentioned in the EULA....)

read the eula?

[isbhod]

what if i don't agree and want my money back? do you think i could go up to best buy and say "hey man bought this game becasue it looked cool, but I don't agree to the EULA so can i have money back?" i'd be laughed out of the store. i say if a software co. want us to abid by their EULAS then they must print their EULAs in easy to read (for those that have poor eyesight) printing on the outside of the box, and we must agree to the EULA before we purchase software. OR they need to force stores that do not accept open software returns to start taking returns. Either way the software co. loses, either giveup precious advertising space on their software package, or try and do battle with the stores that pimp their software out.

Re:read the eula?

[ryepup]

maybe thats what people need to do, is going in groups to best buy, compusa, wherever you get software, buy it, refuse the EULA, and return it as a group. More than one person returning it can't be laughed out of the store. The more hassle it is for the local vendors, the less they will want to deal with that kind of crap, and maybe stock different things, and the effect will go up the chain to the software publisher that made the EULA so frickin stupid in the first place.

If anyone is in Gainesville, Florida and wants to try this, I'd be game. Reply.

Re:read the eula?

[OwnedByTwoCats]

Why is that a problem for the consumer?

Maybe the requirement to print the EULA in a readable font on the outside of the package will encourage vendors to make them shorter and more comprehensible, and less restrictive.

Re:read the eula?

[dattaway]

Stores do not like unhappy customers. Better have a lawyer to protect your rights, because they store is likely to call the police for crowd control and have you guys bused off to the station for processing.

It seems expensive to fight big companies.

Re:read the eula?

[Jon Howard]

Better have a lawyer to protect your rights

You'll get branded a troublemaker and not given as much credibility for being so uncivil - it's terrible for PR, and this is a situation where the public is your only friend. Just head down and demand satisfaction, if they haul you off without cause, you'll have grounds for a real court case later (they used the police to force acceptance of a contract, or something along those lines).

Just be upright, civil and don't resort to lawyers unless you have to. It would be a much more reasonable thing to discuss your plans with a lawyer in advance than to bring one along.

Re:read the eula?

[Blue23]

If they have the EULA only on the inside, return it as defective. Better yet, EXCHANGE it as defective. Continue.

"I was installing, chose the correct option, and the install exitted with a message. Can exchange this for another copy?"

Each defective disk gets returned, and costs the software maker, not the store (who is lousy for not accepting it for full refund, but isn't as lousy as the people who make the EULA in the first place).

Eventually, after the second or third time and they clue in, explain exactly where it is bombing. Tell tham that that isn't correct behavior for software in your opinion, and then ask for the full refund. You're in the same boat as you were before (owning software you don't like the EULA on), but you've been able to make a true statement that you believe the software is defective for not installing if you disagree with the EULA.

=Blue(23)

Re:read the eula?

[mwa]

If they don't accept it back, demand a manager write "return refused" and sign and date your receipt. Explain to the them that according to the legal document included in the box/presented on the screen, he's a legal agent for the software vendor and is contractually obligated to refund your money because you do not agree to the EULA. Show them that portion of the EULA. See if they sign or give you a refund. (This assumes the EULA has the standard "if you do not accept return to place of purchase for a full refund" clause.)

If this is truly a license, then the retailer is acting as an agent of the manufacturer, so they must also comply with the terms of the EULA. Failure of the agent to comply with the terms by accepting the return is breach of contract and nullifies the agreement making the transaction revert to a sale (which I believe it really is in the first place).

Now you can either pursue the breach of contract in small claims court to really get your money back or have actual evidence that you attempted to comply with the terms but the manufacturer's agent refused. At that point, you should be free to do whatever would be legal under standard copyright law. I can't imagine a court finding that you are still bound by the EULA under these conditions (of course, I hate to imagine them finding a mouse click a binding agreement as well).

Of course, I Am Not A Lawyer, this is not legal advice, etc. But if anyone tries it, I'd like to know how it goes. If enough people push this way, retail stores will be forced to either drop their "no return on open software policy" or become unwilling allies in the fight for reasonable EULAs.

was it on the service or the software?

[Dr. Awktagon]

Image if you were buying a bed and you were asked to sign an agreement first.

Or rather, imagine if a tag on the underside of the bed read "You agree to the agreement on our website just by laying on this bed." And courts upheld it because of some obscure twist of logic (the way they say making a copy of the software you bought in RAM is a copyright violation).

As for this ruling, well, is it for the SERVICE or for the SOFTWARE. If it's for the service, the position isn't as clear, because you didn't buy anything, you agreed that if you do such-and-such, the service will be provided to you, and if you don't do such-and-such, it won't.

But if the EULA on the purchased SOFTWARE was found to be binding, we're in DEEP SHIT TROUBLE, you better believe it.

Software End-User: Ha ha! I found a way to use the software in a way that Microsoft doesn't want, but still meets the terms of the EULA!

Microsoft HQ: Ieee! They found a loophole in our EULA! Quick! Mutate the EULA terms every 15 seconds! On my mark... go!!

End-User: Ahhhhhhrg!! They're mutating EULA frequencies! I can't keep up with the changes! I might be violating them and I won't know! *KNOCK KNOCK* Uh oh, it's THE KNOCK! The cops are here! *dragged away at gunpoint*

Microsoft HQ: Whew, that was close! Reduce EULA rotation frequency to the usual once per day.

Re:was it on the service or the software?

[vanyel]

Or rather, imagine if a tag on the underside of the bed read "You agree to the agreement on our website just by laying on this bed."

That's not the way these work. I think even when you buy a windoze pre-installed, you have to click on it when the machine fires up the first time.

Even if not, the real issue is that people put up with this crap because it rarely impacts them. They simply click and go on, and then when Kazaa uses it (or more likely, a hacker who figures out how to take it over), they'll scream "they shouldn't have been allowed to do that! Pass a law!" Well, if people would Just Say No in the first place, there wouldn't be a problem. But apathy rules, and as a result, there isn't any commercial software out there that doesn't have an egregious EULA.

I would support a law that required a plain english version in front of the legalese, and that the whole thing had to be less than a page.

Re:was it on the service or the software?

[interiot]

But if you're tired, and all the beds available to you have this obscure mantra on them, what do you do? You have to lay on one of them, but how do you decide what to pick?

Re:was it on the service or the software?

[Bios_Hakr]

Ok, I'll take a stab at telling you why EULAs are bad.

1. You don't sign an EULA. In order for a contract to be valid it must be signed by both parties and the original must be given to the End User. There is no reason Microsoft couldn't release Digital Sig 1.0 today and require that a EULA have a valid sig. If you wonder why the YES/NO thing is bad, as yourself who installed your mom's software. If a third party installs software for your mom and clicks yes, should she be held accountable for an agreement she never saw? Or is the third party the one bound to the EULA?

2. EULAs are not easy to understand by common sense. If I buy a car, I can use it anywhere. I can let anyone ride in my car. I can let anyone borrow my car. Why is a Win98 disk any different? You can say that the disk is easy to copy and the car is not. That is a major factor, but I don't think the prob should be solved under legal terms. Agian, Digital Sig 1.0 could be used to authenticate a user's sig agianst a product code and compare them with a MD5 on a server at Redmond. Why haven't they done that already? If I was into conspericaies, I'd say it's because MS wants you to be doing something illegal. That way, they control you.

3. The terms of the EULA are subject to change after you agree. Right there, the whole legality of the system comes crashing down. If you and I agree to meet at 4:30pm at the MS Campus, and I show up at 6:30, who's the asshole? Well, seeing as how I changed the meeting time and posted the change on the back door of my house, you would be the asshole for not checking to see if the time had been changed. Also, what gives one party the right to change a contract and not the other. As of now, I am changing the EULA of my copy of Win2k to reflect that it is now covered under the GNU/GPL. Is that legal? After all, MS has been given notice of the change(in this forum).

Re:was it on the service or the software?

[Bios_Hakr]

I think even when you buy a windoze pre-installed, you have to click on it when the machine fires up the first time

What if you purchace a PC from a mom & pop store? Are you bound by the EULA that pop clicked on when he was installing your video card drivers for you? Is he bound to the EULA because he was the one who clicked?

The only good answer I can come up with is that he must print the EULAs and have you sign them when you pick up your PC. All three parties are then bound (you to him, and him to MS) into a strange love/hate triangle.

If it was later found that the EULA had been violated, I wonder who would spend time in the federal prison?

Re:was it on the service or the software?

[cduffy]

If I bought the bed, and I own the bed, I'm under no obligation to obey that tag -- I can cut it off if I want to, or ignore it, or whatever. Since I own the bed, the purported contract (allowing me to sleep on it in return for doing foo, bar and baz) is no contract at all -- I already have the right to sleep on the bed since I own it; and without consideration (that is, unless there's something in it for each side) a contract is invalid.

The courts have ruled that publishers can't put a contract inside the front cover ("by reading this book you agree not to resell it" &c)... why should it be any different for software?

Re:was it on the service or the software?

[NewStarRising]

You choose the Open Bed, that anyone may lay on, and everyone has the right to put clean sheets on! 8o)

Re:was it on the service or the software?

[arkanes]

As I recall, the actual wording is "You may release this software under version X, or, at your option, any future version", meaning that it's the END USER who can either a) continue using/distributing it under the original license or b) distribute it under a future version of the GPL. The wording does not permit the author to retroactively change clauses the way the MS (and most other commercial) EULA claims to.

Doh!

[boa13]

What a weak article. I don't know this site, but it seems to me as if it is targeted to younglings discovering life. It belongs to the 12-years old crowd, not Slashdot.

Software EULA are messed up

[xinu]

Why is it that you have to purchase the software to read the EULA. What if you don't agree with it and refuse to use it at that point out of spite. You've already opened the package and can't get your money back usually. I just don't get it, never have.

Re:Software EULA are messed up

[reemul]

EULA's that have the text inside the box where you can't see it until you've agreed to it aren't enforceable, that has been decided in the past (IIRC, likely someone here who remembers the exact case). That's why most boxed software has some sort of seal on the software media itself stating that by breaking that seal you are agreeing to the terms - by then you have the box open, and can read the terms enclosed. That arrangement is likely to be enforceable. As long as that seal is intact, and all of the other contents are as they were when you got it, most retailers will take it back - they may have to, as those licensing terms almost always state that if you don't agree, you need to return the software unopened to the point of purchase for a refund. (They've all got shrink wrap machines, they'll usually just put it right back on the shelf before you've even made it out of the store. Doesn't mean that it will be easy, just possible.) If you broke the cd seal (or opened the little bag the floppies were in, if you remember that far back), the retailer will usually assume that you made a copy and are trying to rip them off, and refuse to take it back. Besides, then it's much harder to sell it to the next guy as new. Moral: don't open that seal if you don't want to be stuck with the software or the EULA.

The click-thru EULAs have the text right there on the screen, so there's no excuse that a judge will accept for not reading it. Particularly those that make you hit some odd key or a non-default button to continue, so that you can't argue that you'd accidentally hit enter too many times and never even saw the EULA screen. Even getting a kid to do it won't work, since they would be considered to be acting as your agent. A minor who bought the software with his own money and clicked thru *might* get out from under, since he can't be bound by a contract and his parents were not involved (which would bind them, if not him), but don't bet real money on it.

Really, by arguing under what circumstances the EULA is or isn't binding, we're already conceding the biggest point: that a licensing model should even apply at all to software. I'd much rather see it treated under the law as a book or CD, my property to dispose of as I please subject to the doctrine of first sale. I can tear out pages, draw on it, loan it to friends, whatever I want. That's the fight we need to focus on, not minor little bits regarding the fine details of consent without a paper signature.

Re:Software EULA are messed up

[furchin]

That's why most boxed software has some sort of seal on the software media itself stating that by breaking that seal you are agreeing to the terms - by then you have the box open, and can read the terms enclosed. That arrangement is likely to be enforceable.

That is not true. You cannot agree to a contract without having read it. Since the EULA contract is inside the box, breaking the seal on the outside of the box is the least enforceable part of the EULA. However, if I am not mistaken, by breaking the seal on the box, you agree to a smaller agreement that is on the outside of the box. Generally, it reads something along the lines of "Either you must agree to the EULA inside, or return the product to the place of purchase for a refund." Of course, getting stores to refund your money is an entirely different matter...

Re:Software EULA are messed up

[reemul]

Try reading my post again, since that's what I said. By software media I meant the actual media - CD, DVD, floppy - not the shrink wrapped box. I started my post by explicitly stating that agreements you enter into by opening the box, when the terms are inside and not readable until you've agreed and opened the box, are unenforceable. Which is why most manufacturers have instead put some sealed wrapper around the media inside the box, where you can read the EULA before deciding whether to break that seal and get at the software. Even the CDs included with computer manuals have something similar.

Re:Software EULA are messed up

[Sycraft-fu]

Some important differences from a real contract:

First, there is no proof you ever clicked the button. With a real contract there is a a physical proof (your signature) that you agreed, witnessed and countersigned by a notary and/or the other party of the contract. Here, the proof is absent. They can't PROVE you agreed (maybe someone else clicked it, maybe it failed to display, maybe there is software on your system that prevents it from displaying). Remember the burden of proof is on the prosecution here.

Second, there is no room for negoation with an EULA, which is required with a real contract. You can negoate your lease agreement and so on. Now the other side doesn't have to accept your changes, but they do have to negoiate. With EULAs, this never happens. the other side never even signs the contract.

However most importantly EULAs often seek to take away rights that they just can't. There are things you just can't give up, even by contract. For example you can't sell your self into slavery.

Re:Software EULA are messed up

[harlows_monkeys]

EULA's that have the text inside the box where you can't see it until you've agreed to it aren't enforceable, that has been decided in the past (IIRC, likely someone here who remembers the exact case)

The highest court that has considered this issue, in the ProCD case, decided that they were enforceable.

Re:Software EULA are messed up

[commodoresloat]

I don't think that proof as you are stating is required. There have been many cases in which verbal and implied contracts were upheld, and a EULA is far more concrete than a verbal or implied contract.

Not if you contest that you ever signed it. Or, I would bet, if you have software on your system that circumvents it (such software might violate the DMCA, but that's a different issue). The point is the contract is not binding if there is a substantive doubt about whether you actually agreed to it. The other issue the poster raised was the lack of possibility of negotiation ... the really interesting thing would be software that "negotiates" the EULA.... by changing the text of the EULA and THEN agreeing to it, saving proof that the EULA agreed to was one of your choosing rather than the one presented by the software company. Again such software would probably violate the DMCA but that is a separate issue. It would certainly render the EULA nonbinding, or the courts would have to accept that any software-generated EULA is binding, even if it is generated by the end user's own software....

Now that would be really cool: "By clicking OK, the user agrees to accept payments of $100,000 cash, in small bills, from Microsoft, each week for the remainder of his/her natural life. Microsoft in turn agrees to deliver such payments promptly each week...."

Re:Software EULA are messed up

[Rogerborg]

• First, there is no proof you ever clicked the button. Remember the burden of proof is on the prosecution here.

Absolutely untrue. Civil litigation is decided on balance of probabilities, not beyond all reasonable doubt. It's highly probable that you clicked accept; in this case, the burden is on you to show that you didn't.

Re:Software EULA are messed up

[peddrenth]

"Why is it that you have to purchase the software to read the EULA."

Same way that insurance companies won't tell you the terms and conditions until a month after their cover starts... because they're fraudulent cheating bastards.

Of course if you can't agree to the EULA, you should definitely return it to the store for a refund -- if they're selling a defective product (i.e. unusable "as sold") then they take it back, and if they don't, you report them to trading standards and get their shop closed down.

Laughing customers out of the shop is no defense.

Re:Software EULA are messed up

[oyenstikker]

When you make a change to a contract, both parties must sign it.

Re:Software EULA are messed up

[bluebomber]

With a real contract there is a a physical proof (your signature) that you agreed, witnessed and countersigned by a notary and/or the other party of the contract.

95% of the contracts you agree to are verbal and have no signature, witness, or notary associated with them. Think about the fact that every time you buy something at a store, you are creating a contract to exchange money for goods. I'm not sure what else you might mean by a "real" contract.

Remember, an oral contract is valid and enforceable. (It just isn't worth the paper it is written on.)

Re:Software EULA are messed up

[Sycraft-fu]

Well in the case of most EULA cases we would be talking about a criminal proceeding, a breach of contract. The company would be charging you with doing something illegal as per the contract.

Re:Software EULA are messed up

[bwt]

You mean 1 of the 3 highest courts that have considered this.

You forgot Step-Saver (3rd Circuit) and Vault v. Quaid (5th Circuit) which held they were not enforceable.

Re:Software EULA are messed up

[arkanes]

Now, that was probably sarcasm, but lets not get too uppity - there has to be a lower class, and it's not neccesarily anyones fault that they're part of it. So let's not go blaming the exploitation of people on them.

Re:Software EULA are messed up

[arkanes]

It's not especially difficult to work around the installer and get working software without ever being presented with an EULA. I agree that the courts would probably take a dim view of this behavior, but it highlights some of the legal quandries about EULAs - when I do this, I'm obviously doing something shady. But how can I be held to an EULA that I'm never presented with? What if I edit it, and then agree to that? That's a commonly accepted process in contract law. most likely, there will be some sort of law passed that makes it illegal to edit installers, much like the ones that artificially make it illegal to decode cable.
Or they'll decide that fair use and first sale doctrine don't apply to software, and that companies actually do have the right to bind to you to an agreement that you've never seen (the agreement on thier website), without your explicit consent.

Re:Software EULA are messed up

[Rogerborg]

• Well in the case of most EULA cases we would be talking about a criminal proceeding, a breach of contract. The company would be charging you with doing something illegal as per the contract.

Oh, please. If breach of contract was a criminal offence, 90% of the CEO's in America would be in jail right now. There are only a few specific situations where criminal codes apply to breaches of contract: namely hacking cable access, and breaking content lockdown technology, both of those being laws bought by content providers. Mythic isn't large enough to have bought itself a specific law to cover this (yet).

How Mythic's EULA Works

[vjmurphy]

Unlike other EULA's, MMORPGs repeat their EULA's every time a user connects to play the game. In Dark Age of Camelot, the EULA pops up when you log in, and to continue, you have to accept the EULA.

Typically, anyone playing MMORPGs sees the EULA enough and is given the chance to NOT play the game if they disagree with the terms.

Contrast this with the typical software package that makes you agree to the EULA without actually seeing it in most cases, and even before you install the software on your computer.

Everquest has similar provisions (as will Neverwinter Nights, I would assume).

Here is the important passage from DAoC:

* You acknowledge and agree that all characters created, and items acquired and developed as a result of game play are part of the Software and Game and are the sole property of Mythic. You acknowledge that: (i) the Software and the Service permit access to Content that is protected by copyrights, trademarks, and other proprietary rights owned by Mythic as covered in Section 3 below.

Re:How Mythic's EULA Works

[Warin]

I doubt NwN will have these sorts of provisions. IT wont really be needed. The servers will generally not be run by Bioware/Infogrames. The characters and such will be stored on the Client machine... though I believe there is a provision for central character authentication to keep the l337 h4x0rz from making ubercharacters at will. So what idiot would pay for a character that they might be able to make with their very own character editor?

Re:How Mythic's EULA Works

[bwt]

Unlike other EULA's, MMORPGs repeat their EULA's every time a user connects to play the game.

Oh. This changes everything. This is not a shrinkwrap/clickwrap style installation EULA, but a web-access EULA. The former is the highly controversial case. The latter is not -- they were settled long ago in the Hotmail case. They are enforcable and there isn't much case for saying that they shouldn't be.

Here you are actually getting something more than the ability to install what you already own (which is an explicit statutory right for the owner of a copy). All the elements of a contract are present: the parties communicate directly, there is consideration (you get access to their server, they get agreement to restrictions), and there is a record of assent (I'm sure they make some record when you click "OK", since that info is sent to them).

Re:How Mythic's EULA Works

[geekoid]

Actually, it still has problems.
If I buy the software, agree to the intial EULA, then 3 months later they change it, what recourse does the consumer have?
You can't take it back, You habve basically given the software company money for nothing.
This is like me selling you a widget, then going to your home and force you to agree to the new terms of the widget, or give me back the widget.
How many contracts agreements allow one party to change there side without permission of the other party?

Re:How Mythic's EULA Works

[bwt]

How many contracts agreements allow one party to change there side without permission of the other party?

Lots of contracts say this, except that it isn't "without permission of the other party" if you agreed to allow them to change the terms in the future by accepting terms that say as much. Every time they change the terms, you have the right to abort the contract if you don't like the changes.

You still have the right to resell your copy of the software, which probably isn't much comfort, but legally it is all you get.

So?

[TheDanish]

JBuilder has it in their EULA that by using their software, you waive your right to a trial jury in case you file any suits against them. Basically, the purpose of these EULA's are to rid the companies of as much liability as possible and still have control over their software as they see fit. Personally, I don't blame them, and as long as people continue to agree to them and just whine about it (as opposed to doing something), it'll continue. Eventually, I'm sure restrictions will be made, but not until something that REALLY screws up PR between the public and someone like, say, Microsoft, happens. So, anyway, just read your EULA's once in awhile. It's almost funny how much crap you're actually agreeing to just to use a little bit of software.

"What about free markets"

[Burgundy Advocate]

Heh. Cute, Timothy.

Especially considering the shit the Slashdot crew pulled when "Fascdot Killed My Pr" sold his account. And that was with no EULA at all to support you. You just screwed with him.

At least with a EULA we know our rights.

The Sky Is Not Falling

[lawyamike]

A few points about this decision bear repeating.

First, the jurisdiction of the court: the case was decided by a federal district court, a trial judge within the federal system. The Northern District of California, where the case was decided, is well respected for its expertise in matters of technology, having been the site of several important IP lawsuits and serving currently as the home to Silicon Valley. That said, the decision is binding authority only in the Northern District of California (although courts in other parts of the country may find it persuasive), and it has not been tested on appeal.

Second, the implications of the decision: the court did not decide the validity of a generally applicable statute or a regulation; it only ruled that in the facts of this case, the EULA was not procedurally deficient (for failing to give the user notice of its terms, for example) and was not substantively unreasonable (for imposing any terms that were fundamentally unfair, for example). The courts decide thousands of cases interpreting contracts each year, and they often do so by analogy to precedent. Accordingly, this decision might have no immediate impact upon the way you use software or review an EULA, but so long as this issue recurs, other judges likely will use the opinion in this case as the standard that they accept or from which they find reason to depart.

Third, the mutability of the decision: contract law is mostly state law, and most judicial decisions about the law of contracts may be overturned by the legislature. In the fields of, for example, sales, financing, and construction law, there have been enough disputes across many jurisdictions that most states have found it beneficial to enact a uniform law governing the rights of contracting parties. (The Uniform Commercial Code is the best known example of this.) Should this be a sufficiently momentous decision -- I don't think it is -- or become a sufficiently important issue -- and maybe it will -- then one can count upon the legislatures and the law professors to get involved.

Re:The Sky Is Not Falling

[johnos]

Bang on. Its worth adding that from the skimpy info in the article, it appears the judge did not rule on the overall validity of EULAs. Blacksnow, after all, was not a party to the EULA. The EULA governs the relationship between Mystic and their users. What it does or does not mean is irrelevant to the issue. Its mere existence defines Blacksnow as a third party, and so without legal standing to alter the contractual relationship.

Think of it this way. I buy a burger from Wendy's. If I don't like it, I can bring it back. But I can't sell the right to bring it back to someone else for use on a different burger. The "contract" is between Wendy's and me, and applies to that burger. I can still dispute with Wendy's about replace vs. refund, or if there is really something wrong with the burger, so the existence of the contract and its validity are two separate issues.

Re:maybe not totaly rigth place to ask, but close

[cei]

Most stores that sell software don't offer refunds or returns once the shrinkwrap is broken. If the EULA is a screen in the software installation, you've already voided your return policy before you've clicked a single "I Agree" button.

Cool idea

[TiBlaze]

Actually, I moderate and wrote a game where you can sell your soul (like a mock stock market)... had my heart rate pacing at about 200 BPM, But as my DSL modem is still fairly idle I think it's safe to assume that Selling your MMORPG soul, is not referring to my game where you can sell your soul (trade) in an online multi-player RPG :-) BTW: if anyone's interested the address is http://www.soulbay.net... if you get a chance take a look :-)

BFD...

[Black Parrot]

Who cares... you haven't been able to get a decent price for a Slashdot account since the karma cap went on.

Re:One enlightening legal approach...

[lawyamike]

That's not what is meant by "consideration." When the term is used in a legal sense, it refers not to the amount of attention that a party gives to the contract before consenting to be bound by its terms; rather, consideration is the object of the exchange. For example, if I purchase a sack of potatoes from you in exchange for a red scarf, there is consideration. If I state that I will give you a sack of potatoes in exchange for nothing -- or, alternatively, in exchange for your agreement that you would do something that you already were legally bound to do, like obey the law -- then there is no consideration and our agreement (such that it is) is not binding upon us.

Modern-Day Rumplestiltskins

[guttentag]

Image [sic] if you were buying a bed and you were asked to sign an agreement first. It stated that someone else actually would own your bed, could watch what you do in it, come over and use your bed when you aren't in it, and sell anything they found out about your activities in your bed, would you be comfortable buying that bed?

Kids these days just don't put as much effort into work as they used to. A lazy salesman attatches an EULA to your bed (or couch, or carpet, or the back seat of your car) stating that anything you make in their bed (or whatever) belongs to them. Back in the old days one had to spin straw into gold to snatch someone's child. You had to work at thievery...

IANAL...

[Lictor]

... but in perusing the comments attached to this story, I've seen quite a few people who are very confused about the nature of contract law.

Take a look at:

http://www.law.cornell.edu/topics/contracts.html

. . . and then try and figure out again why it is that society tolerates lawyers...

Re:Just get someone else to install it for you.

[Sparr0]

I just amend the EULAs before I agree to them. The companies never agree to the amended versions that I send them but hey, thats not my problem. They agreed to one version, I agreed to another version, neither version was agreed to by both of us. No contract.

Just Click No

[John Hasler]

"For now on, you might just want to read the EULA before you click 'accept'."

I've never accepted an EULA. I never will.

Where is the ruling?

[anthony_dipierro]

Did Blacksnow buy any product directly from Mythic? I could see a justification for a contract being accepted at that time. Also because Mythic offers an ongoing service, this is a different case from a normal EULA. Blacksnow cannot use the service without permission, so it's perfectly possible that they can be forced to agree to a contract in order to get permission to use that service.

Without seeing the ruling, I think it's premature to say that EULAs are enforcible.

Re:Just get someone else to install it for you.

[Medevo]

Most EULA's today have a clause that says something to this affect

"Any minor that agrees to this contract, and uses or installs software most obtain consent from a legal parent or guardian"

With this in hand, it is difficult to say 'but my kid installed it' as LEGALLY the kid cannot use or install it without your permission. Notwithstanding this a good company lawyer could say that a reasonable parent would monitor the programs that a child installs on your computers.

This is sure an issue that will feed the lawyers for a while

Medevo

They missed the forest for the trees

[RelliK]

The aricle's author(s) complain that you now have to read an agreement before agreeing to it. Well, no shit einstein! That has always been the case, so this ruling adds nothing new in this regard. What is more interesting is that the EULA was upheld as a whole.

The article doesn't make it clear whether it was the "license" for the service or the actual software that was upheld. The difference is important. I never played whatever game Mythic was producing, but I do know that if you play Diablo, you need to agree to the terms of use of Battle.net separately, if you choose to use it.

Having the terms of use of an online service upheld is reasonable since you have the ability to read the agreement and agree to it prior to using/subscribing to the service, or disagree with it and choose not to use it.

The same is not true for shrink-wrap "licenses". You cannot read the agreement prior to buying the software. By opening the box and installing the software you automatically agree to the "license"... oh, but to see the "license" you need to open the box and install the software! Now, supposedly if you disagree, you can take the software back to the store and get a refund -- but we all know how well that works... So, in effect, you are coerced into accepting whatever terms the software vendor feels like putting in the "license".

The courts have traditionally been sceptical when it comes to enforcing the so-called EULAs. The two supporting cases that I know of are Step-Saver v. Wyse Technology and ARS v. Software Link. There is, to my knowledge, only one case where EULA was upheld outright, "provided that its terms are reasonable" -- ProCD v. Zeidenberg. Interestingly though, that case involved not software but a telephone book on CD. Had the court not held the EULA enforcible, anyone would be free to copy the CD, since, according to the US copyright law, public data (such as names and telephone numbers) cannot be copyrighted.

Re:They missed the forest for the trees

[paranoid.android]

Mythic produced the game Dark Age of Camelot. There are actually 2 EULAs: one when you install the game, and another when you connect to the server to play.

Re:FUD and loathing in Las Vegas.

[mcoppock2]

Where the hell do you people shop? ... Every large chain store shrugs and takes it back without a question.

Where the hell do you shop?. I work for Target Corp., and we do NOT accept returns on software (also CDs and DVDs) that have been opened. Period. Sure, if its damaged, we'll give you a new one. But if you simply don't want it, you're SOL. Once you break that seal, you're screwed. I suspect other large retailers have adopted similar policies, although I'm not sure. Anybody else know?

sounds like TOS not EULA

[eddeye]

>Mythic maintained that (as per their EULA) they owned their virtual world and all property in that world.

Without details of the actual court ruling I can't be sure, but this doesn't sound so unreasonable. The virtual world is being hosted by Mythic's servers, right? Claiming ownership of data residing on their own servers is not so far-fetched. If they want to rent out time and virtual 'property' as part of the Terms of Service for connecting to their servers, that's their prerogative. After all, running those servers does cost Mythic resources. If you want to use their servers, you agree to their terms; otherwise, you play offline, on competing servers, or not at all. It sounds like a Terms of Service issue, not a EULA one.

All this is *very* different from sanctioning EULAs in general. In most situations, you're not connecting to or storing data on the vendor's server. I could not imagine Microsoft laying a successful legal claim to all the Word documents ever generated by Microsoft Office.

Likewise, I can't see this decision being extended to cover every EULA term ever devised. It seems like a very circumscribed case dealing with a very specific issue: who owns the data on Mythic's servers? I suspect even if Mythic's EULA never mentioned ownership of virtual property, the court would still have ruled in Mythic's favor.

Of course this is all just guesswork on my part. IANAL.

Copyright is getting too powerful

[smiff]

An End User License Agreement effectively grants copyright holders rights the congress has not bestowed upon them.

This has profound implications for all consumer goods. Imagine if Ford used an EULA for their on-board computers. If you don't agree, you can keep the car, but the software (and your ability to use the car) will be disabled.

The makers of a SmartFridge can claim the right to keep track of anything you put in your refridgerator.

Copyright holders can claim that anything you do with their software belongs to them. You use MythicWord to write a your doctoral disertation, and Mythic owns the copyright. This is exactly the precedent the court has supported. You develop a character using Mythic's game, and they own your work.

Congress has the power to grant copyrights. Aside from some constantly expanding experiation date, are their any limits on those rights?

Re:Just get someone else to install it for you.

[Genom]

With this in hand, it is difficult to say 'but my kid installed it' as LEGALLY the kid cannot use or install it without your permission. Notwithstanding this a good company lawyer could say that a reasonable parent would monitor the programs that a child installs on your computers.

Interesting...but if the kid can't be legally bound by the EULA to begin with, isn't it reasonable to assume that he/she/it can't be bound by the clause of the EULA that says they need a parent/guardian's permission?

You agreed to it, so abide by it

[alanjstr]

I don't see what the problem is. You did accept the EULA, whether you read it or not. If the EULA prohibits the selling of game items for real cash, then don't do it. We're not talking about items not listed in the EULA, or an EULA you don't see until you've already installed the product.

caveat emptor

Re:You agreed to it, so abide by it

[ProfMoriarty]

Good thing /. doesn't have a EULA ... then I couldn't be able to sell my account to the highest bidder ...

As my sig states (at time of posting):

FOR SALE: 1 slighty-used Slashdot account, Karma ~= 50, metamoderator privleges ... http://cgi.ebay.com/ws/eBayI

Re:You agreed to it, so abide by it

[radja]

1) a EULA is a contract of sorts.
2) a contract isn't valid if all signers arent in a sound state of mind (or whatever that's called in english)
3) keep a bottle of scotch handy. drink before accepting any EULA.

//rdj

It's OK

[peterdaly]

I always have someone else click "accept" for me anyway. That way I don't have to agree to the terms. Shared machines are even better, chances are you don't even know the person who clicked accept.

I am only half joking.

-Pete

Public law trumps private contracts.

[Erris]

The scare here is that M$ or others can violate your rights by contract. This is no more the case than you can sell yourself into slavery. Anyone dumb enough to offer you that kind of a deal deserves to be burnt, and will be. You might have your property abused by agreement, but there are limits to that.

Some of the dumber EULA are sure to be thrown out. Is anyone really going to enforce the "you can't say bad things about M$ with front page" term? Good freaking luck. They might be able to take away that horrible program from you but they can't keep you from telling the world how much they suck.

Privacy is a real concern. The XP EULA grant's M$ the ability to search your computer. You had better believe they already do and will continue to do it. They even changed up their hotmail junk so they could spam you all the way to China. Kazza's gonna sell your cycles to Iraq for wepons development, well I don't think so.

These are all violations of your property and patience, but God help them if they actually break things in a way that lawers can understand. The waste M$ inflicts is huge, some starving lawyer is just waiting to pounce on it. Then poof, the proven illegal monopoly is going to actually pay.

My contracts with M$hit expired a long time ago and I'm much happier for it. You see freedom from all these abuses is closer than you think. Do something good for yourself and dump that privacy invading, insecure,unstable, advert laden junk. The power ends when you don't need it.

Re:Read the EULA...

[John Hasler]

"Most users in this world are tied to a certain operating system (due to the simple lack of equally user-friendly alternatives), and software that comes bundled with it."

They may prefer it, but they aren't "tied" to it. They are free to learn to use one of the alternatives (and this is the first I've seen someone label the Mac "less user friendly").

"Many users are also tied to specific software that they use at work."

Then it is the employer that is bound by the EULA, not the individual.

"If I like Quake, but not the EULA that id software dishes out, I'd probably sign up and play, for the simple reason..."

...that you don't dislike the EULA enough to give up Quake to avoid it. Thus, you _chose_ to accept the EULA.

"Just what purpose does reading the EULA serve,..."

It tells you what you are getting into, should you choose to accept it.

"...when pressing the "I Decline" button is simply not an alternative?"

There is always an alternative. You aren't going to starve to death or die of exposure just because you choose not to use some particular piece of software.

"The root of the problem here is that every single piece of software is a little monopoly..."

None of the software on my computer is a monopoly of any kind.

"You'll usually be able to find two boxes of cereal with similar taste, manufactured by two different corporations."

Many people say otherwise. They insist that there is absolutely no acceptable substitute for the Exploding CatHead(TM) cereal they saw on the morning cartoons. Most of these people are under 10 years old. Sometimes I suspect that most computer users are of a similar mental age.

Please post EULAs

[1010011010]

Would someone please post the EULAs for Windows 98, 98SE 2000, XP, the service packs for those OSes, for Office 2000 and XP, and their service packs, and SQL Server 7 and 2000 and their service packs, and for Exchange 5.5 and 2000, and their service packs? I don't have them handy. This might be a great way to alter my next year's budget, which I'm making out now. s/Microsoft/Free Software/, if you get my drift.

It would be even handier if someone could point out the heinous sections of each EULA.

Re:Please post EULAs

[Anonymous Brave Guy]

We'd love to, but unfortunately, they're copyrighted, so you have to buy the software in order to read them...

Minor prediction...

[RyanFenton]

If EULA enforcement and reinforcement in the courts becomes widespread, we will see a rash of programs devoted to automatically eliminating and otherwise blocking EULA agreements from the user's point of view.

If they're going to take that many rights anyway, they may just as well have to do it completely against the user's will. That, and over the course of thousands of installations, it will probably save days of computer time per user over a lifetime.

:^)

Ryan Fenton

RTFEULA

[BreakWindows]

For now on, you might just want to read the EULA before you click 'accept'.

What is this, the 5000th time I've seen that line in a Slashdot article? Maybe people should start paying attention. RTFEULA. If you don't agree with it, don't install it, and write to the company telling them why (and, as you are legally allowed in the US, demand a refund. No product can be forced on you). Look for an alternative with a license you can agree with. It isn't too tough, and it's the only way to make a point to these companies. Using it anyway doesn't work, bitching on Slashdot doesn't work...a large number of persons telling them they refuse to comply with stupid terms and won't buy it will work.

Interesting Effect on Business Software

[Bookwyrm]

Does that mean that if EULAs are 100% enforceable, that every time a system administrator installs a piece of software with a EULA, the corporate lawyer has to be there to review the EULA to confirm that the EULA is safe for the company to agree to?

Could a system administrator even install the software if she/he was not an officer of the company or otherwise authorized to enter the company into a legally binding contract? (i.e. if the EULA gave the software developer the right to inspect/use the system the company installed it on -- which might also have on it confidential data, customer records, trade secrets, etc.)

Re:Interesting Effect on Business Software

[1010011010]

If I was a bastard, I just might run EVERY software license past the legal team. All the installations. All the Service Packs. Everything. Add that to the "Total Cost of Ownership" of the software. Present the next year's budget with those costs in addition to the regular upgrades, etc., plus the cost for liability insurance ("EULA Insurance"). And present an alternate budget for a Free Software setup. That Peruvian guy was right, ya know. Free Software is better for the local economy.

Re:Interesting Effect on Business Software

[josh crawley]

How's that being a bastard? That's being an aware 'consumer' in a litigous socieity. It doesn't matter if one person consumes or a company consumes. However, EULA's can have really bad penalties on the company (MS using BSA police to bully through comps). You should already be sending licenses through the legal dept.

Course, that's a great foot-in-the-door for installations like debian or slackware. It's all open (bin and source). The only problem is the programming dept (if you have one). GPL'ed source is nasty in software-only corporations. I dont care what any other dick says, but no propeiritary software dept wants GPL infestation.

Simple solution!

[1010011010]

Simple solution: get a 14-year-old to click all the "accept" buttons. Minors cannot be bound by contracts!

Re:Simple solution!

[Bios_Hakr]

The agreement is to the END USER, not to the BUTON CLICKER. Even if my 6yo daughter clicks YES, as soon as I fire up WordXP, I am bound. Or am I?

Re:Simple solution!

[1010011010]

So random people in college computing labs, or public libraries, or internet cafes, etc. must not be bound by the EULAs, since they never "accepted" any license, contract, agreement, etc.

Re:EULAs are important

[John Hasler]

"But this EULA business is pretty important - after all, isn't the GPL just a EULA, in a certain sense?"

No. The GPL is not a User License Agreement at all. From the GPL:

Activities other than copying, distribution
and modification are not covered by this
License; they are outside its scope. The act
of running the Program is not restricted,...

And

You are not required to accept this
License,since you have not signed it.

Thus as long as you only _use_ a GPLd program the GPL does not apply to you at all.

"1. keeping the GPL even more court-defensible..."

No. The GPL is a copyright license. It grants you rights that copyright law reserves for the copyright owner, and does not require you to give up any rights that you would have in its absence.
EULAs are civil contracts. They grant you no rights that you wouldn't have in their absence, and require you to give up rights that you otherwise would have.

Recent support fun...

[Anonymous Coward]

I tried getting support for my laptop and they said that I couldn't get any help unless I ran the OS that came with it, namely, Windows XP. So, how valid is that EULA when I HAVE to click "I accept" or effectively invalidate my warranty?

MS Design Gallery Live EULA

[1010011010]

http://dgl.microsoft.com/mgo1en/eula.asp

• Easy Acceptance!
• By installing, copying, downloading, accessing or otherwise using the Software, You agree to be bound by the terms of this EULA. If You do not agree to the terms of this EULA, Licensor is unwilling to license the Software. In such event, You may not install, copy, download or otherwise use the Software.
• Bundling!
• NOTE: IF YOU DO NOT HAVE A VALID LICENSE FOR ONE OF THE FOLLOWING PRODUCTS (EACH, A "SOFTWARE PRODUCT"), YOU ARE NOT AUTHORIZED TO INSTALL, COPY OR OTHERWISE USE THE SOFTWARE: Microsoft Office 4.2, 95 and subsequent versions, Microsoft Word 6, 97 and subsequent versions, Microsoft Excel 97 and subsequent versions, Microsoft PowerPoint 97 and subsequent versions, Microsoft Access 97 and subsequent versions., Microsoft Outlook 2000 and subsequent versions, Microsoft Publisher 2.0, 3.0, 97 and subsequent versions, Microsoft FrontPage 97 and subsequent versions, Microsoft Home Publishing 99 and subsequent versions, Microsoft PhotoDraw 2000 and subsequent versions, Microsoft Works versions 3, 4, 4.5 and 2000, Microsoft Picture It!, Microsoft Greetings Workshop, and Microsoft Office : Mac.
• Censorship and Thought Control!
• You may not use or distribute any of the Software that include representations of identifiable individuals, governments, logos, initials, emblems, trademarks, or entities for any commercial purposes or to express or imply any endorsement or association with any product, service, entity, or activity.
• More censorship!
• You may not create obscene or scandalous works, as defined by federal law at the time the work is created, using the Software.
• Yes, O Evil Overlord!
• You must indemnify, hold harmless, and defend Microsoft from and against any claims or lawsuits, including attorneys' fees, that arise from or result from the use or distribution of Software as modified by You.

Re:Just get someone else to install it for you.

[wo1verin3]

in canada parents are not responsible for a contract regarding a non necessity (ie food, shelter, clothing).

If the kid makes a contract to obtain a necessity (purchases a pizza by delivery), parents are responsible.

If the kid agrees to anything regarding a non necessity (ie video game) parents are not responsible.

The idea being parents have to provide the life necessities, if they are not and the kid has to go out on his own, the parents aren't meeting obligations.

The perfect way to steal GPL code

[Sabalon]

Oh...I didn't read the license - it doesn't apply.

Re:Read the EULA...

[John Hasler]

"I assume you are talking about free software: even in this case, it is a monopoly. For example, the FSF can release the next version of, say, Emacs under a newer GPL license. If you do not agree with the terms of this license, you can only a) use an older version of Emacs or b) accept the license anyway."

Or c) Modify the older version to implement the features of the newer version (and distribute the result under the old license if I wish) or d) acquire a modified older version from someone else. Ever heard of Xemacs?

"The situation is exactly the same as a non-free product, except that you don't expect the FSF to distribute Emacs under a truly disgusting license."

No it isn't. A non-free product cannot be forked.
[ Reply to This | Parent ]

DCOM95 EULA

[1010011010]

http://www.microsoft.com/com/dcom/dcom95/eula.asp

• Huh? -- no Hello World allowed!
• Distribution. Microsoft grants you a non-exclusive, royalty-free right to reproduce and distribute an unlimited number of copies of the SOFTWARE PRODUCT, provided that you: (a) distribute the SOFTWARE PRODUCT in object code form only as part of a software product created by you that runs on the Windows 95 platform, and that adds significant and primary value to the SOFTWARE PRODUCT (the "Licensed Product");
• These clothes are beautiful, and don't you forget it!
• Performance or Benchmark Testing. You may not disclose the results of any benchmark test of the SOFTWARE PRODUCT to any third party without Microsoft's prior written approval.

This is a Service EULA, not a Software EULA.

[Blackwulf]

What this case is about is selling Mythic's intellectual property on eBay. Actually, no, they're selling an item on Mythic's database on eBay. That's the programmers term for it. They are selling the right to that symbolic link on Mythic's server. The SERVICE EULA forbids this.

It just so happens that the software cannot be run without the service. Much like how your telephone can't be used without the telephone service. (House phones, not cell phones with the nifty games.)

I fully believe that MMORPG developers have the right to not allow links on their database to be sold on eBay. Now, if the developer gets ROYALTIES for each link sold, then that would be okay. But I don't see any of these people paying Mythic royalties for selling Mythic's property...

Re:This is a Service EULA, not a Software EULA.

[oyenstikker]

So sell a very expensive piece of paper. That just happens to have the password written on it.

EULA FAQ (MSFT)

[1010011010]

http://www.microsoft.com/education/license/eula.as p

• Software is copied when it is installed on the hard disk of a computer or when it is loaded in the computer's temporary memory (RAM). Copying software without the permission of the author is "copyright infringement," for which the law imposes penalties. For questions about local copyright laws, contact the Business Software Alliance (BSA)
• Read those Service Pack EULAs!
• 14. When I upgrade a Microsoft product, does my EULA for that product change? Yes, the EULA included with the upgrade version sets forth the license rights for both the original product and the upgrade.

Re:EULA FAQ (MSFT)

[Arandir]

Software is copied when it is installed on the hard disk of a computer or when it is loaded in the computer's temporary memory (RAM). Copying software without the permission of the author is "copyright infringement,"

Completely contrary to copyright law. To quote from 17 USC 117:

"It is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided...that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine".

Gee, the law says one thing, and Microsoft says another. No wonder they recommend contacting the BSA as opposed to a qualified and unbiased attorney for clarification.

Re:EULA FAQ (MSFT)

[RickHunter]

Heh. Not that the law matters much when a BSA goon squad comes knocking at your door.

Microsoft .NET Framework Redistributable EULA

[1010011010]

http://msdn.microsoft.com/library/default.asp?url= / ibrary/en-us/dnnetdep/html/redisteula.asp

• Forget about server-side apps
• NOTE: IF YOU DO NOT HAVE A VALID EULA FOR ANY "OS PRODUCT" (MICROSOFT WINDOWS 98, WINDOWS ME, WINDOWS NT 4.0 (DESKTOP EDITION), WINDOWS 2000 OPERATING SYSTEM, WINDOWS XP PROFESSIONAL AND/OR WINDOWS XP HOME EDITION), YOU ARE NOT AUTHORIZED TO INSTALL, COPY OR OTHERWISE USE THE OS COMPONENTS AND YOU HAVE NO RIGHTS UNDER THIS SUPPLEMENTAL EULA.
• EULA mutation
• To the extent that any terms in this Supplemental EULA conflict with terms in the applicable OS Product EULA, the terms of this Supplemental EULA control solely with respect to the OS Components.
• "Trust Us"
• You may not disclose the results of any benchmark test of the .NET Framework component of the OS Components to any third party without Microsoft's prior written approval.
• If MSFT support fucks you over, it's your fault.
• The entire risk arising out of use or performance of the OS Components AND ANY SUPPORT SERVICES remains with you.
• You downloaded it for free -- we don't owe you crap.
• THE ENTIRE LIABILITY OF MICROSOFT AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS SUPPLEMENTAL EULA AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE OS COMPONENTS OR U.S.$5.00.

MSNBC INTERACTIVE NEWS ALERT END-USER LICENSE AGRE

[1010011010]

http://www.msnbc.com/tools/newsalert/naeula.asp

• No wine for you
• Installation and Use. MSNBC Interactive grants you the right to install and use copies of the SOFTWARE PRODUCT on your computers running validly licensed copies of the operating system for which the SOFTWARE PRODUCT was designed [e.g., Microsoft Windows(r) 95; Microsoft Windows NT(r), Microsoft Windows 3.x, Macintosh, etc.].

Re:Just get someone else to install it for you.

[bafu]

The courts would have to be crazier than I've given them credit for. That would mean binding the parents to the unsupervised judgement of someone the courts believe cannot exercise legally-binding judgement. The only justification for this would apparently be to punish them for not having properly performed the hitherto unknown parental reposnibility of not allowing a child to install software. Sounds weird. Not that I wouldn't put it past a lawyer to try it, of course... :-P

Re:EULAs are important

[RelliK]

But this EULA business is pretty important - after all, isn't the GPL just a EULA, in a certain sense?

No it's not. The so-called EULAs require you to accept their terms as a condition of using the software. They start off with the presumption that you have no rights whatsoever and they "grant" you the right to use the software on very restrictive conditions. That of course is nonsense -- you have the right to use the software by the virtue of having bought a copy of it, so in reality, these EULAs take away the rights you normally have.

GPL does no such thing. You are not required to agree to anything if you want to use the software. GPL starts off with the (correct) presumption that you already have this right. However, you do not normally have the right to distribute the software if you do not hold the copyright on it. GPL grants you this right, provided that you agree to its conditions.

This decision will have no effect on the enforcibility of the GPL. The so-called EULAs, however, have always been on a shaky legal ground. It remains to be seen what effect this decision will have.

A question about Pre-Installed software

[Seawolf359]

I had never thought of it before but when a person buys a computer from Best Buy, I use them cause I use to work there, they take the computer home turn it on, and then they can either agree or disagree to the EULA which is the first thing they see. NOW in that case they decide but what if someone decided for them. More specificly what about the free setup that Best Buy offers when you purchase a computer. I personal setup hundreds of computers and always blazed right past the EULA cause I was in a hurry. No where on any of Best Buy's paperwork does it say that Best Buy is going to agree to the EULA for you or tell you that they are doing so. My question is does the EULA still apply to the customer that purchased the machine? Now that I think about it, it is kind of like someone forging a signature and more importantly if the customer finds out about the EULA from a someone, would Best Buy be obligated to take the machine back if the person didn't agree? I'm not a lawyer so if anyone has any idea I am curious.

Re:A question about Pre-Installed software

[arkanes]

It's probably illegal for Best Buy to set computers up in this fashion - you, as an agent for Best Buy are agreeing with EULAs, at least some of which include clauses that you can't redistribute your rights. At the least, it's illegal for the consumer to use your product after they set it up (assuming EULA's have force)

Time to get rid of EULAs

[Arandir]

It's time to get rid of EULAs. They are counter to five thousand years of contract law. They are counter to one thousand years of common law. They are counter to both the Commercial Code and Copyright Law (in the US).

EULAs are based on the unwarranted proposition that the author of the software has the exclusive right to use and install the software. This is not true. According to 17 USC 117, the owner of the copy of the software has the right to utilize the software, including adapting it in such a way as to be able to utilize it (e.i. installation). Since the user has the right to use the software, such use cannot be taken as a form of assent to be bound by the license.

But enough of that. What really bugs me is why these turkeys even need EULAs. Pretend you're a proprietary developer wanting to restrict your software. What do you want to restrict? Let's see... No unauthorized copying. No unauthorized distribution. No unauthorized derivative works. In short, just the same stuff a proprietary novelist wants. So why a EULA? Wouldn't a simple copyright statement be just as good? In just about every EULA I've seen (discounting those monstrosities from Microsoft) the only thing they restrict are copying, distribution and modification.

Audio CDs and DVDs don't have EULAs. But if software EULAs get legitimized, it's only a matter of time before the MPAA and RIAA (those scum) get on the gravy train. We don't want that. We don't want to watch a movie in a theater only to see a EULA two hours later saying that be watching the movie we have agreed to post no negative reviews...

If you're a proprietary developer, stop using End User License Agreements. Start using simple copyright statements. You won't lose anything. Your users will thank you.

Re:Missing a big opportunity

[harlows_monkeys]

MMORPG companies should build the ability to sell a character into the game! Take a little off the top and make an auction house in-game for characters and items.

The problem with this is that it ruins that game. A large number of people play the game to get away from the real world. They want a game world where what they can acquire and accomplish is determined strictly by what they do in the game.

When someone can come in and pay a few hundred dollars real money to get items, it destroys that independence of the game from the real world.

Re:Software companies should be careful...

[Arandir]

Okay, if "EULAs are contracts at the moment they are accepted", then where is the consideration? A contract is not valid without consideration.

I've already paid for the software (if it needs to be paid for), and I already have the right to use the software (according to copyright law). Just what is it that the company is giving me and what am I agreeing to give to them?

Of course, in Mythic's case, there is consideration. You don't have the right to use their server, so that is something you gain. But in the case of regular everyday EULAs, they're bogus.

So by logical extension

[i1984]

This could be very relevant if remote hosting or remote computing is ever going to grow. Apple got some bad publicity a while back after they claimed ownership of all the content in people's iDisks (or whatever they're called) -- but in that case Apple backed down. What if they hadn't?

Here are some hypothetical situations that seem analagous to the situation with Mythic, that with this precedent all seem a little bit scary...

Consider a cellular phone company. Would my cell phone's voicemail, being hosted on the cellular provider's equipment, be reasonably considered the cellular provider's property? What if a piece of highly confidential data were left there, say an idea for a new invention. Can the cell phone company claim they own that data and then do with it what they like?

Ok, suppose I keep track of my finances with an online service and I enter the data directly in to their remote server -- the data never lives on my computer; it's remote only. Now if the company hosting that service decides to toss a boilerplate "we own everything" clause in to the click-through on the login screen, do they have a right to my financial data? So financial data is too inflammatory...how about an online database of all my books? I don't see that as significantly different from the Mythic case.

Or suppose that a large software company offered remote networked applications via a rental revenue model. The software saves its documents on the remote server. Later I want to retrieve my important documents, but in the meantime the software company has claimed that it owns my documents, based on a clause tucked away in the user license.

Later I want to create a web page. So I upload my web page to a remote hosting site, which of course claims ownership of anythying on its servers. (You'd start to think I'd learn by now!) Later I decide I want to change or remove some information on the site, but the hosting company refuses to give me access claiming I have no right to mess with their data...and then they start selling this content as their own!

If this kind of stuff is not illegal, would you necessarily trust a company not to abuse their rights in this way? Remember that in the last ten or fifteen years there has been a growing consensus in the American business world that anything that can be done to increase profits in the short term necessarily should be done. Glance towards Enron if you believe a company is always going to make the "good" forward thinking choice...

Perhaps we should start lobbying our state legislatures to enact laws to preemptively clear this sort of thing up. Even requiring companies to abide by their agreements as stated the first time a user signs up for a service -- irrespective of how those agreements are initially set up -- would be a positive move. That would make it harder to get blindsided by a change in the user agreement after a person has started using the service (in the syle of Yahoo's "you want Spam" change). And as long as I've got a wish list going, the agreements should be prefaced with a readable easy to understand synopsis of the actual agreement.

But I doubt the business lobby would ever let anything so simple and sensible sneak through a senate chamber someplace...

Re:So by logical extension

[Synn]

By logical extension I'd suppose it'd go more like this:

1> Remote hosting company notifies you that they own it before you use them, they own it.
2> Remote hosting company doesn't notify you... you should own it.

It's about the EULA. If your cell phone has a EULA that states, "we 0wnj y00 vmail" then they probably own it.

I really don't have a problem with that because I can simply not use remote storage services. I DO have a problem with EULAs that try to say they own stuff on my property just because I bought their product.

Phone company says in a EULA that they own vmail hosted on their servers? Okay, I can see that. But say an answering machine company says in a EULA that they own the messages recorded on the machine I bought? I don't think so.

Physical products don't work that way, and I really don't see how software makers who write these silly EULAs that you sometimes see think they're so special.

this is good for open source

[g4dget]

The best thing software vendors can do now is to keep EULAs really simple; otherwise, end users will distrust them. It also may strengthen EULAs associated with open source. Altogether, just like strict enforcements of copyrights, this is a win for open source.

Re:Just get someone else to install it for you.

[modecx]

Nah, the courts are that crazy. If a company (Tobacco and firearms manufactures to be specific here--not trying to beat around the bush) can be held responsible for the actions of an informed individual (ie: knows that guns kill, tobacco is a known carcinogen, other common sense bullshit, etc.), then I don't see it very far off for courts to make parents responsible for some minors' actions. I'm sure that many lawyers would jump at the idea--if it was monetairly rewarding enough for them.

Untill then, they'll volture over old ladies driving with hot coffee obtained from multi-billion dollar international conglomerates...

Re:Pretty soon...

[symbolic]

What are the chances that once reading the EULA becomes common knowledge, companies will work to make them more obfuscated, convoluted, and otherwise obscure? (does that horrible mess we call the IRS tax code ring a bell, anyone?) If anything, it will be a boon to the legal industry, as many bewildered end users will have to consult with their attorneys just to make sure they understand what it says.

Re:No Worries, Best Buy will accept it for you!

[symbolic]

Now that I think about it, this might be true for many OEMs that sell systems with pre-installed software.

Microsoft "Update" Eula prohibits .Net benchmarks

[seaan]

Microsoft has a new version of the "critical update file" (at least for Win2K systems). Buried halfway through the EULA text (in a box which can not be printed, cut-and-pasted, or expanded) is a clause that prohibits you from providing benchmarks on the .Net components without prior written permission from Microsoft.

For some reason, Microsoft thinks that using some software for updating Windows security holes provides enough value that you will forfeit your free speech rights (by not publishing .Net benchmarks). I'm pretty sure this clause would be thrown out in most courts (and it is related to the NAI anti-disparagement wording that drew a New York state law-suit).

Of course, the other thing I wonder is why Microsoft is so afraid of .Net benchmarks being made public?

Game Boxes

[aztektum]

If you think about it, some games have flaps for added advertising and others don't, so as we can so there's no standard packaging scheme. If the inside of the "flap" were regularly printed with a EULA and more games were packaged this way you'd have your chance to read it first with only a few games truly "losing" ad space.

"Just my $0.02"

have you read Slashdot's EULA?

[DrSkwid]

Slashdot's EULA

Here's an interesting snippet :

3. REGISTRATION OBLIGATIONS

If required by the site in question, each user must: (a) provide true, accurate, current and complete information on the Service's registration form (collectively, the "Registration Data") and (b) maintain and promptly update the Registration Data as necessary. If, after investigation, we have reasonable grounds to suspect that any user's information is untrue, inaccurate, not current or incomplete, we may suspend or terminate that user's account and prohibit any and all current or future use of the Services (or any portion thereof) by that user other than as expressly provided herein.

Re:FUD and loathing in Las Vegas.

[markmoss]

I work for Target Corp., and we do NOT accept returns on software (also CDs and DVDs) that have been opened. Period.

Then you should have your ass hauled before a judge every goddamned time someone cones in with an opened piece of software which says, "If you do not accept these terms, return the product for a full refund to the place you bought it."

Not quite correct - Target isn't responsible for that EULA. It's up to the software companies to see that there is a reasonable way to return the software. IANAL, but I'd think that, if you attempt to return the software and cannot get a refund, then the EULA is void. Write a letter to the head of the software company telling them so, registered mail...

This doesn't mean that you can violate copyright.

Finally, the Mythic case is different from the typical shrink-wrap EULA case in that the EULA concerns an ongoing service (data on their server). This makes some restrictions sound far more reasonable than they would be in a simple sale. Also, Mythic presented the EULA everytime the user logged in.

Some points

[Rogerborg]

From the court, we find that the owners of Blacksnow did their trading in game. Now, argue all you like about most people not reading the EULA, but professional traders have no excuse for not reading it.

As regarding whether they did or not, and whether they clicked through and agreed to it, remember that this is civil litigation. The burden of proof is not beyond all reasonable doubt, but rather balance of probabilities. In deciding what is fact, the court only has to consider the most likely scenario. And the most likely scenario is that Blacksnow (if not the players) did read (or should have read) and did agree to the EULA. If they didn't, then the burden is on them to show that.

Also note that the issue is about the actions that they chose to perform on the service, not what use they made of the software.

Given all this, it looks pretty clear cut that Mythic are right, and Blacksnow are wrong. My only problem with this is that it feels wrong. Effectively, Mythic are saying that they have complete control over everything that happens on their servers, and that they will be the final arbitrator on who did what - and more importantly, why they did it.

The reason that this last point is important is that from the point of view of Mythic, what's the difference between these actions?

• I drop a Sword of Boinking because I agreed in an email conversation with Blacksnow that I would do so in return for money.
• I drop a Sword of Boinking because I agreed in an email conversation with another player that I would do so in return for money.
• I drop a Sword of Boinking because I agreed in an email conversation with another player that I would do so in return for them dropping an in game item.
• I drop a Sword of Boinking because I agreed in an email conversation with another player that I would do so in return for beer.
• I drop a Sword of Boinking because I agreed in a verbal conversation with my son that I would do so in return for him taking out the trash.
• I drop a Sword of Boinking because I hit the wrong key.
• I drop a Sword of Boinking because I'm drunk.

The answer is that from Mythic's point of view, there is no difference. The action that Mythic sees is: Player X wants to drop a Sword of Boinking.

Now, Mythic get to decide what the motivation was behind this action, and to punish me or terminate my account without possibility of appeal. In the case of Blacksnow, it looks clear cut, but that's because Blacksnow have been decent enough to be above board about what they have been doing. But now the precedent is set that Mythic and other online services can charge money to access content that they control and can deny access to at any time for any reason that they like, and your option is to suck it up or... actually, there is no "or".

Is that just? Well, actually yes, because it's Mythic's service, they can set the rules, and nobody is forced to play it. Is it enforcable? Demonstrably, yes. Does this kind of control freakery damage online games? Not really, it's rampant on EQ (down to them enforcing their own particular view on what's an appropriate "fantasy genre but non trademarked" name), but that's still going strong.

But does it feel right? Hell, no. Is there anything that we can do about it? Probably not. I wouldn't play such a horribly restrictive game in the first place, and so I don't even have the meagre threat of withholding my money, but the plain old fact is that most players simply don't know and don't care (enough) about it to leave. So, by the Great and Powerful Laws of Capitalism, Mythic is in the right here, and will continue to remain so until the money stops flowing in.

Re:Some points

[swordgeek]

Two more points.

1) While I don't entirely agree with your opinions, the facts you've hit on here are 100% on the money. Well done!

2) I want a sword of boinking!!!

Re:Some points

[Rogerborg]

• can they control my time to get/find/make items? Can I sell that time?

Very good point. And how do they decide (in game!) that you are putting in that time because you want to, or because... no, wait, the second option is also "because you want to", only with the slight addition of "and you get paid".

Basically though, I can't understand what their problem is with item selling, beyond control freakery and a vague feeling that if there's money being made off of their game, they should be making it.

Re:One enlightening legal approach...

[markmoss]

lawyamike: If you really do have legal expertise, could you please explain what our recourses are when (1) the EULA cannot be read without opening the package, and (2) the store won't give refunds if the package was opened. (In the past, the EULA was generally printed on a sealed envelope containing the disks, but now quite often it is not printed at all, you first see it when you start installation.) It would seem to me that this voids the EULA, but just how do you handle it legally?

I'm thinking you could send out a registered letter to the vendor, saying something like: "I do not accept the EULA on XXXX, purchased xx/xx/xxxx at (store name and address). I attempted to return the product to (store), but they refused to refund the purchase price. Therefore, I consider the EULA void, and until and unless you arrange for a full refund, I am free to use the product in accordance with copyright law and the fair use doctrine."

Corporate Officers only

[ab762]

IANAL, but my understanding is that I can't validly commit my employer, unless I am a corporate officer or acting under direction of one.

This means, for example, that if I issue a purchase order, in the course of my proper duties, it is valid -- and the bill will be paid.

If it is outside my duties, e.g. a complete set of backissues of Astounding, delivered to my home, the bill won't be paid, no contract binds my employer, and the seller sues my ass. And likely my employer fires me.

So, when I click the infamous Accept button, where are we? In a grey area. If the company doesn't like those terms, the argument that they are not a contract with the company is fairly solid. My expertise is not in matters of law, but of software. I am not a corporate officer. Thus I could not bind the company. But the company bought the software -- without seeing the click-through agreement.

Incidentally, for non-shrinkwrap software, it's not uncommon for the license to go through corporate legal. Often it takes weeks and several iterations. It's why companies are often in law suits -- and rarely let that fact bother them.

Re:maybe not totaly rigth place to ask, but close

[javatips]

And this is a good way to make the software co loose money.

The amount of money they give you is greater that the amount of money they got when they sold the box to the retailler.

If enough people do it, they the software co will loose a lot of money because of the EULA.

Re:Microsoft "Update" Eula prohibits .Net benchmar

[SuiteSisterMary]

This is pretty standard stuff. The thinking, or at least part of it, is that they don't want www.jimbobstech-o-rama.com running some half-assed benchmarks on a fucked-up install, and pimping those numbers out as 'representative.'

Re:Just get someone else to install it for you.

[praedor]

AND you still have to have the ability/right to negotiate the terms. A blind click-through or tear-through EULA contract without a means of negotiating terms is useless crap. Tear as you will, simply do as indicated by the previous poster and send in YOUR terms/changes to the EULA that YOU accept.

Re:Just get someone else to install it for you.

[praedor]

Hmmm. What games are you referring to? The games I play do not constantly harrass me into having to renegotiate the use terms. Those not-agreed-to but renegotiated via amendments and letter to the company terms only showed up during the initial install. Never ever do they show up again when I start the game.

Re:Just get someone else to install it for you.

[west]

The only justification for this would apparently be to punish them for not having properly performed the hitherto unknown parental reposnibility of not allowing a child to install software.

You are not installing software, you are approving a legal contract. You wouldn't expect your children to be allowed to sign an employment contract or a contract to buy a house.

Obviously the solution is to not allow software to be installed without the advice of a lawyer.

Re:Civil Disobedience

[Kredal]

Easy way around that.. DON'T INSTALL THE SOFTWARE! Just spread it around, open up the cab files and show off the pretty pictures, etc etc. You never got to the screen that says "By accepting this, you agree to give your first born son to Microsoft, etc, etc.." so you shouldn't be legally bound by it, right?

What about the writing on every Microsoft disc out there these days? "Do not make illegal copies of this disc" Can you claim that you made a backup copy (for legal purposes) and then accidentally left the back up copy and a sticky note with the CD-key out in a public park or something?

Shrug, IANAL.

Re:Pretty soon...

[gilroy]

Blockquoth the poster:

What are the chances that once reading the EULA becomes common knowledge, companies will work to make them more obfuscated, convoluted, and otherwise obscure?

More obfuscated, convoluted, and obscure than they are now? It gives me the shudders just thinking of such a thing! :)

Re:Running Windows? Linux?

[John Hasler]

"The compiler has an EULA."

The GNU C Compiler has no EULA. No Free Software does.

Re:Read the EULA...

[John Hasler]

"I'm only claiming that it is possible for free software to come with a EULA that you may not like."

By definition, an EULA restricts the rights of the end user. No Free Software license does so. Therefor Free Software does not come with an EULA at all.

EULAs

[WNight]

EULAs aren't binding. They can't be because they're after-sale restrictions. You can "sign" away because it's not a valid contract (you receive nothing for doing so - the use of the program doesn't count because you already paid for it.)

More importantly, requiring someone to pay you, or sign a contract in your benefit, before you let them use their property, or do something they're legally entitled to do, is extortion. If anyone had to cash to do it, this would be a fairly easy way to fight EULAs.

What is so hard for you fascists to understand? You sell something, you lose control over it.

If this wasn't the case, do you think companies like MS would waste money bribing politicians (oh, sorry, donating to election funds) to get the UCITA passed? The main feature of that law is that EULAs will be enforceable.

Re:Just get someone else to install it for you.

[RasputinAXP]

Difference being, of course, that with Camelot you MUST agree to the EULA to play. Judge ruled that despite one of the Plaintiffs not having installed or paid for the account, he agreed to the EULA to play it, thus he's bound by the arbitration decision.

Re:FUD and loathing in Las Vegas.

[arkanes]

It's true that target isn't responsible - software companies should require that retail stores accept returns to market thier product - MS is the most famous for it - they've consistently refused to honor windows refunds (because they never got any money for it), and the OEMs won't either (because they aren't party to the EULA) and there seems to be no recourse. As I said in a previous post, were I a judge, I'd consider this pretry conclusive evidence that the EULA was entered into in bad faith.

At Will Employment?

[teamhasnoi]

Doesn't all this boil down to at-will employment?

You know, we hire you to sit here and make value for us (items, interaction with others, ect.) adding value to our game world, while you PAY for the privilege to do so. (Horrible job prospect, IMHO)

It's just like work. You can't take the logo/software/widget you just made and hawk it yourself; it belongs to the company whose tools you used to make it.

The difference is that you get paid $$$ for working at your job; you get paid in 'fun' working at your MMPORG.

Blacksnow brought it on themselves

[coljac]

Blacksnow are not very ethical people and are on the record as exploiters of various MMORPGs. They've tried to bribe engineers at the game companies to turn a blind eye to their profiteering from bugs, exploits, and general destruction of the game balance.

When faced with this evidence, how could a judge be sympathetic to them?

Fighting "no refunds" with chargebacks

[Frank T. Lofaro Jr.]

Buy by credit card.

If they won't give you a refund, do a chargeback.

Re:vi! vi! vi!

[HiThere]

Shouldn't that be vim!
I believe that vi was property of ... was it DEC? => Compaq => whatever that things going to be called.
Or it could be that vi was property of AT&T. But it was *somebody's* proprietary software. vim is the free version.

Does the agreement still apply after an uninstall?

[bons]

What I can't figure out (and what frightens me) is that these agreements do not seem to indicate that they only exist for as long as the software is installed. Does Kaaza still have legal rights to your CPU after you uninstall? How far does your permission go?

Ahem

[Nyarly]

Now, IANAL, but skimming the judgement presented in the article, all I can see is that the court has affirmed the defendant's demand of a binding arbitration. The demand was based on a clause in the EULA, but as far as I can tell, BlackSnow hasn't lost, yet.

On the other hand, does the judge's admitting that Mythic is owed an arbitration amount to blessing the contractual status of the EULA? Or is that still in question?

hmmm

[geekoid]

If you lived in a apartment and wrote a book, would the owner of the apartment building be able to claim rights to your book? You did it on his property.
You pay rent you say? so, you pay a monthy fee to use the space on there servers.

Re:Microsoft "Update" Eula prohibits .Net benchmar

[seaan]

This is pretty standard stuff.

Actually, the limiting of benchmarks is a disease only common in the database industry. To the best of my recollection, this practice started right around the time Oracle put a "cheat" mode in to speed up their TPC/A benchmarks.

The point is that these clauses were pretty much only used with a small subset of customers, who purchased large expensive databases with extensive and highly negotiated contracts. Even then this was at best an unethical practice, and was most likely an illegal limitation. Later Microsoft started using it on shrink wrapped copies of SQL Server. Now Microsoft is trying to limit normal consumers, and even worse they are doing it as a stealth attack!

The reason it is most likely illegal goes to the heart of the EULA debate. In the US we have certain default conclusions in a contract, often codified as "Commercial Codes". Formal contracts can change these defaults, but the changes have to be reasonable. Typically it is much harder to change mass consumer purchases. A classic example is when a book publisher tried using a EULA equivalent preventing the purchaser from reselling the book. The courts ruled it an illegal contract since the purchaser was not given anything of value in return for giving up the right of first sale.

The biggest problem with a EULA, is that companies are trying to change a consumer purchase into a negotiated contract. Except of course that the consumer did not actually have a chance to negotiate, usually gets nothing in return, and even than the company usually reserves the right to change the EULA anytime they want to. It makes a mockery of contract law!

So the key to my post was that Microsoft is trying to limit my rights by applying a contract to a normal consumer purchase, and limit those rights without giving me a sufficient return. The mere right to run a Windows patch updating program is not sufficient compensation for me to give up the right of publishing benchmarks on an unrelated program!

Two more comments. First UTICA, the reason why people are so upset with UTICA is because it was a one-sided attempt by the software industry to change the contractual defaults all in their favor, and perhaps even making some previously illegal EULA's either legal, or even unneeded.

Second, there is little-to-no justification for an anti-benchmark clause. Yes, I have no doubt there are some poorly run benchmarks, but why should a company have prior restraint to protect against this? If a person publishes a poor benchmark, expose them and they have no credibility.

Finally, lets drive the consumer vs. negotiated point home. Consider that you buy a book, and as a condition of selling you the book I dictate that you could not publish a review of my book unless I verify your review and gave you prior written permission. I would explain that I want to make sure you have all your facts correct (because previous reviewers misquoted me). That "no review clause" would be illegal, unless you had some special relationship with me: like this was a custom made book with a specially negotiated contract, or I was giving you a special advance copy for free. Without that special relationship, copyright law covers the conditions of the book sale; and copyright law does not give me the rights to restrict your publishing of a review of my book.

Re:Just get someone else to install it for you.

[agdv]

"there is a red lable stuck across the case at the area where you can open it."

If it's a CD, many times you can open the other end (the hinges) without tearing the label. I've done that before...

UCITA is the only reason the arbration holds

[ebyrob]

Or am I the only person who read the rulling at the end of the article...

Of course, I didn't see much in the aticle talking about exactly what was/wasn't at issue in the case.

If the issue is: Should the "law" stop people from selling this game items, that's one thing.

If the issue is: Does Mythic have the right to erase player data on their servers, it's quite another.