Slashdot Mirror
Blizzard Stomps Bnetd in DMCA Case
base3 writes "The EFF reported that the Vivendi/Blizzard vs. the good guys case has been decided, and it doesn't look good. Some highlights from the ruling
are: A clickthrough EULA isn't unconscionable (and thus enforceable); Fair Use rights can be waived in a EULA; First Sale rights (!) can be waived in a EULA; The DMCA's interoperability provisions are not a defense. If this ruling is allowed to stand, it will allow one-sided EULAs to force the waiver of the rights of First Sale and Fair Use. This, combined with the Supreme Court's recent assent to perpetual copyright, a few decades at a time, will destroy any semblance of balance in U.S. copyright law. Fortunately, the EFF plans to appeal the ruling."
Better?
If you want it to get better, you have to do something about it, not just sit on your ass and say "it will probably get even worse!"
When things get better, it's cause someone stood up and said "I want to make things better!"
Think american revolution, WW2, and the people who protested vietnam. These people did something, because the faced the fact: Yes, if you keep sitting there complaining,
IT WILL GET A LOT WORSE!
Now we have one. And they are legally binding...
Joy Joy.
Been saying all along you CAN waive rights via agreement of a contract..
---- Booth was a patriot ----
It's a press statement by Blizzard that says "Don't buy our products!".
Here's a blurb from linuxjournal on a ruling between Adobe and Softman that appears to grant Right of First Sale. Did this one get overturned?
Yay our favorite game company won!
Now the boycott on them can end! Enough of those pesky morals and ethics. I mean they make AWESOME video games. No one's gonna remember your sacrifice against a game company. So GAME ON!
WOOO HOOO!
Mac OS X and Windows XP working side by side to fight back the night.
You don't get to read the EULA before you have already purchased the software and many stores will NOT take back opened software. I see some lawsuits coming against said stores if this appeal doesn't work out. Imagine if when you bought a music CD you had to sign a contract saying you wouldn't allow anyone but yourself to hear any time you played it.
--
WHO ATE MY BREAKFAST PANTS?
...would it be legal to make backups of the software BEFORE agreeing to the EULA?
Yeah, but then again, the media regularly gets stuff like this wrong. News reports read the original article, *think* they understand it (even though they don't, which shows like mad), and then rewrite their own version.
So, yes, you're right. Too bad the media industry doesn't know what's really going on at times like this. They should realize they have to fully understand the article, since otherwise they're confusing the public, and then the public gets the wrong idea too, and then everyone is worse off.
The EFF reported that the Vivendi/Blizzard vs. the good guys case has been decided, and it doesn't look good.
Thanks for letting us know who the good guys are! I can never figure out who's right or wrong myself, and I like it when I can count on Slashdot telling me that.
So say you click thru a EULA, you agree to it. You install the software and then decide to pirate it, saying "the EULA is not legally enforcable".
You do that, that's retarded.
You want to know a better solution? Don't agree with the EULA. If you don't like the terms that it sets out for you, stop the install, put the media back in the box, and drive back to the store and bitch about it.
Then simply don't buy that software from them again.
You know what would happen if people did that?
Bizzard (and other software companies) would STOP MAKING UNREASONABLE DEMANDS ON THEIR CUSTOMERS.
Whala, problem solved.
And saying that it won't work beause people are sheep is no excuse for your own llamma-like behavior. Stand up for yourself, stop being such a wimp all the time.
I mean don't you think that it's pretty pathetic to trade your self respect in order to play WoW?
I do.
It roughly translates to "Boycott Blizzard."
This ruling gives publishers the ability to take away all consumer rights under copyright law. It basically overrules copyright law with whatever they put in their EULA.
You can't play without clicking through the license. You can't read the EULA without opening the package and running the software. You can't return unopened software (to most stores, again for mostly copyright reasons).
So unless you consent to the possibility of giving up all rights, you should not purchase any software. You have no idea what the restrictions of the license are until after you've given them your money.
An extension of this could mean that any documents you create under a future version of MS Office could potentially be copyrighted by MS. Granted that would be a very stupid thing for MS to do, but this ruling seems to make it possible.
blog
...at least when it comes to GPL software I know what I'm getting into when I use it.
Let's see - software that works the way it' supposed to, has no spyware, and is trustworthy or something with a EULA and none of the above?
Someone tell me again why Windows and commercial software are so much better than open source / free software because I'm just not getting it...
- Dave
There are two seasons in my world - Hockey and Construction
The solution? Someone comes out with a popular piece of software with some crazy clause in the EULA. Like "On October 31st, 2009, your right to use this software is revoked, along with your computer, which becomes our property on the date" or some such. People won't care, and when the enforcement lawsuits come to take your computers, we'll see if this curent decision isn't overturned. Bad news in the meantime, though.
The GPL looks better and better every day.
SAILING MISHAP
...to open a second front against companies like this, and just refuse to buy their products?
If Blizzard is a necessity of life for you, like food, I guess you lose. But it seems like a luxury to me, and isn't it time to just refuse to give a company your money if you don't like what they do with it?
It's your money that's paying for their lawyers.
bnetds primary purpose is to allow people to play pirated versions? errr no. It is to act as a battle.net server that isn't controlled by blizzard, perhaps you'd like to setup private leagues or something.
I guess you reckon the primary use of a cd burner is to steal music from hard working starving artists and their even harder working record company executive bosses.
The EFF is just doing their job, as lawyers, to explain the worst case possibilities of this ruling.
You can bet your ass that Blizzard's lawyers, and EA's lawyers, and MS's lawyers, and Sun's lawyers, and IBM's lawyers, and probably even SCO's lawyers are reading up trying to figure out how they can best leverage this into their own products.
Next thing you know, your iPod will only work with iTunes.
Oh. Right...
blog
But you should be able to return it directly to Blizzard.
Boycott Howto:
*Get a lot of money (or indignated consumers)
*Buy Latest Blizzard game in droves.
*Open the box. Copy the game. Copy the CD-Key. Scratch the cds a little.
*Return all the package to Blizzard, arguing you don't agree with the EULA.
*Post Cd-keys somewhere on the net.
*Repeat (since you got the money back, why not?)
They come with the installation of software--after you've already paid for it.
The big problem most people have with EULA's is that they aren't presented at the time of purchase. I go to the store to buy a copy of Warcraft 3, I see no license agreement, I am presented with no conditions on my purchase, I pay for it. Contract concluded. Finito. I now have all the standard rights of the consumer to a copy of a copyright-protected work.
What makes you think Blizzard can then say, "Oh, and you have to agree to surrender some of those rights. Tough luck."
I've been following this for some time, and was always kind of appalled by how unjust the case is.
Basically, for those that don't know, bnetd was a daemon (!) that ran under Linux (maybe windows, I forget) that emulated Blizzard's Battlenet server. Blizzard sent out a C&D and took them to court under DMCA. Really, this is a whole lot like DVD Jon in some ways, because Vivendi is contending that the existence of bnetd promotes piracy because it does not enforce CD key checking. In reality, the motive was never to circumvent CD key checking - it was a workaround to allow LAN games over TCP/IP (vice IPX, bleh). The only way to work this is to emulate a battlenet server that everyone can log into locally.
IIRC, the bnetd team actually asked for Blizzard's help in making CD key authentication work (since the point of the project wasn't piracy) and Blizzard told them to go away. This clearly demonstrates a horrible misuse of the DMCA - basically the circumvention of the copyright protection was unintentional and in fact, undesired.
Hell, since I'm on the fence about who to vote for, if one of the candidates for president would say "Hey, I'm going to fix the DMCA mess!" I'd vote for him. Too bad that'll never happen.
How can an EULA, which I would hardly class as a contract, take away statutory or court established rights? Can I sign away my right to free speech? Right to counsel? How far does that go and what takes precedence, law or contract?
Would a lawyer please explain?
Basically, they upheld EULAs. Once you legitimize EULAs, then anything goes. So the Fair Use, DMCA, etc. aspects of this case are relatively uninteresting.
What this court has done, is strike down First Sale on a technicality. They're saying that unless you have proof of title and ownership of the software, then you did not buy it.This is clearly wrong, but I can't pin down which way they made the mistake. There are two possibilities:
- Oops, the defendants didn't keep the receipt. They probably shoplifted.
- or
.. they're saying that 'title and ownership' of the software, is the same thing as holding the copyright. If you do not hold the copyright to a game, then you do did not purchase a copy of it.
Both are pretty dumb. I strongly suspect their argument is the second one, but they don't seem to get into much detail about just what they meant by the title and ownership. I think the court got confused between owning copies and holding copyright. If I go into a retail store and buy something in exchange for cash, then whether I have 'title and ownership' of that item, is the same question, whether the item is a CDROM or a carton of milk. In either case, it was the exact same type of transaction: I handed the cashier some money, and they let me walk out of the store withe the item.There are some interesting consequences of this you-don't-own-what-yuo-bought decision. For example, you cannot lawfully buy a Blizzard game as a gift to (or for resale to) someone else, unless you obtain distribution rights from the copyright holder. Parents, if your kids want a Blizzard game this Xmas, tell them you can't afford the litigation risk.
Another consequence is that you can now enter into a contract with someone you have had no dealings or agreements or communication with. You can transact solely with a local retail store who does not represent any other party, and somehow end up in a contract with a software company in another state. You don't even have to send them something with your signature.
Now that I think of it, I wonder how the retail store was able to lawfully sell you that copy, since they were just a licensee (they do not own the boxes sitting on their own shelves) and agreed to the terms of the EULA when they bought the software from their distributor. Do retail stores now have to negotiate for distribution rights from the makers of everything they sell? I think you just put a bunch of stores out of business, court.
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
"But, you are getting something in return: A right to use their software.. ( presumably that is something of value, sometimes its debatable )"
You already paid for the right to use the software when you paid the purchase price. Otherwise, what were you paying for? The packaging?
---------
There is inferior bacteria on the interior of your posterior.
If you want it to get better, you have to do something about it, not just sit on your ass and say "it will probably get even worse!"
How monumentally naive. Thousands of people have stood up to do something about the ridiculous drug laws in this country. NORML has been working for 30 years to repeal the marijuana laws. They have had no success at the federal level. Imagine spending half of your life to overturn ONE stupid law, and meeting with failure. Face it. The system is unresponsive to the needs or desires or will of the people.
If you buy it, stop installing at the EULA, and attempt to get a refund within the 30 days but are refused, that should void the contract.
So go ahead, buy it, open it, and return it. If you get back your money, fine. If you don't get back your money, the agreement is broken by them and you can do whatever you want.
---------
There is inferior bacteria on the interior of your posterior.
You'll note that the only thing that you get when you purchase Warcraft III is a working CD. The manual can crumble to dust upon opening the package. The software can do absolutely nothing at all, or for that matter it can cause your monitor to explode and ruin both your eyes, and as long as the CD is good, then Blizzard owes you nothing. In the event that the CD doesn't work Blizzard can at their option send you a Tootsie Roll(TM) Blow-Pop and that's it. If this license is binding then Blizzard has the option of taking your $50 and giving you a blank CD. Seems like bullshit to me.
If you want to license your software instead of selling it, do it right. Require a signed (and countersigne) agreement up front. This is a pain in the ass and doesn't get you into retail stores, but thats your problem and you need to deal with it if your product is that sensitive and important. If you're going to sell retail, then you can treat your software just like a book with no problems.
On a side note - if someone has written or can provide me with a pointer to a "license agreement" that basically says there is no license, you're bound by copyright law alone, here's a summary of your rights and restrictions I would be grateful, because I'm lousy at writing that stuff myself.
Surely it's explicity there - the EULA will state that any and all documents created using this software are the property of EvilVendor, inc.
That's very specific. Nasty, but specific.
Semper en excreta sumus solum profundum
Here is what we've learned:
- An EULA is an enforcable contract as long as it is not too "one-sided" or "unconscionable"
- You don't own software even when you pay money for it
- The DMCA allows reverse engineering for the purposes of interoperatbility, but since they didn't write a client then this does not apply
- You are allowed to waive your rights guaranteed by law if you click on a EULA
- Different states have different extensions to contract law
I would like to ask this court this questions:1. What if the Jung did NOT admit to clicking or reading the EULA? Would it still be valid? What if a third party installed the software?
2. If the Blizzard EULA is not one-sided, what constitutes a one-sided contract?
3. How can people sell used Blizzard games on EBAY without the permission of Blizzard? Why isn't Blizzard enforcing their "contract rights"? After all, in order to transfer a Blizzard software license, one must get permission from Blizzard, thus sayeth the EULA.
4. What if Jung had started working on a new client? Would that have passed the Interoperatbility test and allowed him to continue development of a alternate bnet server?
While Blizzard does show injury in the fact that people could use the Jung's bnet server without having a legal key, I think this ruling is extremely one sided.
Clickwrap should NOT enforcable contract law!
Who says backups are fair use?
There are four factors that judges use to make a fair use determination under copyright law:
Any rational analysis of these rules suggest that backup copies are not, in fact, fair use of copyrighted work under the present code and caselaw. Sad, isn't it?
-Isaac
I am not a lawyer, and this is not legal advice. For Entertainment Purposes Only.
The real breakthrough in recent years has been the massive work that has gone into the cross-platform SDL toolkit. It's really amazing, and not to discount anyone else's work, but I see a lot of great stuff coming out ever since SDL became commonplace.
Funny, that.
Guess who made SDL?
Sam Lantinga.
Guess who funded him (insofar as he was funded)?
Loki.
Guess who hired him after Loki passed away?
Blizzard.
Blizzard is starting to remind me of Microsoft (Buy Bungie, buy Connetix, buy Mongomusic). I remember when the technically-superior Total Annihilation was squashed by the better-marketed Starcraft. Every time I really start to like something, Blizzard starts sticking their fingers into it and ruining it.
May we never see th
Real boycott howto:
-insert a witty something-
"The big problem most people have with EULA's is that they aren't presented at the time of purchase. "
No the big problem is, people don't and can't be expected to enter into a contract (which is what an EULA purports to be) for a minor purchase for a few $$.
Realistically these densely worded contracts you would have to get professional advice in order to know your rights and loss of rights. You can't do that for every $40 purchase.
What's more is, its impractical to obtain that legal advice when your in a shop, even if you were presented with the contract just before purchase.
What I think you should do is this:
Write a letter saying that regardless of what the EULA says, you do not accept it, will not read it and are not entering into a contract with the publisher. If they don't like it, they can arrange to collect their software from you at a convienient time and give you a full refund.
Send the letter off to them, THEN INSTALL IT.
If they can impose terms after the sale on you, you can impose terms after the sale on them. If its reasonable for them to expect you to return to the shop at your expense, its reasonable for the shop to collect it from you at their expense (or the publishers).
Society, as a whole, doesn't give a fuck about fair use rights, perpetual copyrights, or click-through EULAs, either. Yet here we are.
Just because there isn't massive popular sentiment against what we here think of as an injustice doesn't mean it's not worth fighting against. You have to start somewhere.
This is untrue - I have never seen (retail) software where the full contents of the EULA were accessible without running the installer (or at least opening the package). There's a small sticker with something to the effect of "there's an EULA for this somewhere". That's totally aside from the point that I cannot see how any judge can reasonably claim that an EULA has any standing. It's clearly not a contract. The only case law I've read seems to have the judge saying that he thinks the software industry derserves to have this sort of extra power, so he's going to let them have it. With all the retorical whining about activist judges, why don't people pick on this sort of nonsense?
"How about shays (chaise) lounge?"
It's "chaise longue," not "chaise lounge." "Longue" means "long," "chaise" means "chair."
G
The decision acknowledges that an EULA is a contract of adhesion, but rejects that prohibitions against investigation or reverse engineering of a product are unconscionable terms and thus the fact that it's a contract of adhesion is irrelevant (they partially base this on the fact that the party to this dispute was smart enough to reverse engineer the product, and thus should have known well enough to read and understand the terms of the EULA, unlike a normal user - no, I'm not kidding on this).
They then go on in the next section to state that fair use rights don't apply here since the EULA waives them - again, they've already asserted that there is nothing unconscionable in the EULA, and they fail to consider whether waiver of fair use should be considered unconscionable in a contract of adhesion, they just assert it indirectly (basically their argument states by implication that Joe Average doesn't care about his fair use rights, and thus their prohibition in a contract of adhesion is not a radically unexpected or unconscionable term and is thus PERMITTED).
As for EULA terms constituting copyright misuse, they don't really make any assessment to speak of other than to say that this may be an affirmative defense to copyright violation, but that portion of the case has been dismissed already, and this doesn't have much to do with the fact that there was a contract formed by the EULA.
With respect to the DMCA, the court rejects completely the notion that 1201(f) (the reverse engineering exception in the DMCA) is applicable unless the relevant party has permission to circumvent it. This makes no sense, since even the DMCA doesn't state that, they infer it from another case. In essence, they interpret the word 'use' in the DMCA to mean 'use as permitted by the EULA', and thus breaking the EULA contract now AUTOMATICALLY means you are no longer permitted to take advantage of the reverse engineering exception of the DMCA under any circumstances, regardless of your intention to circumvent copyright.
The next part - where they find that they state that bnetd was not an 'independent program' according to the DMCA is completely wrong. They say it fails to be independent because it replicates features from the existing server program created by Blizzard. This is a definition of 'independent program' that only the most twisted logic could accept.
As to their overall conclusion that the defendents were trafficking in a circumvention device as defined by the DMCA, they come back to their rejection of the reverse engineering defense - since they reject that, and have already stated that the action of creating bnetd constitutes 'copyright infringement' (meaning presumably violation of the DMCA), there can be no doubt that it is a cirumvention device (though they don't seem to address section E(2)(A) directly - what was the primary purpose of the device).
I understand that it's hard to argue that the primary purpose of Bnetd wasn't to allow circumvention of copyright, and on that point I can understand where the court's hands are tied by the poor legislation. The rest of this decision is filled with misunderstanding, misinterpretation and half-truths.
Anyway, this was a quicky analysis and I'm sure I missed stuff in here, so feel free to correct or add to this where I made mistakes.
It makes me wonder what the legality is on pre-editing, deleting, or "wedging" a new EULA in before you run the installer.
Information wants to be free.
Entertainment wants to be paid.
You just want to be cheap.
But according to the EULA you're not buying the software, you're buying a license to use the software. Even if your original media is destroyed or unusable, your license is still valid. Either the software manufacturer owes you a free copy of the software (minus media and shipping costs), or you can use your backup. No effect on the market.
It's not a license! It's some bizarre twisted document that tries to be a license and a contract at the same time.
A license only gives you freedoms. The GPL, for example, gives you the right to distribute modified copies if you distribute the source. It's copyright law taking away your right to distribute copies, not the GPL.
A license doesn't need to be agreed to. If you don't like it, then standard copyright law applies.
I think the case that needs brought isn't one based on the enforceability of an EULA. In all but a handful of states sales are governed by the terms of the Uniform Commercial Code and there's no exception for software. If the seller didn't make you sign an agreement before or when they accepted your money and gave you the goods, the UCC defines the terms of the sale and the rights you and the seller have after the sale. What we need is a case brought on the grounds "I bought this software. No other agreement was demanded at the time of the sale, so the terms of sale are those of the UCC. Since I declined the after-the-fact EULA and it's changes to the terms, what it says is irrelevant and the terms of the sale remain the terms of the sale at the time it was made. Judge, either make them justify their case under the terms of the sale or make them stop harrassing me by demanding I adhere to terms that aren't part of the contract.". This would really damage the case of companies like Blizzard, probably fatally. It'd also put them in the position of either having to forget about enforcing those unreasonable terms in the EULAs or require every mass-market sale to be preceeded by paperwork neither the customers nor the stores would find acceptable.
Pay to have a 12 year old purchase and install the software on their own PC, and leave the room while they do it. (They are the ones who will be playing the game anyway) Minors cannot be legally bound to any contract.
My rights don't need management.
Not quite. The EULA is a contract. It applies restrictions to you that aren't part of the law, and it claims that if you don't accept it then you don't have any rights including the ones the law normally grants you. The GPL is a true license. It doesn't restrict you, it only grants you rights you wouldn't otherwise have under the law. If you refuse to accept the GPL you retain your rights under the law including the right to use the copy you got, you just can't do what the law normally prohibits you from doing (ie. distributing copies of someone else's copyrighted work without permission).
* Get a lot indignant consumers
* Buy Latest Blizzard game in droves
* Open the box. Start installing the game. Read the EULA end-to-end, noting the parts you don't like. Stop the install by declining the EULA.
* Attempt to return the package to the store; politely express disatisfaction about their refusal to accept EULA returns. Note the parts of the EULA you find unacceptable. Agree that you will take the issue up with the manufacturer.
* Contact Blizzard to obtain an RMA, politely informing them you want a rebate since you don't agree with the EULA, and your local vendor declines to provide one. Be sure to again note the parts that you find offensive, and why. Return all the game materials to Blizzard.
* Repeat every eight weeks. After all, you do want to see whether they've changed the agreement to something more reasonable. =)
Note, you may be out about six bucks per cycle doing this. If it weren't for that, I'd be pleased to join in such a movement. While I like Diablo, I'm afraid Warcraft bores me once I finish clicking through the "You're making me seasick!" gags.
//Information does not want to be free; it wants to breed.
(Published at my homepage: http://www.schkerke.com/blog/archive/2004/10/02/42 5.aspx)
The press release came today from the EFF that the bnetd vs. Blizzard case had been put to rest. In essence everything that has been urban myth till now is dispelled. Reading the summary judgment, it looks as if a software producer can place whatever terms they want in their license and force you to agree to it. The case was brought under the DMCA initially and apparently expanded to include breach of contract and agreement at a later time.
The judgment can be found on Freedom To Tinker, at http://www.freedom-to-tinker.com/doc/2004/bnetd_30 sep.pdf. It's an interesting read -- I mostly ignore the case citings and get to the meat of the judgment itself, which can be fairly easily followed. The citings will lose you.
What is particularly disturbing about this case is the fact that it was settled via summary judgment. IBM in SCO vs. IBM is fighting tooth and nail right now to have a summary judgment issued that they have never infringed on SCO's copyrights while working with Linux. According to Groklaw, in order to dispute or dispel a partial summary judgment, you need only show disputed facts. The judge in this case apparently felt there were no disputed facts -- a sad tale indeed.
First, the small print in the system requirements area that says this software is subject to an EULA is enough of a notification to the purchaser that they are not purchasing the software, they are purchasing a license to use the software. I don't consider that a big enough notification then. The limitations and restrictions placed in the EULA also supercede all other copyright, federal, and state laws -- rendering the first sale doctrine and reverse engineering for compatibility moot.
Second, the Court in this matter has never tried to return software to Best Buy. Every game purchaser in the world is familiar with the "return it unopened or exchange it for the same product if opened and defective." Yet returning the software to the store it was purchased from was listed as an option by the Court. This is not a feasible option - no store returns opened software, although I wager if you had a Federal Judge ask the question the stores would chime, "Sure we do!" If you're a young male trying to return the software though you'll be treated like a black man at a white water fountain in the early '50s -- with suspicion, distrust, anger, and outright hatred. (pp. 6-7, "The terms of the EULA and TOU themselves do not appear on the outside packaging. If the user does not agree to the terms of Blizzard's EULAs or Battle.net TOU, he or she may return the game for a full refund of the purchase price within thirty (30) days of the original purchase.") If the court is referring to the option to return the software directly to the publisher let me ask you, have you ever tried that? Not to mention the cost you incur for shipping and the fact the the publisher may still reject your refund.
The fact that the EULA is available nowhere outside the physical media of the CD-ROM also wasn't an issue. The fact that a contract normally requires agreement between both parties wasn't an issue. (In one way I can see this - if actions were taken by both parties that could be taken to reasonably assume they had knowledge of and agreed to the contract then the contract would be binding. This doesn't explain how my son can agree to an EULA at age seven - despite the fact that he can install software. This doesn't explain what happens if you copy the CD-ROM, delete the EULA from the CD-ROM, and install the software with a blank license agreement. This doesn't explain the software that preinstalls things on your machine before you ever even see the license agreement - notably music CDs with their (in)famous copy protection methods.
bnetd was originally brought around by Blizzard's inability to deal with cheaters, hackers, and huge amounts of downtime on Battle.net. I like to thi
My reality check bounced.
Recent studies have shown that there are more pot smokers than African Americans in America.
Stupid black people, wanting equality. Society, as a whole, doesn't give a fuck about a few people being forced to the back of the bus.
Get over it. Start complying with the law, get to the back of the bus, or be prepared to face the consequences.
It's been a long time.
I don't see why. What basis is there for them to have any force? They meet pretty much every definition of "not a contract". They're additional conditions after the sale, which is a no no under every consumer protection law ever dating back centuries. They're contracts of adhesion, because you don't have the opportunity to negotiate. They're questionably contracts at all, because copyright law explicitly provides you with every right you need to use software you've bought, EULAs notwithstanding. Right of first sale generally indicates that if it looks and acts like a retail purchase, it _is_ one, no matter if after the fact a company wants to call it a "license". The only rationale for them to have any effect is, in essence, the argument that if you throw a ton of text at someone with a button labelled "I Agree", that somehow a legally binding contract is created. This crap would get laughed out of court, and public opinion, in ANY other context. Period.
Even more than that, whats the moral imperative for an EULA? Software publishers don't need any of the rights they claim to market a product. How is the right to forbid reverse engineering (despite explicit legislation preserving that right!) essential to them? Or the right to forbid users from measuring and making statements about performance? Or, in fact, ANYTHING except "you can't make copies of this and give them to all your friends", which is neatly covered by copyright law?
An EULA could be binding if it was presented in terms of a contract, like, say, a cell phone contract. There's a form, you fill it out, it's countersigned by the retailer, you pay your money, you go home. The software industry wants to be able to generate onerous licensing terms AND have the benefit of acting like a normal retail sale and it just pisses me off that so many judges seem to buy into this crap.
Even if you could return it, no questions asked - it STILL wouldn't pass muster in any other context. It's been tried in tons of industries. The auto industry tried it. The book publishers tried it. The music and movie publishers tried it. Every other time, it's been shot down. I don't know what the hell is wrong with this judge. This is basic, basic stuff about the integritry of the market. Think of how shitty your life would be if everything you bought could have binding, post-sale conditions of use. Think how broken and fucked up our economy would be!
I have never seen (retail) software where the full contents of the EULA were accessible without running the installer (or at least opening the package). There's a small sticker with something to the effect of "there's an EULA for this somewhere".
This is all that is needed. I am a lawyer and I hate to tell you but this is all that is required for them to make the terms of the EULA enforcable upon purchase. There was a case that went to the supreme court concerning this, and the judge found that by simply making people aware that there are terms to be adhered to, the sale of a product bound by those terms is legal. If the purchaser doesnt like this then they can later return the product. It is simply a matter of convinience and motivation of the economy : it would be obviously unreasonable for the manufacturer to put the eula on the box of the product, as this would not tell anything about the product and would make it difficult to sell it and differentiate it from competition.
Remember, law is geared towards enabling the economy, and in cases like this it is a necessity even though it may be abused.
You can think about this in normal contract making situations as well. A person may agree to sell a house to another person, and on agreeing with that person to the sale he is liable for his promise. But it is clear to both parties that there are other terms that will have to be agreed to later because it is simply unreasonable to think that they would expound all of these terms verbally. Verbal contracts are often predicated on the fact that there will be other terms that will have to adhered to.
-- "Man is born free, and everywhere he is in chains." Jean Jacques Rousseau