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Gator's EULA Dissected
theVP writes "Ben Edelman has recently written up his disassembly of the Gator EULA. He has come across some interesting finds, including the fact that their EULA states that you can't remove their software via 3rd-party means, as well as prohibiting the use of packet sniffers or intercepting the data coming from their software."
That if they ever decided to try to legally enforce that EULA that the fact that their software installs itself without permission or intervention from the user invalidates it. The legitimacy of EULA's aside, they usually say they're activated by using the software. You don't really use Gator/Claria/whatever they're calling themselves now, and most of the people who have it probably don't even know they have it, so you don't do anything to enter into the agreement.
Often times, it's mentioned on /., K5, Fark, etc. that EULAs aren't enforceable as a contract. Would this be a good case for someone to take Gator to court over, since Gator seems to want to restrict a person's ability to use thier computer? Would a judgement against Gator cause other companies to be less restrictive in their EULA terms? Or, would other companies just point and laugh (figuratively) at Gator for getting nailed?
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The part about removal is quite obviously exorbitant and would not likely hold in court. There is nothing really shocking in prohibiting the use of packet sniffers (esp. as a step towards reverse-engineering.)
The USER of this SOFTWARE gives up all rights to their immortal SOUL. Any attempt to regain the rights to your SOUL will result in immediate banishment.
Have a great Gator day!
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I normally do not support the death penalty, but I think those responsible for gator should be executed in a shocking and public manner, such as public beheadings or a firing squad. These people are a menace to society, and probably cannot be reformed so just trowing them in prison until they change their ways would not be adequate.
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So, if you can't remove it via 3rd party tool why can it be installed without the users knowledge, or even be un-installed by Gator itself?
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I can't remove it with 3rd party software. Your uninstaller doesn't remove it, so I can't remove it. I can't use a sniffer to see what it is doing and you can install it on my computer by any means most of which will never display this EULA.
Sounds great, so about switching my company to Linux.....
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Is it really that typical to prohibit use of packet sniffers? Any other programs include this in their EULA? I've never seen it before, though perhaps I haven't been reading the right EULAs.
If programs can prohibit packet-sniffers, then how are users (or researchers or testers or auditors) supposed to confirm whether or not programs are complying with their own privacy policies?
from the article:
If Gator were easy to uninstall, users might not need to resort to third-party removal programs. But Gator makes its software hard to remove. Browse to Add/Remove Programs on a computer with Gator installed, and there's often no entry for Gator. Instead, users are required to identify, find, and remove all programs that bundle Gator, and only then is Gator's software designed to uninstall. This unusual removal procedure -- unique among all programs I've ever encountered -- makes Gator difficult for users to remove.
Actually I can't fully argue this. When you installed say, Kazaa, you agreed that in exchange for running Kazaa for free that you also agree to run for instance Gator. So removing Gator should entail removing Kazaa or whatever program bundled it. I can't argue that point. Shady? Well maybe. But I can't argue it.
With that aside, who here really believes it's fully uninstalls when you uninstall Kazaa from your WinBox?
"why don't you just slip into something more comfortable...like a coma!"
Gator's license, as presented by Kazaa, merges section headings in with body text. No bold type separates section headings from the paragraphs that follow. For that matter, no line breaks separate the headings from the paragraphs. They're just all merged together.
Example:
Seriously! See screenshots.
"Any use of a packet sniffer or other device to intercept or access communications between GP and the GAIN AdServer is strictly prohibited."
Does this mean that we will get fried under the DMCA if we sniff what our personal information is getting sent through the line without our authorization? (CC#, SSN#, etc)?
Rogabean writes: "When you installed say, Kazaa, you agreed that in exchange for running Kazaa for free that you also agree to run for instance Gator. So removing Gator should entail removing Kazaa or whatever program bundled it. I can't argue that point."
Certainly Gator claims that Gator is required in exchange for getting Kazaa for free. Whether or not users understand this and meaningfully accept it is another question, of course. If they did, there's a certain persuassive force to Gator's requirement that Gator stay as long as Kazaa stays.
But why not put an Add/Remove entry in Control Panel that lists Gator? Selecting Gator's Remove entry would trigger a popup that prompts "Warning: Removing Gator will remove Kazaa too. Do you want to continue?"
This way, users could always get rid of Gator by going to Control Panel and removing the Gator item, just like any other program.
In contrast, as it stands, users must figure out what programs came with Gator, then separately remove each of those programs. The current procedure is quite a bit longer and more complicated than what I propose, and quite a bit less intuitive and more complicated than removal of most other Windows programs.
Gat0r iZ t3h sUx0r
Next, companies will prohibit users from even reading the EULA or discussing the EULA with others. Its not unlike the database EULAs that prohibit the sharing of benchmark results. This type of contractual control of communications is bad for achieving the transparency needed for true capitalist competition.
Two wrongs don't make a right, but three lefts do.
Yes. Recall the New York Attorney General's successful suit against Network Associates, challenging a EULA prohibiting posting benchmarks or reviews without consent.
"Judge Orders Software Developer to Remove and Stop Using Deceptive and Restrictive Clauses" - NY AG's office
nt
So, whats the legal situation where you get a drive-by install and dis-agree with the EULA.
If you dis-agree with the EULA then you are not supposed to run the software. However, you are not given the means to not run the software. This is twisted.
But, since you did NOT agree to teh EULA, and it was put on your system without your permission (illegal unauthorized access, according to the anti-hacking laws, just ask Mitnick) then I don't think the DMCA can apply.
So, now, I can legally dis-assemble the software, annotate it with comments, and post the source up on Usenet for google to search.
----- If communism is a system where the government owns business, what do you call a system where business owns govern
So what's Gator's remedy if you violate the EULA? They consider the contract broken and you can't use their software anymore?
Great! That's what I want - your crap spyware gone. Now please enforce the EULA.
the major advances in civilization are processes which all but wreck the societies in which they occur - A.N. White
And if I sniff the data and see the packets then what exactly is the action against me? Does it mention any actions that can be brought against the capturer of the data or what happens if you remove the software?
Why do overlook and oversee mean opposite things?
Wait, so they are asserting they own control of any network which has had Gator installed? If I have a home LAN, and I'm sniffing packets on my LAN, those packets belong to me. So if someone installs it on a corporate computer, then the IT department is now prohibited from reading their own packet data?
They also claim that someone who installs a piece of software on a machine can make anyone else who uses that machine bound by that agreement? How the hell does that work? "By clicking here, your agree your sister will have sex with me" is not a valid license. And if the user wasn't the duly authorized 'owner' of the machine, is their entire license void???
Good god. I completely can't see how any of this shit is legal. Not even remotely. Especially since it piggy-backs its installs with so many other things.
Sheesh. No wonder I do my web surfing on Mozilla on a FreeBSD box behind a firewall. Good luck putting gator on that.
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I'm wondering if anyone is working on documenting how the spyware EULAs, like Gator's, might violate any one of the many Microsoft product EULAs, and how that violation might be used to leverage Microsoft(or it's board) into smashing the alimighty Hammer of Bill on these spyware companies.
Say like folks who use/subscribe to MSN services( MSN Wallet, bCentral, MSN Shopping, Expedia, MSN Maps, MSN Music, etc) or the application services (Passport, Messenger, Encarta, Money, MSN Toobar, Mappoint, Streets and Trips, Picturte It, Windows Media, etc, etc..), can there not be conflicts between Gator's EULA and any of these M$ product EULAs and servcies websites terms of use for the data they collect and claim "ownership" to?
It would seem Microsoft could gain some ground with users if, instead of focusing on attacking Open Source products and their infringement on M$ EULA, to target the compainies exploiting the vulnerabilities of their software and it's users, aka GATOR. Everyone would cheer that effort.
This article on Freedom to Tinker, and the comments, got me thinking about how Microsoft has a vested interest in squashing outfits like Gator. They have the leverage, and clearly the clout with the courts, to intimidate and spend them (litigation costs) right out of business.
Please try again? Server is doing fine, serving thousands of requests per hour, still working fine in my testing.
I did have to upgrade my hosting plan after the tens of thousands of downloads of my spyware-installed-through-security hole video last week (4MB file!) (see write-up, slashdot coverage). But especially compared to that, this week has been a cakewalk!
That makes me want to write up something for my own computer.
"By allowing your software to be installed on my computer, you have agreed to..."
:) They really don't have a leg to stand on, people, however, I admire Ben's enlightening article.
JoloK
Unless kazaa's EULA stipulates that you can't have it without Gator, they're irrelevant to the discussion. You can't as part of your license put additional riders on other people's licenses. It doesn't work that way.
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For one thing, I don't know about the legality of most EULA's as a whole. They certainly -might- be workable, but certainly some have been struck down as invalid, and rightfully so.
"By installing and using X software package, you agree that every time you type in a credit card number to your system, X software package's keylogger will transmit this data to X developer. You further agree to let X developer use this information to make all the purchases he damn well likes."
While this may seem an extreme example (and one I'd love to include in a few things...hehe), you would still be going to prison for credit card fraud. There are limits to what these "contracts" can do, regardless of whether you knowingly or unknowingly agree to them.
Also, most companies, and most judges, are well aware that people do not read (and would not for the most part understand if they did) the license agreements. They're a very shaky argument, which is why I think companies have been VERY hesitant to attempt enforcement except in flagrant, obvious cases.
It is generally not considered a dealing "in good faith" to put something in a contract that you know will only fly if the other party does not read or understand it. IANAL but I know contracts have been invalidated on these grounds before.
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In WI, I've been in a car that was pulled over on I94 going 1mph under the limit in the left lane, because it is ALSO illegal to be in the left lane going that slowly. I can't remember if the terms were obstructing other traffic or about only being in the left lane while passing.
Admittedly, the deputy didn't like the looks of our car, was a real moron (unusual in my experience, but this guy was) and let us go after his superior showed up and they had this long talk back by their cars.
The upshot, though, was that no one could legally sit in the left lane (either obstructing OR speeding) UNLESS traffic was going slower than the speed limit in the right.
Also, in MA the state troopers started occasionally driving in all three lanes of traffic on some interstate, forcing everyone to go the speed limit. Citizens sued, and won. In MA, at least, officers have a right to cite you for speeding but NOT to prevent you from doing it. I imagine that if it's illegal for an officer to obstruct traffic at the speed limit, it's certainly illegal for an ordinary citizen.
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that reminds me of something interesting that happened up here in canada.
two guys took their cars out on the 4-lane hiway near here, took up both east-bound lanes, driving exactly on the speed limit all the way for 67 miles.
they were arrested for obstructing traffic. and they were clocked at exactly 66 miles/hour (the speed limit on that highway)
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