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CA Court Strikes Blow Against Hidden EULAs
vsprintf writes "Ed Foster's Gripelog has a story on California's ruling against some of our favorite software producers and software retailers. EULAs inside the shrinkwrap are no longer good enough. Retailers with rules against accepting returns of open software could be in for hefty fines or settlements. Finally, a break for the buyer. May this spread quickly to other states."
by reading this post you agree not to moderate it down. only moderations of +1 insightful will be allowed.
What's next? Will we have to read and agree to the EULA before we can buy?
i can't wait to put this to the test at frys
Finally we are seeing some progress with some of these bullshit computer laws.
I don't care what they say, I just click ok to use the software. I don't abide by what they say. Its all lawyer talk anyway. In case your computer explodes, we don't want to be held responsible.
God spoke to me
I don't really understand the shrink wrapping law, what if a product is otherwise faulty because the software is buggy or similar? I'm sure (in the UK at least) this could potentially violate other laws regarding things should 'work as described' and similar.
She sounds like an iritating biddy but she makes a good point. Seriously though, how many people actually take back the software because they don't agree with the EULAs? I click 'ok' all the time. I could be agreeing donating my left nut to Microsoft but that doesn't mean I'm going to.
So I guess this means I get to save a few hundred bucks the next time I buy a PC that "luckily" comes bundled with a $200 copy of Windows XP that I have "purchased" by opening the top of the box?
What this probably means is that the EULAs for all the products in the store will be available to be read before you buy the software. (If not on the outside of the box, that being too wordy for most pieces of packaging.) In other words, if you think you might have a problem with what the EULA is going to say, you'd better spend 15 minutes poring over it at Fry's.
It's about time. Companies have gotten away with this for a very long time. What if someone buys a box with software and don't agree with the EULA. They can't return the box and they might have to go trough hell to get there money back. It wasn't right and I'm glad the government sees this now. Most likely other states will follow this ruling.
Now I won't have to download all my games, I'll just buy them, burn them and then return them for cash. Sweet!
I've purchased a shrinkwrapped software package. It includes an installation program which requires me to accept the EULA to run. Instead, I snoop around on the CD and find the files I need, or otherwise find a way to make use of the software without using the install/eula program(me). I in any way bound by the EULA indirectly, or is my use of the software then only bound by copyright?
If I am EULA free... anyone feel like writing a program that will install Windows from a CD?
Trying to use sarcasm in text-based forums does not work.
By Ed Foster, Section Columns Posted on Mon Dec 20th, 2004 at 08:02:57 AM PDT
Having so often been the bearer of bad news from the legal front, I am thrilled to have some good news to report for a change. The old-fashioned shrinkwrap license appears to have suffered from what may well be a mortal wound. Microsoft, Symantec, Adobe, CompUSA, Best Buy, and Staples have agreed in the settlement of a California lawsuit to change their ways, and you can already see the first results at the software retailer nearest you.
In January 2003, California resident Cathy Baker walked into her local CompUSA store to return copies of Windows XP and Norton AntiVirus she'd purchased there. When trying to install the programs, she had of course been confronted by all the obnoxious terms in the Windows and NAV End User License Agreements. Instead of clicking OK, she took them back to the store for a refund, as the EULAs said she was supposed to do if she refused to accept the terms.
At CompUSA, however, Baker was told the store's policy was that it could not give refunds for software once the customer has opened the package. Even though Baker had no way of seeing the EULAs until after she purchased the products, took them home, opened the package and tried to install the software on her computer, she was now told she could not get her money back even when she rejected the terms. (In a somewhat bizarre twist, after she protested enough, one CompUSA employee told her that they had "secret instructions" from Symantec to provide refunds in such circumstances.) So, like many others before her, Baker was confronted with the classic shrinkwrap license conundrum: She could only see the terms by opening the box, and opening the box meant she was stuck with it. But Baker did something most others before her had not - she went and got a lawyer.
"When Miss Baker came to us, we felt it was an important case to bring for the benefit of the general public," says Baker's attorney, high tech litigation specialist Ira Rothken. "In our research, we found that it hadn't been discussed before - there was no guidance on it in the literature. Here you have a multibillion-dollar industry that is using improper business practices as a consistent policy, in violation of federal and California consumer warranty statutes. As a practical matter, the consumer couldn't review the terms and conditions prior to the sale and couldn't reject them with any certainty they could get all their money back."
After Rothken first filed the lawsuit in February of 2003, ensuing news coverage brought more consumers forward with similar stories of their own. An amended complaint to the case Rothken filed in May of that year added a second plaintiff along with Baker and also included Adobe, Staples and Best Buy as defendants with Microsoft, Symantec and CompUSA. Ultimately the parties entered a mediation process and in April they reached a settlement under which the six defendants had up to 120 days to make the agreed-upon changes to their procedures. The entire settlement along with the amended complaint and exhibits can be read in a PDF file on Rothken's website, but it reads in part:
"The Settlement Agreement provides to the General Public of California, amongst other things, the right of consumers to return applicable Symantec, Adobe and Microsoft software for full monetary refunds even if the shrink-wrap has been opened ... In addition, Symantec, Adobe, and Microsoft agreed to provide EULAs for the applicable software products on their web site and notices on their respective software packaging of the web addresses to such EULAs so consumers can review such EULAs prior to purchase of the software." CompUSA, Best Buy and Staples "agreed to provide such EULAS to consumers upon request prior to sale of the above software at their retail stores in California and to provide notices to consumers in such stores to effectuate the above."
There's a l
For those who can't see the article:
Mirrordot Mirror
N.
"Nothing strengthens authority so much as silence." - Charles de Gaulle
Well, you can certainly buy open source software from a vendor, burn, install it and hand it back asking for your money in exchange.
Well in this case a few things could happen.
1. Companies will make simple consumer readable EULAs.
2. People will sign away all their rights without checking the fine print.
2a Resulting in a raft of stupid consumer protection.
2b Huge public backlash when the companies try to press their rights.
3. Some people will not accept these agreements and the EULA might become a factor on what software you purchase.
like any of us is going to pick "I Dissagree" AFTER WE HAVE PAID FOR AND TAKEN THE PRODUCT HOME???
It's pretty silly, Hurray for the courts!
(If at first you don't succeed, do it different next time!)
The article states that the current shrinkwrap scenario is fine as long as they put a URL to the license terms on the box. This is progress, but it's a baby step towards a real solution. Either accept returns or disclose the license prior to purchase.
Our intelligent designer has never created an animal that we couldn't improve by strapping a bomb to it.
doesn't this mean that if I lived in california I could go out, buy software, copy the cd, and then take it back?
seems like its an incentive for companies to implement online activations, hardware keys, etc.
...says that EULAs should have to be signed prior to the forking over of the loot. I pick up a box containing software, walk to the shop counter, pay my money and from that point on the software is mine to use as I wish (save for the protections granted by copyright to the seller, and various "fair business" obligations that serve to protect the buyer).
If there's some legalese that I'm supposed to agree to before installing and using the software, then it should be presented to me before I hand over the money.
Intellectual property isn't THAT much different to real property: when I buy a washing machine, I don't take it home, plug it in and then find out that it's illegal to use it to wash blue clothes...
I could be agreeing donating my left nut to Microsoft but that doesn't mean I'm going to.
Tell that to this guy...
You can't take the sky from me...
All that's happened is that the pigopolists are putting a url on the outside of the box pointing to the full eula on their website. Still the same obnoxious bullshit, just readable if you want to go to the effort.
"Eve of Destruction", it's not just for old hippies anymore...
Not only is it ridiculous to attempt to change the terms of sale after sale with hidden EULAs, AFAICT it is generally not legally binding to do so, unless specifically legislated to do so. I seem to recall specific legislature in some state in America, easy mod points to those who know it.
IA-definitely-NAL but in a very-very-light commercial law subject I took at Uni we looked at cases where terms and conditions were displayed inside a carpark (which you can't see unless you purchase the ticket). When something went wrong, the ones trying to enforce the terms and conditions lost their cases quite convincingly.
Morally (and with any luck legally) you shouldn't be obliged to go to the hassle of returning something because it contained a EULA or similar that you didn't know about (or weren't told about) that you disagree with. The transaction of cash for product ended when you handed your money over for the product and got the product in return. You shouldn't have to chase your money back because they chose to alter the deal afterwards. *does best Vader breath*
Of course things may be very little different if you obtained something for free or were presented with the agreement before purchase. A new trick used in car parking is to say it is subject to the terms and conditions, and if you don't agree, you can leave without charge in the first half hour. These were the first car parking terms I ever actually bothered to read, as they may actually stand up in court. I am guessing the GPL is pretty solid too, being a distribution license that gives you rights above what you already have, should you choose to accept it.
What's with the "by request" crap? I don't want to go into Best Buy and chase down an "associate" every time I want to know about licensing of a product. If the software company lost, and consumers won, how come consumers are running around looking for help?
Post the license stuff right there on the shelf with the software, or better yet, put it on the box in the first darn place. If its so complex that it won't fit with readable fonts, maybe its better to go buy something else.
Good grief, we aren't winning, we are getting punished for objecting....
I
If the EULA's are no longer valid, than spyware can be interpretted as a worm or trojan horse which would make the programmers and companies who write teh software liable for criminal and civil damages.
Ouch. And good for us.
I was under the impression any license agreement was not valid anyway without a notary present for a signature. Clicking a botton can not be interpetted as signing a document. Especially if no lawyer or notary is present.
I think the whole concept of a EULA is bs. MS who started this with average joe consumer knew it too but gave it a shot.
Corporate customers who sign legal agreements is a whole different matter.
http://saveie6.com/
I was hoping to get one of these companies into court over the validity of their EULA, get one of their guys on the stand, and have him/her sworn in on the stand with a laptop while clicking on "I Agree"
"But Baker did something most others before her had not - she went and got a lawyer."
I mean this is the US right??!? And NO-ONE had gotten a lawyer before...? I thought you guys sued if someone looked at you funny. Or made posts like this... Ooops..
Seriously though, it's a great point but EULA's aren't ever in plain english. I accept that the legalese is to an extent needed due to interpretation worries and the like but you could get the folks at he Plain English Campaign http://www.plainenglish.co.uk/ to turn these damn things into something that we might actually read and understand. EULA's might not be something most of us want/need to 'get by' on a daily basis but it'd certainly increase the chances.
Part of the EULA inside that box is a disclaimer of all warranties.
Therefore if you agree to the terms, they are not responsible for seeing to it that the software works as advertised, and you have agreed that this is ok.
Although this is great for the prospective buyer who simply doesnt like the EULA, it is also a blow for others. Why? because Adobe, Symantec and microsoft are now going to have to implement greater security measures to keep out piraters.
Or, if they are smart:
They could create a program for these retailers, where they would enter the product's serial number, and it would instantly check if that product had been regestered, hence installed. This would be easy for M$, seeming as how they already keep tracks on each product key issued.
They are still contracts of adhesion. There are really only two ways to avoid those. Either:
a. The buyer is given a chance to negotiate terms; or
b. Consumer protection laws mandate certain terms.
In the US (and elsewhere) the first option is not practical for mass-marketed items.
And in the US, with our repressive corporate-fascist regime, with consumer-friendly politicians like Ralph Nader far from being in a position where his ideas are taken seriously (unlike in the 1960s golden age in the US, when consumer protection laws were actually enacted), the second option isn't realistic, either.
That leaves the only remaining option choosing not to buy, choosing not to respect EULAs, exercising individual marketing power. This trend has been happening for a while on a lot of fronts, hence the rise of Linux etc.
It sounds like here the entire issue was not the enforceability of the EULAs, but the idea that you could be presented with this contract and not be given the ability to return it to the store. This is not a victory; this just predicts a situation where persons objecting to terms in EULAs will be universally responded to with well why don't you just take it back to the store.
A victory would be something saying that first sale rights apply to software, just like they do to books, and if you take a piece of software to the front counter of a store and purchase it you just bought a copy of that software, even if the software vendor includes a piece of paper saying that you didn't.
Irritable, left-wing and possibly humorous bumper stickers and t-shirts
... is to forbid the imposition of a new, more restrictive EULA in exchange for obtaining a security update. An update that enhances functionality is different, but the user should not be forced to pay for (either with dollars or with loss of rights) the enhanced functionality to get the security upgrade.
Finally you are entitled to a hefty refund if you want to buy a computer and have been forced to pay for unwanted and illegally bundled Microsoft software: http://www.windowsrefund.net
Recent experience with a network administrator (albeit a not to swift one) has shown me that you've gotta read that thing first- for every piece of software you install. Nefore the wrap comes off. Long before.
The admin was using AVG anti-virus (the free version) to protect all machines on a network. Never bothered to read the licensing agreement that said specifically that you couldn't install on a network. Claimed to a business manager that it was free. Period.
Needless to say, there was egg on the face of the admin when she found out (was told) that the product wasn't free to use in that manner.
For the sake of all, there should simply be a book at the seller's with all the EULAs placed there for light reading. Don't like the EULA, don't get the product. Easy as pie. I'm not going to take it home, check the EULA on a web site, and then make my decision.
Web sales? Agree to the EULA before you download product. Equally simple.
Unfortunately, it looks as if a monumental ruling (at least, in /.'s eye) produces, in the end, nothing more than a disclaimer sticker on the front box.
o ngtous.html"
Sure enough, the new packages for Windows XP Home Edition and NAV 2005 direct you to Microsoft and Symantec web pages where those EULAs are posted.
Perfect. Another warning label. So we went from "Warning: By opening this package, you agree to the following terms of the EULA as explained on the enclosed CD" to, "Warning: By opening this package, you agree to the following terms of the EULA posted at http://www.screwtheconsumer.biz/allyourbasearebel
Quote: Also under
You want a signature? You can't handle a signature!!
WalMart doesn't want to go to the expense of sending the product back to the vendor. As far as I know, they can't resell software and music as new once it's been opened. It's just easier for them to say "It's illegal for you to return this software" than "We don't want to deal with the RMA or take a loss on it."
Because a shrinkwrapped jewel case is *way* too easy to reshrinkwrap. Shrinkwrap isn't that hard to come by and all you need to find to make shrinkwrap work is hot air (hairdryer).
Many, many, many years ago I worked for a regional computer retailer (way out of business). They had a roll of shrink plastic and mounted blow dryer. They had nicknamed it the relicenser.
Paper containers with gummed flaps are a much better way of detecting an opened package.
eric
Well, now, hopefully companies will include activation cards inside the box that you have to call a number the company provides, speak to a rep, give your info, state that you agree to the license, then you get a reg key. I only wish a lot of software would do this - would keep a lot of idiots from making my job tougher because they don't know crap, or are using pirated software.
video games are free again!! woooooo
CD Keys and the CDs themselves are then sealed seperately, broken software is still non-returnable. Grand victory for the consumer.
-- 'The' Lord and Master Bitman On High, Master Of All
Ever wonder what happens when an irrestible force meets an immovable object?
I can't wait to see how this pans out.
File under 'M' for 'Manic ranting'
This is nowhere near topic but internet history is being made, check out this web site to see what it's all about!
Does that cover it?
This issue is a bit more complicated than you think.
Daylight is that last things they want.
If you look at some of the outrageous EULAs out there, I can't help but to believe that some of these companies would be embarassed to 'publish' them.
If you (or especially your company) was evaluating products and you could get a copy of all the EULAs up front, don't you think that would be outstanding?
And as far as web publishing, it seems to me that for it to be a legal document, it might have to be digitally signed.
On the other hand if you buy software around the time a EULA changes, there may not be a good way to determine which EULA is in effect. A given package (product, version, release, etc might have to be hardcoded to a special EULA).
I think this is outstanding.
The more opportunity people have to see this crap, the tougher it will be to sell.
eric
And how many other of those so-called "dirty hippies" in the store would be happy to kick your ass up and down every aisle in the store?
If you want to be lazy, and give up your rights under the law, that's your right. Don't demand that the rest of us do the same.
Wal-mart will not allow you to return software that has been opened. Now, what if the software does not work? You're OUT OF LUCK!
Now, we finally get a chance to shove crappy software down Wal-Mart's throat. Unforunately, I live in Virginia where they are very conservative.
Conservative meaning they do not care about individuals rights -- only corporate america.
Maybe i should consider moving.
I'm sure your local retailer won't notice after you do this 50 times. However, this brings up an interesting issue...if you are disagreeing to the EULA, or never do agree to it, are you doing anything wrong by burning a copy and then returning it? After all, you never agreed to be bound by the terms that said you wouldn't...
To fight the war on terror, stop being afraid.
Could a store post a sign at the front door or somewhere in the aisle that says "All EULAs are available at the service counter"?
Now you don't have to open the box, you just have to go to some counter and ask specifically for the EULA. Though, what happens if someone gives you the software as a gift? You would now have to go to the store and get the EULA prior to opening the box as the giver of said gift, probably didn't read the EULA...
Its kind of like the "Nutritional Information" signs at McDonalds... you really have to press to get the information... then once you do, you don't want to eat there.
HockeyPuck ---> .
Its a step and a small one but we've gotta start somewhere. Until a judge forces to these companies to have legal contracts (that y'know make them liable for making damaging software) then we've still got a long ways to go. But like I said, its a start.
The GPL is not an EULA. It's a copyright license. The GPL does not govern how the end user uses a product. It only controls redistribution via copying.
It would almost be better to have people bringing the unopened software back saying something about reading the terms online and not agreeing to all that. When EULA's start translating into lost business they will change.
Big software buyers are also starting to demand changes in the licensing agreements. When confronted with a "if you don't like it get out" from a big buyer companies will roll over. You don't hear about it as much but it's happening more and more. Not as much with MSFT, but if was a deal breaker I'd bet money they'd roll. If anyone else has pushed them on that I'd love to hear about it.
That's our life, the big wheel of shit. - The Fat Man, Blue Tango Salvage
have you seen the size of some of the EULA's, you'll need a manual not just a sticker.
If in doubt just bring a biro along to the shop with you can cross out anything you don't agree to, that's how contract work isn't it?
thank God the internet isn't a human right.
bigger screens on the electronic signature capture pads so they can display the EULA.
"We make our world significant by the courage of our questions and by the depth of our answers." Carl Sagan
I refuse to be bound by a EULA not printed by them, on their paper, and distributed to me. How could end users possibly be expected to prove that the EULA they printed out is exactly the same as the one that was on the website that particular day? If a judge had to choose between a customer-printed copy of a EULA or the "live" version on a website, which would he pick?
No, I think the only sane and remotely legally binding form would be if Microsoft et al printed tear-off pads of EULAs to hand out upon request. This would protect the consumers (they'd have MS's own document) and the vendor (since there's no way the customer could insert their own wording).
Dewey, what part of this looks like authorities should be involved?
(written on the back of a check prior to entering CompUSA)
"By cashing or depositing this check, CompUSA agrees to give me anything I want in the future for free, or, if they refuse to fulfill that requirement, to pay me five million dollars."
"If CompUSA does not agree to this requirement, they should send the check back to the address printed on it without cashing or depositing it. If they do so, they will not be bound by this agreement."
Raise your hand if you seriously think such a thing would stand up in court.
To fight the war on terror, stop being afraid.
Well here (in the UK) the customer is allowed a 'cooling down' period, just incase they were hood winked into signing the contract.
thank God the internet isn't a human right.
I'm in Pleasant Hill, CA - 25 miles East of San Francisco. The nearest 24 hour Wal-Mart?
Stockton. That's a hell of a long way from here.. heh.
Billy's already got that covered. You must enter the secret code number from the "Certificate of Authenticity" to activate your software. If the same number shows up too often, your product will not activate and you'll be redirected to the company store, where you can buy a legal copy (at full list price). Or maybe they just send your name to their lawyers. You'll have to pay up either way.
It's a good job that you can't sign away your rights here in Europe.
I just ignore them, European law also sides with the signatory not the author if there's any doubt as to what was meant, since it's the authors responsibility to make sure the signatory understands the contract.
thank God the internet isn't a human right.
I've got an unopened copy of OS/2 1.3 from way back in the dark ages, and the EULA is folded up and in an unsealed envelope on the back of the shrink-wrap. It seemed a bit much at the time, but I guess those IBM lawyers really do know their stuff!
--Rob
Is there a reason in particular that you can run telnet and not any more capable program combo such as fetchmail+mutt? Or is this just stubborness?
This post written under Gentoo-linux with an SCO IP license.
...I still think there's going to be an EULA inside the wrapper (otherwise people will just claim they ripped the packaging, they never saw no EULA redirect). That is your printed copy. Of course, this means you'll first have to read it online, open it, and read the paper copy to verify they're the same....
Kjella
Live today, because you never know what tomorrow brings
About bloody time, it seems pretty obvious to me that if you can't read a 'contract' before you have to pay for something that you cant return then your statutory rights are not being reserved..
This comment does not represent the views or opinions of the user.
Not everyone's online. Furthermore, that is skirting the legal requirements to begin with- how do you know you're reading the agreement that the software's supposed to have, how can you be sure that others didn't get a better deal than you?
Therefore, in order to fufill the requirements of the settlement, they're going to have to prominently place it in a manner that can be read with the ability to return it to a retailer- period. If that means putting it on there so it'll fit on the outside packaging, so be it.
I am not merely a "consumer" or a "taxpayer". I am a Citizen of the State of Texas
I've actually been in a rather heated discussion with a software retailer. The box I was sold listed under "Requirements" that one must read and agree to the software license agreement enclosed (as well as having 256MB of RAM and 200MB of free disk space, etc, etc). Most don't even go this far, they just spring the legal suprise on you when you open the box.
My beef was that I wasn't being allowed to return the software after having read the agreement that was enclosed. Her argument I was that I hadn't actually paid $99 for use of the software; I had paid $99 for the box, instruction manual, paper copy of the license agreement, and aluminum and plastic disc inside.
The box of paper and plastic had a value by itself even if I never put the disc into a computer, and I couldn't put the disc in a computer unless I agreed to the software license agreement. "So I basically just bought a very expensive frisbee that I can't use or return." I asked.
"Oh yes, you can use it as a frisbee all you want, but you just can't put it into your computer unless you agree to that paper copy of the license agreement."
Well, I can return frisbees, paper, boxes, and books, why can't I return this stuff if I haven't used it on the computer? The software in question wasn't in a sealed envelope. There was no way she could tell whether the disc had been put in a computer or not. I suddenly sensed why this product was no longer requiring me to tear something to signal my agreement with the license. It was more powerful for the manufacturer that my agreement was through an act (e.g. putting the disc into the computer) that couldn't really be verified.
Of course, I didn't get my money back but I was enlightened to the way this retail chain or software manufacturer would argue "proof" of my acceptance of their license.
you agree to the terms of the license inside this shrinkwrap".
Serious. I read that in a computer magazine a few years ago.
(I've intentionally listed terms out of order and added emphasis to make a point.)
In short, Microsoft has the right to change your system in any way they see fit without your knowledge or consent. This includes, but is not limited to, removing your root access. Once they change your system, it is not legal to downgrade to the previous system. Spyware of any sort is perfectly legal if the spyware company is Microsoft or one of its affiliates.
With a license like that, why would anyone use the OS? I did RTFA, and it only shows that the software vendors are being forced to be more upfront with their licenses in stores. Nothing has changed the legally binding status of the EULA. It does not change the fact that Microsoft will ambush you with its licensing changes in security updates and service packs. Perhaps it's time to consider Linux or Mac OS X, eh?
To those who modded the parent down: Please voluntarily stop modding posts. This was not only on topic, but funny as well. It points out how ludicrous the current EULA situation is. I have to agree to things which are not rational if I want to do the most mundane things.
See my journal for slashdot ID's by year. Mine created in 2005. http://slashdot.org/journal/289875/slashdot-ids-by-year
This is something that is a great step in the right direction for the consumer. Realistically though it needs to be a federal law that needs to be implemented to make a big difference.
Got a question about UNIX ask it here : Unix/xBSD Forum
What's the guarantee that the EULA you read online is the EULA that's presented by the software?
What happens if it's revised between the time they print the software, and the time you take it home? What happens then?
Or what about something nefarious? For example: suppose a MITM attack causes every request you make to (for example) MS's EULA site to return an text that states "you must use the software in accordance with copyright law", but then you go to install it, and the EULA includes all of MS's usual onerous terms. Will the store *still* be required to give you your money back?
Or (even better) what if the forged EULA says "instead of installing it, you may make copies of this software and sell it for $20" - what happens when you get busted for commercial copyright infringement because you decided to sell it instead of install it?
Now, I'm not even that devious, but it seems to me a requirement like this could be used to cause a *LOT* of trouble.
too bad it's a settlement. it does not function as precedent for the rest of us.
I purchase a computer or a laptop and don't agree with the Windows licence that invariably comes with it. Can I return it and get a refund on that ? - or do you have to return the whole PC/Laptop ?
" "The Settlement Agreement provides to the General Public of California, amongst other things, the right of consumers to return applicable Symantec, Adobe and Microsoft software for full monetary refunds even if the shrink-wrap has been opened ... In addition, Symantec, Adobe, and Microsoft agreed to provide EULAs for the applicable software products on their web site and notices on their respective software packaging of the web addresses to such EULAs so consumers can review such EULAs prior to purchase of the software." CompUSA, Best Buy and Staples "agreed to provide such EULAS to consumers upon request prior to sale of the above software at their retail stores in California and to provide notices to consumers in such stores to effectuate the above.""
What's to stop someone from taking it home, copying the cds onto their harddrive along with the cd key and then taking the product back and saying they don't agree with the EULA? I don't think it's perfectly legal (at least, once returning it you need to delete your backup) but what's to stop people from doing that? You'd be telling the truth to Best Buy ("I don't agree to the EULA.") so they have to give you a refund don't they?
EOM
...but haven't answered his.
Not only is this the apex of scummyness but the work required outweighs the reward of a free map.
Now, what if that map cost you $50-70? (such as a game)
What if it cost you $100-250 (such as a business application/suite)
What if it cost you $800-900 (such as for a professional graphics suite)
The scummyness never changes, but the work/reward ratio certainly does.
That Jesus Christ guy is getting some terrible lag... it took him 3 days to respawn! -NJ CoolBreeze
They defended the case claiming a EULA, but I'm sure they could have used another method to nix the BnetD guys. BnetD guys are cute when the beta is out, and I've used it before. I like to get a jump on strategy as early as possible. I think the fun of a game is finding the best strategy you can instead of just executing it.
:)
Anyway Blizzard is one of the first gaming companies to use a CDkey that they can authorize on their server. This forces people to buy their own copy to play instead of pirating. BnetD was simply a way to circumvent Blizzard's anti-pirating technique. Under sane law, BnetD should not be allowed to do this. EULA was just an excuse, but I'm sure another method could have been employed.
I wouldn't hold anything against Blizzard for this one. Blizzard was just trying to defend their rights and keep sales up. Blizzard products are quality. If you like MMORPGS, I'd say go buy World of Warcraft. But if you want my honest opinion, they haven't done anything revolutionary yet, so its the same as any other MMORPG, but with the Blizzard name tag on it. I'm trying to convice Blizzard to slap in some flavorful RPG content.
WOW game ideas
God spoke to me
I remember a friend bought MS Flight Simulator years ago (The Apple 2e version, probably about 1985?). On the outside of the box it talked about all of the nifty new features they had in that version, and pictures that very much 'enhanced' the graphics they had at the time.
Inside the box (and the shrinkwrap), they had a little slip of paper that listed all of the features that really weren't included in that version. Useful things, like a sound happening when the plane landed. Apparently the marketing people didn't talk with develpment even back then.
But back to the present: Lets say that you buy a new computer (and are a new computer user), and it gives you a URL to go read the EULA. How are you supposed to read it? Go to the library?
A consumer organization (EFF? Consumers Union?) writes an installer that can be run on various computers.
The installer includes a set of legal principles written by the consumer advocacy organization as well as commonly demanded terms of many software license agreements. Each item has the legalese, an English interpretation of the meaning, and a color-coded, numeric rating from the consumer group as to the restriction or burden is being placed on you the consumer.
The software author's installer package comes with terms it requires the consumer to accept before installing. They can include additional terms not in the predefined set, but these will be flagged by the installer with its most undesirable rating until the consumer advocate has had a legal representative properly rate the desirability/burden of the new term.
If the installer is internet connected, it can contact the advocacy group for updates, send requests to the software author for a list of renegotiated terms which they could approve if they so desired.
Of course, this sort of legal internet negotiation of terms won't even cause the big software houses to bat an eyelid, but I think that small software authors who don't have legal teams for their software will be more inclined to participate in such a scheme. Of course the GNU and BSD licenses will look very consumer friendly under such a scheme.
Maybe this software advocacy group could even offer a comparison of licenses in certain categories. (Mac OS, Windows XP, Lindows or Gimp, Photoshop, Paint Shop Pro, etc).
Who knows, once consumers start putting their needs in the drivers seat and stop being dictated to in terms they can't understand, then perhaps even the big boys will climb aboard and start participating in the system as well (ha!)
Just a thought.
So there's a link to a web site written on the box. Big deal. Do you think the sales droid is going to let me use his/her computer to browse the manufacturer's site in the store before I make up my mind? Yeah, sure.
This is a bandaid. And a poor one at that.
The office I work for pays about $52 for one Microsoft Windows XP Professional license. I'm sure that the OEMs get charged much, much less.
There needs to be appropriate legislation to deal with this problem. Some points that spring to mind:
- EULAs cannot be changed midstream. You release a security fix for product X, it cannot have an EULA applied to it that is more restrictive, in any area, than product X's EULA.
- No releasing of security fixes as a "new" version to work around the above point. New versions should have significantly enhanced functionality; any fixes for security holes in the previous version should be backported.
- The EULA should not prohibit activity that is otherwise legal -- eg, reverse engineering.
- Any significant restrictions on the end user should be clearly drawn to the attention of the end user beforehand, not hidden in the fine print.
- The EULA should be presented to the end user in plain, everyday English, printed on a white sheet of paper in black text. No legalese.
- The EULA should fit on a standard A5 sheet of paper in twelve point type. One side only.
These are just off the top of my head; yes, there may be issues with some of them. They're a starting point for discussion, not a "These will solve all ills" answer.Apparently not even the person posting this story RTFA. Baker and the other plaintiffs entered a settlement agreement with Microsoft, Symantec, et al. Sure, this means that we'll all start seeing a little better behavior from these companies, but it's not nearly as good as a precedential court ruling that would bind future companies operating in California (i.e., all of them).
This is nice, but does little to truly level the playing field for the regular guy. For that, we'd need to be owners of the copies of the software we buy not merely licensees. I'd even take a ruling that said that onerous EULA terms were unenforceable, or better: any EULA term not specifically negotiated by the parties is unenforceable. Now that would be a court victory to celebrate. (And, in cases where the term is imbalanced, is the norm in much of Europe. See the European Directive on Unfair Terms in Consumer Contracts, particularly Article 3, Sec. 1.)
How come when the U.S. has to "harmonize" its IP laws with Europe and elsewhere we only harmonize to the most regular-guy-restricting standards and never harmonize to the regular-guy-protection standards? (ehhrmm...Rhetorical question...)
Like Digital Freedoms? Then donate to EFF before they're gone.
This sounds like it could apply a lot to the situation with the retail version of Half-Life 2 needing to be activated via the internet. People were unable to follow the requirements of Half-Life 2 by it requiring an internet connection. That was a small list of text on the box. I don't think EULA's will ever be something people will pay attention to if they can't even follow requirements.
I don't think EULA's will ever be known by the people bound to them if they remain different for each software application. What they need is more generalization of EULA's so that a person can know one EULA, and know a lot about other ones. I'm assuming most EULA's for a certain type of software follow the same general idea anyways. The GNU GPL is an excellent example. Although most people probably haven't fully read the GPL, I think most people knowledgable with OSS have a greater idea of what that means compared to users of commercial software that each has its own EULA.
In undeveloped countries, the consumer controls the market. In capitalist America, the market controls you.
More fun for the lawyers:
If I go to purchase a PC with preloaded software, I haven't clicked on "I agree" anywhere. I only agreed to purchase a PC from the vendor. When was I given a chance to refuse or even view the licencing terms of whatever software was preloaded? This doesn't just apply to Windows, as there are usually a half dozen or more utilities preloaded along with it. (Usually crap, but that is another matter...) And does this mean PCs with preloaded software can only be sold to those legally of age who can enter into contracts?
My rights don't need management.
Then try one of the other thousands of internets that President Bush talked about.
BnetD was simply a way to circumvent Blizzard's anti-pirating technique.
No, it was a way to play online without being stopped by Blizzard's overloaded servers.
On your logic the author of the author of the first web browser could sue and shut down anyone else from every making their own WWW sever that can talk to that web browser.
Had Tim BL sought a patent for WWW, this would in fact be the case. Does Blizzard hold any patents on the gameplay methods used in Warcraft, Starcraft, or Diablo?
Santa, is that you?
Thank goodness for free software.
You are mistaken. From the Gnu's mouth:
Read it here Look at the second paragraph under section 0.
Otherwise QT would be screwed!
As long as you don't modify and distribute QT or distribute a program that links against it, you are free to do whatever you want with it. If I want to write some software that uses QT and never share it with anyone outside of my organization, I can do that. Heck I can modify QT to my heart's content as long as I don't distribute it outside of my organization.
Fron the FAQ:
In effect, the EULA says that you can use the software by copying it's contents to your hard drive/memory only if you abide by the rules it lays out.
If I don't agree to a computer program's EULA, I can still copy whatever the h*** I want into RAM or to my hard disk, whatever's necessary to run the program. 17 USC 117(a)(1). The only way a publisher can force me to refrain from using a program if I disagree is by encrypting the program and requiring that I agree to the EULA in order to decrypt the software, using the DMCA if I don't.
Regardless of what the EULA says, you should know that you are at the very least expected to be bound by the copyright laws of your country.
If you would like to see the EULA, write the software company for a copy or ask a friend with the same software you intend to purchase lend their copy of the EULA to you for perusal.
Again, why do you care? Would you actually buy the software anyway? Come on, be honest with us and yourself.
Jesus was a compassionate social conservative who called individuals to sin no more.
and by using entirely non-copyright based means of getting that agreement.
Non-copyright-based, eh? What if the publisher encrypts a computer program and claims that any installation that circumvents the EULA display violates the DMCA?
Does 17 USC 117 trump freedom of contract, or does freedom of contract trump 17 USC 117?
After all, we're not the ones sealing the EULA's inside the packaging. We are simply supposed to follow the rules set by the software manufacturers which state that we absolutely cannot return opened software - because there's no way for us to know whether it's been installed or copied. It's simply not possible. I agree one hundred percent that EULA's need to be publicly available before the packaging is opened, and if I were given access, I would most certainly make sure they were accessable in my store to customers. Hopefully this lawsuit will result in access to those agreements and we will be encouraged/required to have them on hand, as we have manufacturer warrenties on hand from each company. I am reminding all of you that this is not a fault of the retailer (although my personal feelings towards Best Buy are extremely negative), but a fault of the manufacturer. There are so many simple solutions to the problems of software theft (or copying), and making those agreements available outside the packaging would be a great step towards protecting the retailers, the consumers, and even the software manufacturers, as they wouldn't have to worry about people making fake returns claiming that they didn't agree with the EULA. I know a lot of you are anti-retail, but consider how little power we have in these situations. Also pity us during the holiday season when we're all worked to the bone. :)
Thank you all.
the stupid pimpleface teen boy running the service desk refused to refund my money even after I explained the research I'd done, and explained that a replacement copy would have the same issue.
Exchange it for another copy of the same title. Then come back on pimpleface's next shift and request another exchange because "this one was broken too". Once enough people have eaten through a large portion of enough stores' supply of that title, corporate will notice.
Forget about EULA, what about the people who object to it and their friend sends them a word doc. , how do we supose to read it, in "notepad". Guess i got to except the EULA now. Dang!!!!!!!!!!!!!!
I am not a legal professional.
I read another comment about shrink wrap licenses being unenforceable. This is untrue. I know people on Slashdot don't RTFA but don't pretend to know the current law on IP/contract law.
In ProCD, Inc., v Zeidenberg 86 F.3d 1447 (7th Cir. Ct. App. 1996) the Court of Appeals for the 7th circuit (Chicago is within the 7th) held, "Shrinkwrap licenses are enforceable unless their terms are objectionable on grounds applicable to contracts in general (for example, if they violate a rule of positive law, or if they are unconscionable)."
ProCD held that acceptance did not occur when software is purchased, but when the user clicks I AGREE to the EULA. Under this holding, customers can get a refund if they do not accept the proposed terms of the contract. This CA case furthers this general view of offer and acceptance under contract law.
For example, suppose I claim that I never clicked on the "accept" button. Could you prove that I did so in a court of law?
Yes. The publisher can prove that the computer program is installed on the computer. The publisher can prove that the installer was encrypted. The judge will rule that decryption of the software without going through the installer is a DMCA violation. Therefore, there is a preponderance of evidence that the owner of a computer either clicked the "I Agree" button, authorized another user of the computer to click the "I Agree" button, or violated the DMCA.
Yeah and my keygen can generate thousands of valid keys.
Unless the installer uses some form of asymmetric key encryption to digitally sign each product key. Then how are you going to figure out the private signing key? Besides, those who distribute keygens in California and the rest of the United States violate the DMCA.
they DO NOT have a database of published keys.
Yet.
Its not a classic paradox, its classic escalation in warfare.
Expect buyers to escalate by buying GNU/Linux PCs instead.
I don't want to go into Best Buy and chase down an "associate" every time I want to know about licensing of a product.
Both Best Buy stores in at least Fort Wayne, Indiana, have a demo computer connected to the public Internet. Bring the package to the computer, type in the URL of the EULA, and see how much you really disagree.
Oops. I grabbed text from the wrong tab. That's part of the LGPL. Sorry.
those under 18 cannot enter into binding contractual agreements... so if my nephew buys a program in the store, and by virtue of installation enters a contract with the software company, isn't that illegal?
guns kill people like spoons make Rosie O'Donnell fat.
Yep, make a single EULA that is government regulated, and that all software falls under. No company can state how their code is to be used.
I know, seems unfair, huh? All those poor companies having the rights of today's consumers.
A government regulated eula would prevent companies from creating this ridiculous BS that is spewed out of their legal departments, while still protecting their software, as well as the end consumer.
This is good news, but it won't necessarily eliminate some of the obnoxious terms found in EULAs. I wonder if another approach might help there. One principle of contract law (at least in the Anglo-American system) is that provisions contrary to law or to the public interest are invalid. (See also 17A Am. Jur. 2d Contracts 257 (1991).) For example, here's a discussion of a case in which a couple had signed a contract requiring that they be faithful to each other and providing damages if one or the other was unfaithful. The man was unfaithful again, his wife divorced him, and then sued to enforce the contract. The California courts refused to enforce the contract on the grounds that it conflicted with the public policy underlying California's no-fault divorce law. The crucial thing here is that the contract was not specifically prohibited by any statute; the court's ruling was based on its inference of public policy.
The courts are careful about taking too broad a view of the public interest for this purpose because if they did they'd effectively be legislating after the fact. For example, they will not interpret a life insurance policy as a health insurance policy even though one might argue that it is in the public interest for death to be prevented rather than the survivors compensated. My question is, are some of the provisions of EULAs sufficiently obnoxious that the courts can be persuaded that they should be invalidated as contrary to public policy? It seems to me, for example, that provisions forbidding the user from monitoring his own network traffic should be considered contrary to public policy since they adversely affect both the individual user and the general public.
Also can you provide a citation to a law that prohibits a person from decrypting content they already own?
It's a federal law, 17 USC 1201, as interpreted in Universal v. Reimerdes.
When's the last time you got a copy of the rental code with your new apartment? Remember how they didn't let you read the lease until you'd already moved in? Oops, turns out to be "No pets". Should I give Muffins away or break the lease and go for another crap shoot?
So, instead of the electronic EULA you're normally forced to read as part of installation, companies can replace that with a "Please see EULA at www.microsoft.com" in small black text at the bottom of the box. That's not technically illegal, but actually makes the EULA even more invisible. Really: out of 100 customers, how many do you expect to go home and read up the EULA online before coming back to buy Norton or Windows? (yes, there's always the few, but I'm certain the percentage is less than 1%).
Who's victory was this supposed to be again?
EULAs that operate on a "click-wrap" basis should be voided by the courts next. There already exists malware that screws with EULAs:1 0/02#a49
http://blogs.law.harvard.edu/rlucas/2004/
You're confusing EULA and Copyright- which are completely two different things.
Copyright deals with the production and distribution of literary and other works of art. Nothing more, nothing less.
An End User License covers whatever in the hell the licenseor wants. It covers usage, etc.
Big damn difference there. With pure Copyright, the rules for use are anything that doesn't infringe- including copying snippets and even copying your friend's instance of the work for your own purpose if it's music (American Home Recording Act covers the compulsory license to be able to do so...). With an EULA, they can prohibit you telling anyone you're a user, whether or not it performs as well as they claim, and so forth.
Come on, wise up.
I am not merely a "consumer" or a "taxpayer". I am a Citizen of the State of Texas
I had bought a piece of software from them for a Palm Pilot. Piece of mapping software. Unfortunately, it was not capable of the advertised abilities, but there was no way to find out until it was returned. Stated policy was if it's been opened, it's a no-return no matter what. Exchange, yes. Return, no. Not willing to see that, no the damn software did not, in fact, work as advertised and it was something that I'd have to take up with the software producer directly (And you all know how that goes...)
:-) it's as much a rental place as it's a store. For software, you're buying a pig-in-a-poke. This is one of the main reasons I switched over to pretty much nothing but Open Source Software where possible.
Flys in the face of the UCC, but I'm not in a financial position to stick it to Fry's over the principal of the thing.
For hardware, depending on values of hardware (Some of that stuff's only got a 15-day rental period...
I am not merely a "consumer" or a "taxpayer". I am a Citizen of the State of Texas
You probably typed that whole thing from memory. How sad.
My understanding, and I may be wrong here, is that EULAs are not enforcable because you didn't agree to them, and have never been successfully enforced. So basically, they're a bunch of bullshit that you can safely ignore.
Now this decision is a great step, if you accept the premise that EULAs have legal merit in the first place, but if my understanding is correct and they do not, then it's a terrible step, because it's establishing a legal foundation for their enforcement.
I'd much rather not be able to return the bloody software and be able to safely ignore the EULA as long as I'm respecting the law of the land than to be forced to accept the legal merit of the damned thing and have the option to return the software.
Considering that a great many of us are required by our environment to use these software packages regardless of how we feel about these agreements, it's giving a whole bunch of new legal clout to untrustworthy companies that never had it before. It lets them place whatever restrictions they like on how you use your computer.
"For security reasons, you are not permitted to install and use this software on machines that also have software not on this list installed."
-1 Uncomfortable Truth
Too bad all of the gnu people don't understand that GPL is a EULA. It's just as restrictive and punative as any commercial license. GNU != OpenSource. Sorry.
In most sane countries I would say that the law doesn't allow someone to contract away the liability of the products they sell, or the fact that it works and otherwise confroms to what is advertiesed. Thus in those countries such contracts (or part of them) would not be valid.
> An End User License covers whatever in the hell the licenseor wants. It covers usage, etc.
Why is commercial software virtually alone (AFAIK) in demanding that you abide by a lengthy EULA written in legalese which demands your firstborn if you use the product?
If I buy a drill from Bosch they don't get me to abide by a EULA which stops me from using the drill for certain purposes, or performance testing the drill against competitors and publishing the results.
The worst thing about these EULAs is that they attempt to infringe your rights as a consumer.
When I get a EULA the first thing I do with it is throw it in the bin. There's a limit (and it's quite limited) as to what demands you can make of a customer who purchases your product (at least over here in Europe).
As far as I'm concerned, as long as I don't make copies of the software to distribute, then I'll do what I like with my copy.
I also hold an entitlement in law to return a product which is "not fit for purpose". My opinion is that XP falls into that category - certainly without SP2 (hook up to 'net and get owned in minutes). Irrespective of the MS EULA saying that the software may not be "fit for purpose" and you have to accept it "as is", I hold an inalienable right in British consumer law to return stuff to a supplier if it's not.
The MS EULA as it stands is an unfair contract and it would get struck down in a British court if they tried to enforce the unreasonable parts. The shameful thing is that these EULAs give consumers the impression that they have no rights once they've "agreed" to the EULA. That's misleading bordering on the criminal IMHO.
One question: Why don't the FSF make a legal attack on these EULAs which do so much to infringe customers rights?
The Machine stops.
So there's a link to a web site written on the box. Big deal. Do you think the sales droid is going to let me use his/her computer to browse the manufacturer's site in the store before I make up my mind? Yeah, sure.
Yeah, sure. If you'd RTFA, you'd know that CompUSA and Best Buy also agreed to have copies of the EULA available in-store and to post notices to this effect.
I hereby place the above post in the public domain.
Mate, if you need a gmail invite, leave a response.
ich bin der musikant
mit taschenrechner in der hand
kraftwerk
And I can understand why it's so for you.
Many proprietary software companies operate by talking out of both sides of their collective mouths. They say buy the new version or product, when in reality, they're trying to get you to renew a lease of the stuff instead. Well, at least that's what the EULAs really claim.
I am not merely a "consumer" or a "taxpayer". I am a Citizen of the State of Texas
Because it might undermine their precious GPL too. You'd have to get the more laid back BSD guys to go for it.
Actually, the agreement was also that the consumer should be allowed to return the product for a refund.
> Because it might undermine their precious GPL too
How so?
The GPL gives you additional rights over what copyright grants you. You can still use GPLed software without accepting the license, you are however limited by copyright law with regards to redistribution in that case.
The more convincing reason for the FSF to not do this is that it simply is not their business. They want to make and encourage 'free' software, and have an issue with certain limitations dictated by copyright. EULAs do not come into the picture there at all.
The proper kind of organisation to act on this would be a consumer interest group.
"So exactly how is a _customer_ expected to get a fair-shake when they are required to _not_ purchase a product until they hired a lawyer who goes to the companies web-site and interprets the EULA for them?"
While I agree with you, perhaps until the madness ends:
Consumer Reports - EULA Division may help. (or something similar.)
A Nony Mouse
shrinkwrap be damned.. If I am expected to agree with a set of conditions in order to use the product I have paid for, then these conditions had better be made clear both in advertising materials AND at the point of sale.
If not, I've already bought it, and my standard purchaser's rights under the UK Sale of Goods Act of 1972 are unaffected - if the goods are not of 'merchantable quality' (and by that the law means what *I* reasonably expect), then a cash refund is mine without question.
Conditions applied after the purchase (shrink wrap..) are not valid in any way. If I wear a small patch inside my overcoat that says "by selling me software you agree to give me 20% of the gross income of your company for the next ten years", does that mean it's legally binding?
How about having them resend it in text format. Dang!!!!!!!!!!!!!
return defective, as in buggy, software
I had this happen to me, the entire run of a game was defective in the copy protection department(IE the software thought the original was a copy). I ended up exchanging all copies of the game as defective. It went quicker once a manager with a clue looked at the sheet from the manufacturer's website showing the bad pressing...
Ah, I remember when I had more time than money...
I don't read AC A human right
Sheesh.
...if you got a new computer with it preinstalled, and once you hooked to the net you decided (for obvious reasons) that you still liked the computer but hated the pre installation and wanted that *portion* of your money back.
It's time software that was allowed on the internet came with a default warranty as to suitability for purpose. They advertise it as "get on the internet and browse and get email", but you cannot adequately get on the internet and browse without getting owned. I think there's a major class action there. The software industry as a whole has gotten away with no warranties for too long now, the industry is mature enough to deal with it, especially some company that has made more than a trillion on it along with their partners in scams, the box vendors who have forced this unsuitable product on an unsuspecting public.
Whether or not a customer can read the EULA is not exactly the point,it's part of it but not the main point, it's the bogus "nothing is our fault" fine print in the EULA that's the real question.
Here's a nice scenario, you need a camccorder. Buy a cheap box with it preinstalled, even agree to the Eula on tape. Hook to the internet, videotape and screen capture what happens. Take the box then to three independent whitebox shops have them state what has happened to the box with the various malwares and whatnot. Use that evidence to challenge the "not my fault, as is, no suitability for purpose, etc" provisions of the EULA "license". I think it should be taken all the way. The various companies want to patent their products, profit from them, they should have normal minimum warranty laws apply. If you get damaged-your box gets hosed-that's above and beyond replacement costs, especially if you are a business trying to use it, and you can also show (which should be easy) that it's industrial monopolistic collusion that has allowed it to happen.
I'd really like to see something like that happen, shakeup the entire IP patent and EULA and whatnot "law" situation.
Right now the EULA merely states in many and diverse ways the old "caveat emptor" which dog don't legally hunt in any other product situation. The ruling in the article merely makes it somewhat easier for the person to read that they are still in a cybersnakeoil "caveat emptor" situation.
If the buyer doesn't have internet access, most stores that sell software products do have access in the store somewhere, if only on the demo computers they've got set up. If the only internet access is on staff-only machines, you can always ask one of the employees to look up the EULA for you and print it out. Most employees will be good enough to do this, especially since the sale of the $1000 Adobe Suite that you're looking at will seriously help their commission.
And don't forget: copyright doesn't prevent you from installing and using the software you bought. The only thing forcing you to agree to the EULA is that damn click-through thing.
Is a click legally binding? Is it a valid contract if there is no consideration? We'll find out when the lawyers/politicians get done. (Hint: if it isn't now, it will be.)
Indeed you can except [2, v] it, if you'd use Openoffice.org.</pedant>
MSIE: The world's most standards-complaint web browser.
...fining people for not taking refunds on software? That is CRAP. No one has to refund -anything-. Ever. All that will do is incite every joe blow on earth to pirate every piece of software that they want. Buy it, install it, return it. But it, copy it, return it.
Serious, serious problems.
"Champagne for my real friends - and real pain for my sham friends!" http://ericblade.postalboard.com/
for the people named "Eula".
Furry cows moo and decompress.
No other (consumer) product besides software makes you sign a contract before you're able to use it. Services maybe have terms and conditions: "We'll cut off your service if you do something we don't like", but not products.
If piracy is illegal, why do they need to spell it out in a EULA? If it's illegal, it's illegal, regardless of the specific product. The truth is, the EULA's sole purpose is not to enforce the law, but to give special rights and privilages to software companies that they shouldn't have in the first place. Why should software companies get rights that other companies don't get?
It's bad enough that the average person often has to hire a lawyer to be able to understand the law. But imagine what would happen if we had to remember which laws applied to which products! "Now let me see, do I have the right to copy this product 3 times or was it only for that one? Hmmm. Let me go ahead and spend another 10 hours looking through my EULA collection to refresh myself of the exact wording."
Utter BS.
The last time I got to unpack and install a new Dell machine, the first thing happening when turning it on was it presenting me with a EULA
That's very interesting.
My understanding is that what makes EULAs stick is that you are attempting to do something, of which the right to do is not held by you but by somebody else. Agreeing to the EULA means that the owner of that right gives you permission (licenses you) to perform that act.
Normally, that act is installation which requires that you copy the software; the right to copy that software is owned by the copyright holder.
Now, if windows is installed on a machine that I bought, exactly what is the act I am performing that infringes on the copyright if I simply ignore the EULA? I am not copying the software.
Article 1 Section 8 of the Constitution does not give Congress the right to abritrarily regulate how individuals use their private property, nor to grant that right to anyone else. Publishers create this right for themselves by leveraging the more narrow right to restrict copying.
It would be possible, I guess, to put an inactive piece of software on one disk partition, and on startup copy that software to a different area of the disk in response to the user acknowleding the EULA. I'm not sure this would work however if it is just "click OK" and your software will be installed for you. I'd think you'd have to make the user (1) click OK and (2) then explicitly do the installation as a second step; otherwise I'd argue that the manufacturer was doing the installation via the EULA software and not the user, who just clicked on a null contract.
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.
California court judgements are notoriously worng. MOre than half of the circuits decisions are inevitably found incorrect and struck down in federal appelate court. These are exactly the type s of judgements that get struck down too. The ones that benefit you and I , the common person. We need to change the constitution from, "for the people, by the people" to for the companies, by the companies with help from the justice system". This ruling won't stand, you watch. It removes to much power from the people who run the show.
Yes, I agree with this. I RTFMed and it's great that MS et. al. have to post the EULA on a website. Woopee! But it doesn't help me when I'm in the store looking to purchase the software. PUT A STICKER ON THE BOX that instructs the prospective customer of the BASICS of the EULA. Hell, even cigarette boxes have warnings on them :-)
This still doesn't address the fundamental problem of the draconian terms found in most EULA's. The fact that the user can now read the EULA prior to sale makes it all the more likely that even the worst terms of the EULA (especially those regarding no-resale, reverse engineering, etc..) will be enforceable in court.
Recently, Microsoft made available development tools with the restriction that the user not use them to develop any GPL or free software. In the future, a person who merely uses Windows may be prohibited from ever developing free software by "virtue" of the Windows EULA. Since these agreements are now on public display, it is even more likely that the courts would consider them valid, no matter how egregious the terms.
The society for a thought-free internet welcomes you.
The easiest solution is to get rid of EULA's, then the problem is solved.
It seems software producers want special status. And given MS's track record when it comes to software, they already have a "special status". Its called "Garbage".
Every *gets* that part.
The trouble is the EULA says "if you do not agree, then return it for a full refund".
Well, what happens if the retailer says "Gee, that's fine you didn't agree to the EULA, but that has nothing with me, I'm not giving a refund.
And that's why this all happened.
Try to keep up. Okay?
Pardon me for my overt obivousness... but why cant the just print the EULA on the back of the package... I realize you won't get the pretty pictures of the operating system features in action, but at least you wont have to travel a hundred miles climb a mountain and have the EULAlama decipher it for you before returning to the store to sign a few hundred documents and then have to go through the pain of unlocking your software just so you can use it...
How many boxes will they be able to push, given the current length of the EULAs? In other words, the only way they can keep sales up is to make the EULA no longer than the blurb on the back describing the product.
It's a small world and it smells funny; I'd buy another if it wasn't for the money; Take back what I paid (SoM)
Software companies aren't totally alone in this. Ferrari has gotten away with a similar set of rules for years with it's more rare models. They agree to sell you a new Enzo for $750,000 + any dealer fee and you can't put it on ebay. If you do typically Ebay gets a letter from Ferrari's lawyer saying the auction infringes on their rights and ebay kills the auction. .. They did something similar with the F50 a few years ago. Magazines wanted to test one and Ferrari wouldn't release one for testing. Many felt this was due to the F50 being slower than the car it wwas replacing - the F40. Owners of F50's were told in no uncertain terms that allowing media access to an F50 would result in swift action by Ferrari....
Personally I think they are out of line too - but I just posted this to show other's do try and force customers to follow their rules. Despite the law in the US allowing car owners to get oil change anyplace without voiding the warrantee, if you take an enzo to jiffylube Ferrari will not honor the warrantee..
Copyright deals with the production and distribution of literary and other works of art. Nothing more, nothing less.
Or at least it did until various interests lobbied for it to be extended to cover other things.
An End User License covers whatever in the hell the licenseor wants. It covers usage, etc.
Or at least whatever they want which is in accordance with the "law of the land". But you may well need a lawyer to work out how things apply.
With pure Copyright, the rules for use are anything that doesn't infringe- including copying snippets and even copying your friend's instance of the work for your own purpose if it's music (American Home Recording Act covers the compulsory license to be able to do so...).
With pure copyright "per seat" systems would be tricky to support. Especially when the software was only used by one (corporate) "person".
Because it might undermine their precious GPL too.
The GPL is not an EULA. It is a document which says under what conditions you may distribute someone else's copyright works. Comparing the GPL with an EULA is like comparing apples and rocks.
Anything which threatened the GPL would also threaten broadcasters, book publishers, all of the RIAA & MPAA members, etc. i.e. any business which relyed third party distribution of copyright materials with the written agreement of the copyright holder.
URL:http://www.securitysoftware.cc/apps.html
see ENABLER
Not quite, really, since internet connectivity cannot be required as prerequisite to the negotiation phase of the so-called EULA. Well, they may put your phraseology on the box. But it won't mean anything. At least, not anything more than the previous unenforceable system.
Voila, a box of emptiness!
Right. Cause thats happening now with the PC's they already have and free downloads. There's reality, then there's slashdot "reality".
You're not seeing mass migration to GNU/Linux yet because Microsoft hasn't escalated its side of the warfare to a similar extent. But watch out come Longhorn release.
Before, it was a slam dunk: if I couldn't read the EULA until after I'd bought the software, there wasn't any way the software company could claim I'd agreed to it by buying the software. Now, they can make that argument.
What we need really is a clear-cut decision that, unless I actually sign some other agreement before I fork over my money and walk out of the store with the software package, what occurred was a sale under the terms of the UCC and my rights and responsibilities as a buyer are those laid down by the UCC. That I am the owner free and clear of that copy of the software with the right to use it with no more need for a license than I need a license from the author of a book to read my copy of it, and that that EULA is an additional and after-the-fact contract that I'm free to refuse to agree to without affecting the sale that's already occurred.
Universal v. Reimerdes is a lowly Federal District Court Case fron New York
Universal v. Reimerdes was upheld on appeal. Yes, the EFF intentionally held off on seeking certiorari until it could get a number of conflicting opinions among the appeals circuits.
But the big problem here is that when the plaintiff has access to much larger financial resources than the defendant, the plaintiff can dilate the litigation and in effect win by default. Would a developer of an "installer EULA circumvention device" be able to put up a defense against the bottomless pockets of Microsoft Corporation?
Best Buy/Fry's/Uncle Earl's Software Emporium is not the party trying to get you to agree to the EULA, they have _nothing_ to do with the EULA. Why would they waste their time/money printing a EULA?
Remember, you are _not_ buying the software from Microsoft or whoever made the software, you are buying the software from Best Buy/Fry's/Uncle Earl's Software Emporium.
I Norway an EULA presented after purchase is not valid. I don't even have to return the product if I do not agree to the EULA, I can just ignore it. Of course, most EULAs just mentions the same stuff we already have by law here (regarding piracy and stuff like that).
One question: Why don't the FSF make a legal attack on these EULAs which do so much to infringe customers rights?
My guess would be because either they have no legal standing to sue unless some company tries to enforce the terms of the EULA (which they never do since most of the terms would be shot down as fast as they could be read) or it is because it would serve no strategic purpose. This could be because even if the have an EULA invalidated, there is nothing stopping the company from just changing the terms and shipping another one. But hey, I'm not a lawyer, so maybe there is one reading this that can give you something better than conjecture.
The average number of pages in the EULA included with a pirated DVD sold in Russia: 0 (zero).
The average amount of money you are charged for changing a returned CD or DVD for another one: 1 dollar.
The average number of minutes spent discussing the return with a salesperson: 2 minutes (includes explaining which disk you want to have instead).
The probability that you'll be able to exchange the disk in a different store than you purchased it in: 30%.
The number of lawsuits against software manufacturers for violating some implied warranty, justifying the need for stronger EULA enforcement laws: 0 (zero).
The number of customers, who are willing to be fucked in the ass by software publishers, as long as (for an extra charge) lube is provided: 750 million.
Future Wiki -- If you don't think about the future, you cannot have one.
Unless the manufacturer has a policy of accepting opened merchandise, I'm out money when it's returned. If the product is defective, I'll take it back
I take it you're selling software? If the item is defective, presumably you get credit/refund with the distributor/manufacturer?
So, would a hypothetical person in your shoes really care if an item was defective or got that way from, say accidental and unknown exposure to microwave radiation? It sounds like that's the end-run around the impossible EULA situation.
My God, it's Full of Source!
OUTSIDE_IP=$(dig +short my.ip @outsideip.net)
If your purchase is genuinely defective, you can STILL return it, because the law says you can.
return it or exchange it?
It's easy to say it's defective, but some stores will only give you another copy.
If I bought a table from walmart and it collapsed and caught fire the first time we set dinner on it, I'm sure not going to expect to use another table from that manufacturer. But with software, they expect you to.
My God, it's Full of Source!
OUTSIDE_IP=$(dig +short my.ip @outsideip.net)
This is, in many ways, like the surgeon general forcing cigarette makers to put cancer warnings on their packaging: It ended up absolving them of legal liability.
Now that the EULAs are referenced on the outside of the package, there is more of a chance that they are legally binding, not less.
Of course, one could have a lot of fun with this, too:
Go into a store.
Ask them to print out the EULA for you from the web.
Study it for a while and ask the saleman a lot of questions... then "decide" not to buy the software because you can't understand the EULA.
An engineer who ran for Congress. http://herbrobinson.us
what if you are buying a _computer_ and you don't have access to the internet? Exactly how do you get online to see this "great" EULA?
See this Slashdot story. A new PC displays a screen on startup telling the user to press a key to continue. The user is told that doing this indicates acceptance of the EULAs for the software included with the system. However, the owner did not want to open the shrinkwrapped software containers and so it was difficult to read the EULAs. Customer support assumed that the user was looking at a different screen. The user was told by tech support to press a key even though they had not read the EULAs.
It might mean having to find public Internet access i.e. at a library, and hoping that the EULAs are available online.
Ed Foster of InfoWorld has written about EULAs for things besides software. Items such as vacuum tubes, digital cameras, and even books have had licenses applied. There was one case where an individual was sent a medical book, unsolicited, with a license agreement attached. The individual was not a member of the company that had produced the book. It appeared that keeping the book or disposing of the book would both violate the license either way. (Note: US postal regulations allow unsolicited mailed merchandise to be treated as a gift, with no obligation for return.)
Why do you need any EULA at all to start with? Appearantly almost any other bussiness in the world manage fine with out page after page with contract text and they seem to do just fine.
In addition, large portions of the EULA is just retelling what is allready the law. Another large portion is against the law or for other reasons would not be enforcable. WHat is left, well, why would you need it anyway? It is not like the world would go under and appearantly most other bussiness do just fine.
I disagree. I doubt he ever learned how to divide. Remember "Fuzzy math"?
if anyone agrees to an EULA.
We might be living in a fairly bizarre world if people actually live by the letter of EULAs.
Software creators hope that some people don't abide by the terms of the EULA. Software that is heavily copy protected doesn't proliferate well in the market.
Know your pads. One time pad: good for cryptography. Two timing pad: where to take your mistress.