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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."
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.
Yup, all it means (from the article) is that the companies are now putting their EULAs on their websites and a sticker or label on the box that says "the EULA is here (insert URL), you may wish to check it before purchasing this product".
Not exactly a vast improvement...
N.
"Nothing strengthens authority so much as silence." - Charles de Gaulle
...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...
If the EULA's are no longer valid, than spyware can be interpretted as a worm or trojan horse which would make the programmers and companies who write teh software liable for criminal and civil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/
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
This is why you do not actually purchase teh software.
Just a copy of it so First Sale doctrine does not apply.
Here we go again...
Ask Best Buy if it's a sale. (It is.) Ask Fry's if it's a sale. (It is.) Ask a Federal judge if it's a sale. (It is.) If it looks like a sale, it's a sale. You think Best Buy would refuse to sell software to my kid, who, being under eighteen cannot enter into a license agreement?
Legally, there are certain requirements for a contract, which is what a EULA is. Trouble is, EULAs don't meet the criteria. (Must be able to negotiate, must be of legal age, must show proof of acceptance of terms, must actually know who you are entering into an agreement with, etc.) EULA's are totally fiction. How many court cases have there been to seek damages from someone who didn't uphold the EULA? How about zero? Why? Because the publishers know they would lose and that would deflate the perception that these things are meaningful in any way.
Kind of weird, huh?
"If you don't agree you can then bring it back and not have any issues because the package is not open."
Why do some think this is an acceptable business practice?
"Derp de derp."
Also moron, is every "consumer" expeted to be a lawyer or hire one before each purchase? Have you ever read an EULA from MS or any other big corp? They are not written for the average user to understand. They are written in lawyer-speak. 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?
If Tyranny and Oppression come to this land,
it will be in the guise of fighting a foreign enemy. -James Madison
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