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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."
What's next? Will we have to read and agree to the EULA before we can buy?
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.
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.
Our intelligent designer has never created an animal that we couldn't improve by strapping a bomb to it.
I think a lot of people are more concerned with Microsoft's Trusted Computing Initiative, which, according to GNU advocates, means your computer essentially does not belong to you - that is, they have ultimate say over what code you run and what you do not. EULAs, especially shrink-wrap ones are a conveniant way to slip this in. By opening, say, a brand new computer with TC built in, you would be agreeing to the EULA, therefore signing over your rights to your own machine. This isn't a problem for most consumers, but I think all would, if they knew about it, be very angry at having it shoved down their throats.
As I recall, shrink-wrap EULAs were a key part of the DMCA, so if this is a step towards taking that down, rock on.
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.
It's things like giving them permission to check your computer for their software that I couldn't handle.
For example, I signed up for a hotmail account many years ago, before most people had any idea what hotmail actually was. Recently the 30 or 60 days or whatever had elapsed between me actually looking at the my mail there (mail? spam!), and so the account expired. I was given the opportunity to keep my account name, but I had to agree to a Microsoft EULA. So, I actually read it.
Basically, signing it gave Hotmail (and MS) permission to search my computer to make sure the software I was running was "legitimate" or something and then act on this information if they found anything.
Screw that!
Of course they wouldn't actually have been able to *do* that, and I don't run any MS software anyway, but buggered if I'm giving them permission to have a look at some point if they work out a way to do so.
"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.
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.
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
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'
That might be fine for you and I, but my mum doesn't want to be told "go read the EULA on this Web site" before she buys a copy of MS Word. Is the sales rep going to bring up the site for her on another PC and wait for 30 minutes while she wades through the wording? Is she going to be expected to go home, get onto the Internet, read the agreement, then come back to the store and buy the software? Will the sales rep be expected to answer questions about the EULA, because he's sure as hell going to be asked questions by people who don't understand what they're reading?
I'd guess that this way of presenting legal info is probably also insufficient for it to be binding. Hopefully it'll be tested in court soon...
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 ---> .
(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.
Solution: don't buy from Wal-Mart. Period. It's like stabbing your children or grandchildren in the back. I shouldn't need to elaborate.
(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 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.