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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."
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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
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.
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.
Our intelligent designer has never created an animal that we couldn't improve by strapping a bomb to it.
...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...
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.
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/
"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.
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
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
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?
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 ---> .
Actually, courts are upholding EULAs (even those undisclosed at point of sale) as enforcable. I would love to back you and say "Screw EULAs!", but recent events like those on 30 Sept. are reminding us that courts are increasingly siding with the big companies on this one.
More disturbing, it is extremely important to understand what the EULAs say more than ever before, because companies like Blizzard are injecting clauses into the EULA that explicity say that by clicking "OK" and using the software, you are giving up specific rights like your right to reverse engineer for interoperability, and your rights protected under the first sale doctrine. This came out in the recent decision in the Bnetd case.
In fact, multiple provisions protected under copyright law and the DMCA that allowed certain actions are being specifically forbidden in EULAs because companies don't want you to reverse engineer their products, no matter what. Courts are allowing you to "sign" away these protections allowed for in federal law in EULAs, even if the EULA was not available at point of sale.
This isn't a great forum to discuss this type of thing because it is really quite intricate, but I did write two pieces on this in my blog over at Etherplex that treat it in more detail. If you're not in touch with what the courts have been doing recently, it may be of interest.
(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.
How many court cases have there been to seek damages from someone who didn't uphold the EULA?
Forgot about this one?
Yeah, it's under appeal, but the bnetd guys lost big on this one, because the EULA was violated in the creation of a competing product. The lower court ruled that the EULA was absolutely enforceable, and that the bnetd guys were absolutely bound by it.
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
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