Slashdot Mirror
End User License Gems
satosphere writes "TG Daily has an article on EULA Gems, priceless statements that companies want you to agree to in their End User License Agreement." From the article: "You agree, if purchasing by credit card or charge card, that you permanently and irrevocably waive any and all right to cause a 'chargeback' ... You agree that, if you institute such a "chargeback", it constitutes a material violation of this license, and damages Company in ways impossible to calculate, and with long-term adverse effects to the Company."
This is in MOST MS agreements
You may install and use one copy of the software on one device. You may install multiple copies of the software on one device provided that you have a license for each copy.
You may install and use a second copy of the software on a portable device for use by only the primary user of the first copy
It pays to read the ms ones if you have a laptop. This is in Dungeon Siege (I & II), in XP Pro and Home, and Office.
Aaron McKenna
22 Oct 2005 13:22
AaronThe End User License Agreement. You probably have grown accustomed to clicking through on these when installing new software, so accustomed that you don't even read them anymore. Well, we have and here are some of our favourites. We also present them with simultaneous plain English translations.
Do not criticize this product publicly
There are in fact clauses within EULA's, including a number by Microsoft in the MS XML and SQL Server EULA's, which state that [you] may not without Microsoft's prior written approval disclose to any third party the results of any benchmark test.
In other news, half the staff of Tom's Hardware Guide have been sued, arrested, jailed and hit on by their cell mates.
Free speech? Heh, not bloody likely under the EULA... man.
Do not use this product with other vendors products
The reason that software vendors don't want you or I to use a program in conjunction with another one is so that for example you don't go out with a packet sniffer to discover all that malicious spy and adware running alongside the piece of software you've just installed.
For example take a Claria EULA:
You agree that you will not use, or encourage others to use, any unauthorized means for the removal of the GAIN AdServer, or any GAIN-Supported Software from a computer . . . Any use of a packet sniffer or other device to intercept or access communications between GP and the GAIN AdServer is strictly prohibited.
Oh, and by the by, "sniffer" is a trademarked word, guys.
When your computer dies, it's not our problem
Oh, well, this is reassuring. "We're pretty confident in our software, but if it happens to entirely accidentally turn your machine into a cold fusion reactor and open up a hole in space, you cannot, we repeat, cannot hold us responsible."
As an example, let's look at a typical clause in the Windows XP EULA:
Except for any refund elected by Microsoft, YOU ARE NOT ENTITLED TO
ANY DAMAGES, INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL DAMAGES, if
the Software does not meet Microsoft's Limited Warranty, and, to the
maximum extent allowed by applicable law, even if any remedy fails of
its essential purpose.
Dude, where's my computer...? Well don't ask Microsoft, that's for sure.We'll make any changes to this agreement we like, and you've just agreed to them
Take for example Apple's service agreement for iTunes:
Apple reserves the right, at any time and from time to time, to update, revise, supplement, and otherwise modify this Agreement and to impose new or additional rules, policies, terms, or conditions on your use of the Service. Such updates, revisions, supplements, modifications, and additional rules, policies, terms, and conditions (collectively referred to in this Agreement as "Additional Terms") will be effective
immediately and incorporated into this Agreement. Your continued use of the iTunes Music Store following will be deemed to constitute your acceptance of any and all such Additional Terms. All Additional Terms are hereby incorporated into this Agreement by this reference.
So, if we happen to install Ming the Merciless as our CEO and President for Life all you iTunes users shall be doomed to spend the rest of eternity listening to 90's pop music.
We're watching you
Some EULA clauses allow software manufacturers to monitor your machine at will - DRM being a good example - and send data back and forth at will. They can even download new content onto your machine without having to notify you - anything from an innocuous patch to full blown spyware.
For example take Section 6 of the Pinnacle Studio 9 movie-making EULA:
You acknowledge and agree that in order to protect the integrity
of certain third party content, Pinnacle and/or its licensors may
provide for Software security related updates that will be automatically
downloaded and installed on your computer. Such security related updates
Love this one they added to WoW. Every once in a while there's a huge fuss about Blizz's "Warden" program. Anyways here's the TOS excerpt:
:)
A. WHEN RUNNING, THE WORLD OF WARCRAFT CLIENT MAY MONITOR YOUR COMPUTER'S RANDOM ACCESS MEMORY (RAM) AND/OR CPU PROCESSES FOR UNAUTHORIZED THIRD PARTY PROGRAMS RUNNING CONCURRENTLY WITH WORLD OF WARCRAFT. AN "UNAUTHORIZED THIRD PARTY PROGRAM" AS USED HEREIN SHALL BE DEFINED AS ANY THIRD PARTY SOFTWARE, INCLUDING WITHOUT LIMITATION ANY "ADDON" OR "MOD," THAT IN BLIZZARD ENTERTAINMENT'S SOLE DETERMINATION: (i) ENABLES OR FACILITATES CHEATING OF ANY TYPE; (ii) ALLOWS USERS TO MODIFY OR HACK THE WORLD OF WARCRAFT INTERFACE, ENVIRONMENT, AND/OR EXPERIENCE IN ANY WAY NOT EXPRESSLY AUTHORIZED BY BLIZZARD ENTERTAINMENT; OR (iii) INTERCEPTS, "MINES," OR OTHERWISE COLLECTS INFORMATION FROM OR THROUGH WORLD OF WARCRAFT. IN THE EVENT THAT WORLD OF WARCRAFT DETECTS AN UNAUTHORIZED THIRD PARTY PROGRAM, BLIZZARD MAY (a) COMMUNICATE INFORMATION BACK TO BLIZZARD ENTERTAINMENT, INCLUDING WITHOUT LIMITATION YOUR ACCOUNT NAME, DETAILS ABOUT THE UNAUTHORIZED THIRD PARTY PROGRAM DETECTED, AND THE TIME AND DATE THE UNAUTHORIZED THIRD PARTY PROGRAM WAS DETECTED; AND/OR (b) EXERCISE ANY OR ALL OF ITS RIGHTS UNDER SECTION 6 OF THIS AGREEMENT, WITH OR WITHOUT PRIOR NOTICE TO THE USER.
Nice, no? Of course "WE NOW OWN YOUR COMPUTER GG NOOB" would have been shorter and more to the point, but it doesn't sound nearly as eloquent.
http://www.tgdaily.com/2005/10/22/rtf_eula/print.h tml
Everybody's a libertarian 'till their neighbour's becomes a crack house.
About the most egregious license agreement comes from Skype, which all but says they own your computer. Basically, they assume the right to all "computing resources" while you're running the program. They take advantage of this to turn PCs with high bandwidth into relays for chatting pairs who are both behind firewalls, and to turn random systems into directory nodes, suffering sudden influxes of upward of a thousand connections.
(ahem sorry for being picky here but the GPL isn't an EULA but a copyright license)
http://www.geocities.com/external45739/Disagree.zi p
- Enables disabled buttons (like "Next" even if you don't select "I agree")
- Makes EULA edit boxes editable again
- Saves and prints EULAs
You're kidding, and you're funny, but I'll say it nicely so someone else doesn't say it meanly:
The GPL is a license to distribute, and not a license for end users. Whether or not there's a legal distinction is beyond the scope of me.
IANAL. However, I am a law student.
To respond to your post: actually depending on your jurisdiction, it may be a binding contract. One of the keys is that acceptance of an offer to contract may be manifested by conduct. Some courts have recognized that conduct as running the software and/or failing to return it. However, the EULA is still vulnerable to the doctrine of unconscionability, among other reasons for a court refusing to enforce a contract.
Perhaps the seminal case on the subject of EULAs is the 7th Circuit Court of Appeals decision ProCD v. Zeidenberg , from 1996. I dissect that case (and my strong opposition to it), in this episode of my podcast.
Courts have not been consistent with their treatment of EULAs, so what the law is will vary based upon where a case is brought. At the tail end of the ProCD episode I outline some of the ways we can legally fix the damage caused by EULAs.
- Neil Wehneman
My legal education, in nifty podcast format
Under Australian Law at least, the contract formed by the sale goods has three phases:
1) Invitation to treat - ie - Our software costs this much if you want it.
2) An offer - Buyer offers vendor/retailer consideration (cash/credit card) for the product.
3) An acceptance - The vendor/retailer accepts the offer, and supplies the goods.
At this point, the contract has been executed.
The vendor cannot now impose restrictions on the use of the product unless they were made clear to the buyer as a condition of the contract. Naturally, this excludes their rights under the law (ignorance of the law is no defense, however failure to adequately disclose an express term of a contract is.)
So anything that is shrinkwrapped is not valid as it did not form part of the contract of sale.
EULAs that display on websites prior to hitting "buy" however ("Click Through" agreements) are a different story, and you'd have to turn to consumer legislation and equity provisions in contract law to see whether these are enforceable or not. In general, if it interferes with a buyers right to enjoy their property, it will be illegal. Thus we get into the whole "What is property?" debate. This is far from being settled.
There. Now I feel like I've done some study for this bloody legal studies exam in 9 days time.
Norman Cook's Ode to Sl
Well for something to be a contract there's a number of things that are generally required:
1) It has to be an exchange of things. Contracts don't say "I agree to give up all this and get shit in return" it's always an exchange. When I first bought a house, my parents helped me purchase it since my credit wouldn't allow it on my own. Later, I refinanced it to my own name, which meant they had to quit their claim to the house. However the quitclaim contract didn't say they just gave it over, it said in exchange for teh sum of $10 and other consideration they gave it over. Reason being had there been no exchange, it wouldn't have been a contract.
2) It has to be before the fact. You can't try and spring a contract on someone after the deal is done, you have to has it out prior to the deal going down. Hence the point of prenuptial agreements. They are contracts that place conditions on a marriage. However to be valid, they have to be signed prior to the marriage. You can't get married later and then tell your wife "Oh, and here's the contract you agreed to, sign it" because she DIDN'T agree before the fact.
3) It has to be mutually agreed upon. This means that BOTH parties have to find it acceptable, and veryify this, generally with a signature. In the case of important contracts, it's a witnessed, notarized signature. One side cannot simply tell the other side how it's going to be and give them no ability to back out. Both sides have to agree it's a fair contract.
4) Along those lines, it has to be open to negoation. One side can't present the contract to the other side and force them to sign it. You can modify a contract and send it back. They don't have to accept your changes, but the process has to be allowed.
Thus EULAs basically fail ALL of these. The exchange (money for goods) has already taken place before you are asked to agree, and they aren't offering you anything, simply making demands of you. There's also no proof you agree (clicking a button isn't proof, what if someone else clicked it?).
My bet is the "after the fact" nature would be enough to invalidate any outlandish provision of a EULA. Since you didn't sign the contracts as a condition of the sale, it's not a valid contract and you aren't bound by it.
That doesn't mean none of the provisions are enforcable, some EULAs just enumarate the laws that govern software anyhow, you can't make illegal copies and so on. However when they are demanding you give up rights you normally have, it probably wouldn't hold up.
Now this is different than, say a credit card. Some people note that there's an agreement on those and they make you accept it to have the card. True enough, but that's a service, not a good. You have to take it on their terms if you want to use it. If they modify the terms so that they are unacceptable, feel free to cancel, but it's there service, their terms. Also, the disclosure is up front (the terms are spelled out on the little sheet that comes with the app).
In general, EULAs are just a waste of bytes.
So, I have yet to see a product where the norm is to buy it with a credit card and where you actually get to read the ELUA before charging the card. Now, what happens if you charge the card to buy the product, read the ELUA and go "Holy cow! I don't agree to this!" but by then you can't do a charge back. How could that stand up in court?
But more to the point... how could that wash with with a Visa merchant account agreement? Seems to me that a quick call to Visa where you quote the ELUA and surrounding circumstances, and somebody's merchant account just got yanked.
To use a service, you need to agree to the terms. If you don't agree, they have a fight not to provide the service to you. So it's incumbent on you to check what the terms of service are and figure out if they are acceptable. However don't presume you can dictate to them how they must or must not run their service. You can suggest, of course, and if they don't agree vote with your dollars and go elsewhere, but it's theri service, and thus they make the rules.
Now of course there are legal limits, as with everything. If Bilzzard decided to take over your ocmputer and use it as a spam bot, they'd get criminally charged regardless of ToS. But, in general, they can get terms for using it.
The reason that's legal and EULAs usually aren't is because with a ToS, they are giving you permission to use their stuff, and giving you the rules for using it. If you don't like it, you don't use their stuff and don't pay them money. However an EULA is additonal terms on a good you've already bought, and they do it after the sale has happened.
So while Bilzzard probably can't legally stop you from using the WoW client however you please (not that they might not try) they can terminate your ability to use their servers if they want.
THIS IS THE USUAL REASON! http://www.law.cornell.edu/ucc/2/2-316.html
Woohoo! I'm enjoying this. Even though you don't care, I can post to slashdot and study for my legal studies exam at the same time!
So, under Australian law at least:
In this case your friend is acting as your agent. At some point in time you made a (verbal) agreement that your friend would install all the software. Unless you explicitly stated that he was not authorised to accept EULAs, as your agent, he as the apparent authority to do so because accepting these licenses is a necessary part of installing the software.
Thus anything he does in your name is legally binding in as much as it would be legally binding on you.. an unenforceable contract remains unenforcable not matter whether its "signed" by you or your agent.
Norman Cook's Ode to Sl
You know the drill: IANAL, but I am a law student.
As to your million dollar example the EULA would almost certainly state that modification is not allowed, and by modifying the EULA you are actually making a new offer. Since the copyright holder has never agreed to that offer (by conduct or otherwise) you would be in violation of copyright as you never accepted the holder's only offer of license.
As to you switching the buttons, you would not be acting in good faith, would not have accepted the license, and would be breaking copyright.
As to your niece, it could be argued that she has some form of agency and as such would bind you to the contract.
Just some quick thoughts, and I'd like to reiterate that I believe that EULAs should not be enforced by courts for several reasons I have articulated by reference elsewhere in this thread.
- Neil Wehneman
My legal education, in nifty podcast format
The marvelous company that came up with the no charge-back EULA also has a EULA for their website. The grant you a revocable license to browse their site, but no bots without permission (I found the site through Google, so I hope the got permission). Their terms for use of the website includes such gems as:
MBFS does not permit unsolicited reviews of its products.
MBFS grants you a limited license to access and make personal use of the Site and not to download (other than page caching)
You are granted a limited, revocable, and nonexclusive right to create a hyperlink to the home page of the Site so long as the link does not portray MBFS, its affiliates, or their products or services in a false, misleading, derogatory, or otherwise offensive matter.
I'd include a link to the terms of service, but I don't think I'm allowed to.
Wanted: witty unique signature. Must be willing to relocate.
And this is why you should never take legal advice off the internet....
I'll play devil's advocate:
(1) It does need to be an exchange, but does not need to be an exchange of 'things,' unless you use that term very loosely. In exchange for your agreeing to the EULA (and maybe your money), they let you use the software. Another example: in exchange for $500, I agree to let you drive a backhoe across my yard so you can dig your swimming pool.
(2) Typically, the software box says that there use of the software is subject to an EULA, contained inside. Courts have said that as long as you know that it's there before you buy and have the right to refuse the agreement after you buy (by, say, returning the product), you have that. In extreme cases, courts have said "everybody knows that software is governed by EULAs, so you don't even need notice on the outside of the box, as long as you have some way to reject once you read the contract."
(3) I don't know where you get this from -- contracts do not have to be signed or otherwise verified. THey do need to be accepted, though. When I go into a store and buy a gallon of milk with cash, I don't sign anything. There's such a thing as "acceptance by performance," where you don't have to do say anything, just do it. For example, you drop your car off at the garage, slip the key in the mail slot with a note "Please fix the brakes unless it will cost over $500" -- the garage sees it and fixes your car. You have to pay -- they accepted your offer by doing what you asked.
(4) Contracts do NOT have to be open to negotiation. I don't know where you get this from. Buying a coke from a machine is a contract -- when was the last time you were able to negotiate with a coke machine? In any case, you actually do have this ability with EULAs -- call up the company and say "I'd like to use your software, but I don't like the EULA. How about this contract...."
In the US, while parts of EULAs may not be enforced as being against public policy, unconscionable, illegal, &c, they are otherwise generally enforced.
(IANAL. Don't take this as legal advice.)
Actually, that distinction is not the key one. The important part is that you do *not* have any pre-existing right to copy a GPL'd program's (or any program's, for that matter) copyrightten source code into *your* program. The GPL, if you choose to accept (all of) its terms, offers you a license to do just that. If you do not like the terms (which are clearly disclosed ahead of time) then you are not required to accept them, and normal copyright law applies.
It has to be an exchange of things.
Not under any definition I know of. A quick Google search turned up this page on FindLaw.com. It states:
It says nothing of an exchange of things. Further, that's silly because a Non-Disclosure Agreement (NDA) is a contract, but there's no "exchange of things" there. Just the promise that one party won't go blabbing (not a legal term) about the information another party agrees to share.
It has to be before the fact.
Which is why you can see the various agreements before you sign up for my game, Meridian 59:
End User License Agreement
The Rules of Play (in-game rules)
Terms of Service
All these are freely available for you to read before you buy our game or join our service.
If you take a moment to read our EULA, you'll see that at the top it says, "WARNING: YOU ARE ABOUT TO ENTER INTO A CONTRACT." That was written by the lawyer that drafted our EULA.
It has to be mutually agreed upon.
That's what "I agree" means, and it's written button you click on. At the very least I figure this is equivalent to a verbal contract; verbal contracts are usually valid, but usually not used because it can be hard to prove consent of both parties without a written records (which is why signatures are usually preferred). If you don't agree, then you shouldn't use the software. Clicking "I agree" then claiming it wasn't a valid agreement is the worst option, really.
Along those lines, it has to be open to negoation.
What are you doing to that goat for the contract? *shiver* Oh, wait, negotiation. Right....
Have you ever tried to negotiate? For my company, we have contact info posted on our website. You could revise any of our agreements and send it to us before you sign up and play the game. Of course, many companies will probably reject any revisions, but that's their prerogative as with any contract negotiations. And, nobody is forcing you to agree to the EULA. In most cases you can send the software back and get a refund. At the end of our EULA, we state:
Given my counters to your objections, it looks like our EULA is a valid contract, hmm?
It comes down to this: companies use the EULA to cover their liabilities and to assert their rights. If you don't like the EULA, you have the ultimate recourse: don't use the software. There's not much software out there that is essential, so whining about how the unfairness of the EULA solves nothing. Unless you're willing to not use the software nothing will change. Think Microsoft's OS EULAs are crap? There's a few alternatives out there, I've heard. Don't like the EULA on my game? Don't play. I promise not to be too hurt by your rejection, personally. Of course, I think our EULAs
Brian "Psychochild" Green
MMO developer's blog
That's fairly standard language for many IDEs.
A typical requirement for lifesupport or other extremely critical processes is that everything needs to be bullet-proof. Here the company is admitting that the product is not guaranteed to meet such strict requirements.
It's a simple tradeoff between quality and availability/cost. You wouldn't be concerned if there was a bug that caused a $50 video game to hickup rarely, but you'd probably be screaming mad if a bug in your $50k pacemaker would cause it to hickup even once.
As for a non-lifesupport example, I've notice that some EULAs mention that the software is not to be used in control systems within nuclear power plants.
Anyway, that particular statement shouldn't cause concern. That is, unless you've already sold your Java Defibrillator program to someone.
This is not my sig.
link..
http://www.pcpitstop.com/spycheck/eula.asp
I did, however, search for "cap" and "case", but I didn't find any reference to things having to be in all uppercase/allcaps.
That's from section two. They make it allcaps so they can say it's conspicuous. A usual case of being overlawyered. It's the size of the print that matters, not the fact that it's titlecase.
However, since that's become the norm, you could say that large blocks of titlecase text is conspicuously legalese.
Incidentally, that section also mentions why they always make mention of merchantability in such contracts.
Monty Python did an EULA about subscribing to a ficticious insurance premium about 30 years ago something like this: "Not only to I agree not to make a claim, but if I insist then I am likely to get my face filled with mud"
Most North American states have a 'Sale of Goods Act'. Go and read it, it is probably on your governmental web site.
Oh well, what the hell...
I hate it when they put paragraphs in ALL CAPS. It makes it even harder to read the EULA without my eyes going crazy. I think they do it to ensure that you have even less chances of reading the EULA.
From what I've understood, it is because of consumer protection law. They have to make those paragraphs stand out, and the only easy way of doing that in plain ASCII is to use all caps.
Live today, because you never know what tomorrow brings