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.
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.
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.
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
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.