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."

Comments

From MS

[Anonymous Coward]

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.

Re:From MS

[LiquidCoooled]

The MS Office Eula9.chm document states the following:

Can I make a second copy for my portable computer?
The End-User License Agreement (EULA) for many Microsoft application software products contains the following sentence: "The primary user of the computer on which the SOFTWARE PRODUCT is installed may make a second copy for his or her exclusive use on a portable computer." If your EULA contains this sentence, then, subject to the conditions mentioned, you may make a second copy of the software. Note that you must be the primary user of the computer on which the software is installed. The primary user is the individual who uses the computer most of the time it is in use. Only that individual is entitled to use the second copy. Furthermore, the software must be installed on the local hard disk of your computer; you are not entitled to make and use a second copy on your portable computer if you run the primary copy of the software from a network server. Finally, only one secondary copy may be made; you may install this copy on more than one portable computer.


There is a Second copy clause in the MS Office and MS Project Eulas, however in the default MS Windows XP Eula, there is No such provision.

(I checked C:\WINDOWS\system32\eula.txt for the term primary/second)

Re:From MS

[Anonymous Coward]

I always wondered how they would define portable device.

I have a carrying strap for my desktop, it's portable. Actually, most systems are portable, as in not bolted to the floor.

Re:From MS

[LiquidCoooled]

The Eula is taken from the retail version, for additional verification you can look yourself here:

XP Home license
XP Pro Edition

I would assume since product activation kicked in this would be reduced, I still use Office 2000 over here which may explain why mine still says it, I can see issues of needing to call to activate the newer editions "Honest guvner, I'm at home now, its just my office machine got reinstalled 17 times last week, this is totally seperate"

Anyone care to check if newer versions of Office continue this "Use at home" tradition?

Re:From MS

[Meagermanx]

Next time somebody wants to use the computer:
"Look, I'm sorry, but this copy of Windows is only licensed to the primary user of this machine.
Hey, don't look at me like that. You're the one who's against piracy! You can't just go around deciding which terms of the EULA you want to adhere to! That would be illegal."

Re:From MS

[shmlco]

Funny, but totally inaccurate, as you, the "primary user", should well know.

If you don't want your friends (secondary users) on your computer snooping through your porn collection, just say so in the first place.

BEFORE YOU POST

[Anonymous Coward]

Make sure you read this before posting.

Re:BEFORE YOU POST

[Anonymous Coward]

Clause 1. By posting to slashdot, you agree that you will not RTFA first
Clause 2. You will discard any intelligble comments and post based on standard stereotypes
Clause 3. ??
Clause 4. Profit!
Clause 5. Beowulf Cluster

Re:BEFORE YOU POST

[greenguy]

Clause 6. Natalie Portman
Clause 7. Hot grits
Clause 8. In Soviet Russia, posters mod YOU down!
Clasue 9. Great Google-y moogley
Clause 10. iPod! Video iPod! Trans-dimensional, cancer-curing, Google-a-matic iPod!
Clause 11. Steve Ballmer and obligatory chair/monkey/DEVELOPERS reference
Clause 12 is dying... Netcraft confirms it...

Re:BEFORE YOU POST

[accelleron]

Taken from somethingawful.com: "Interestingly enough, this was the entirety of Gator's EULA: Hahaha, dumbass."

Something Awful

[Anonymous Coward]

Reminds me of Something Awful's recent lampoon of the same subject. Nobody reads these things because they're all in legalese. No wonder companies think they can slide in anything. And what are the users going to do, not accept the terms?

Re:Something Awful

[badasscat]

And what are the users going to do, not accept the terms?

Well, in the case of the chargeback example, they can accept the terms knowing what they've agreed to is completely unenforceable.

Say you agree to that in a EULA, then the software won't install and you ask for a refund, which the company will not provide. You call the credit card company and say "they sold me a defective product and won't give me my money back" and the card company calls the software maker to see what's up. The software maker says "but the customer agreed not to do a chargeback!" You know what the CC company's gonna do?

They're gonna laugh in the software company's face. Then they're gonna do a chargeback.

Your relationship is with the CC company. You can't un-agree with a third party to something you've already agreed to with your CC company. Because the CC company is under no obligation whatsoever to abide by that; they haven't agreed to alter their policies to fit this EULA. Their only obligation is to their customers with which they have prior agreements.

Now, IANAL, but I've got plenty of experience dealing with CC companies (including handling chargebacks) through previous jobs I've had, and this is pretty basic contract law anyway. Contracts are between two parties; if you've got a contract that you're trying to apply to a third party but that they haven't signed, it's meaningless. I can't write up a contract that says "you agree that your sister will never ask me to borrow money" and expect that that actually obligates your sister not to do anything, even if you do sign it.

It's just worth pointing out that some people subscribe to this fallacy that anything you put in a contract is binding as long as it's signed. That's just not the case. You can't agree to something that's illegal, you can't sign away most rights given to you under the law, and you can't agree to something on behalf of a third party (unless that third party also signs, as in a guarantor type situation). The purpose of a contract is to get two people to agree in writing to something under the law. A lot of these companies are apparently using EULA's these days to get people to agree to things that are outside the law, but those EULA's just cannot be enforced.

(This is not to say no EULA can be enforced; obviously, we've seen that they can be. But a EULA has to be written properly just like any other contract; you can't just stick random stuff in there.)

Re:Something Awful

[NoGuffCheck]

Say you agree to that in a EULA, then the software won't install and you ask for a refund, which the company will not provide. You call the credit card company and say "they sold me a defective product and won't give me my money back" and the card company calls the software maker to see what's up. The software maker says "but the customer agreed not to do a chargeback!" You know what the CC company's gonna do?

In Australia the credit card companies/financial institutions do not call the retailer at all. They process the chargeback and send a letter at the end of the month with the date and time of chargeback and the amount. Then the retailer will/should pick it up when looking through their merchant account statement. Same result though.

Breach Of Contract Is Not A Crime

[John Hasler]

Where do these doofuses get the notion that you can go to jail for failing to comply with the terms of a contract?

Re:Breach Of Contract Is Not A Crime

[KillShill]

and furthermore a EULA is not a contract.

it's a strongly suggested lengthy piece of psuedo-legalese, designed to make people think it's binding.

Re:Breach Of Contract Is Not A Crime

[Anonymous Coward]

Copyright law grants copyright holders a monopoly on a set of very specific rights. EULAs are the copyright holder's way of using their monopoly to expand their monopoly rights to other things. An EULA that demands more rights than copyright grants aught to require the surrender of the copyright. For the record, the rights are:

1. to reproduce the copyrighted work in copies or phonorecords;
2. to prepare derivative works based upon the copyrighted work;
3. to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
4. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
5. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
6. in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

Re:Breach Of Contract Is Not A Crime

[Mateito]

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.

Re:Breach Of Contract Is Not A Crime

[Sycraft-fu]

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.

Re:Breach Of Contract Is Not A Crime

[cfulmer]

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.)

Re:Breach Of Contract Is Not A Crime

[Anonymous Coward]

Contracts don't say "I agree to give up all this and get shit in return"

It just might say that if you're a farmer making arrangements to obtain fertilizers.

Re:Breach Of Contract Is Not A Crime

[tepples]

It has to be an exchange of things.

Publishers of proprietary software would argue that the purchaser of a copy of COTS proprietary software agrees to an exchange when installing the software. The installer, which controls access to the copyrighted work contained in the encrypted .cab files, is classed as a technical protection measure under 17 USC 1201(a) and foreign counterparts. The exchange generally involves giving up the right to take necessary steps to make interoperable software, the right to collect damages from the publisher, and possibly other rights, in exchange for the right to decrypt the program.

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.

That's why virtually all contracts include return clauses, stating that if the outer seal is broken but the inner seal is not broken, the purchaser still has the right to return the copy. It's a way to back out of the rights-for-decryption contract.

There's also no proof you agree (clicking a button isn't proof, what if someone else clicked it?).

Evidence that someone agreed is that the software has been decrypted and installed. The defense that you cracked the encryption on the .cab files is tantamount to an admission of guilt under the DMCA and foreign counterparts. So how can you show a preponderance of evidence that you did not agree?

Re:Breach Of Contract Is Not A Crime

[maxwell demon]

when't the last time you tried to return the pre-installed software on a new machine for a refund? Oh, you can't.

Try to give back the whole product you got (that is, including the computer it was pre-installed on). I guess if you buy a box of pralines and try to give back only the nougat pralines, you'll have problems as well.

Cannot believe...

[Tamerlan]

It's har to believe that there are ppl that actually read them.

It's strange there is no eulaeater.com site (like 419eater).

Go Blizzard

[MachDelta]

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. :)

Re:Go Blizzard

[Tidal Flame]

I'm pretty sure this also applies to packet sniffers and such, as they wouldn't want you to reverse engineer packets sent and received by the game in order to write a private server. Either way, they're basically saying that they can collect information on you and (I'd image) terminate your account, sue you, etc. if you're running programs they don't like.

Re:Go Blizzard

[jrockway]

Those terms give Blizzard the right to install a rootkit on your computer and communicate the information that the rootkit retrieves (like your bank account information and GPG keys) back to Blizzard. All so that you have the privilege of paying them to play on their servers. Nice, eh.

They're probably not doing this, but without the source code, how can you be sure? (Yeah, I know I sound like a zealot... but it's true.)

And FWIW, I always cheat in games by modifing the packet stream... on another machine that the Blizzard software has no way of knowing exists. These kinds of "protections" only protect against the n00b script kiddies, not people that actually make money data mining and cheating. (If you feel safe, then you are safe, they say.)

Re:Go Blizzard

[LiquidCoooled]

How do you know that their program doesn't look for webpages which talk about hacking WoW (such as what your viewing now as you post) and searching for specific keywords?

The software you have running that you got from your favorite clan website might be detected as dodgy and you can be kicked off the server/account closed.

They decide the rules and your not in control, its similar to the MS malicious software detection tool, I wonder just what they actually consider malicious...

Re:Go Blizzard

[Proc6]

The problem is, for the cheaters, "cheating" is the game.
And with that, your guidelines fall flat. :(

Re:Go Blizzard

[jrockway]

To be clear, I personally could care less about cheating. I don't have time for the game as it is, much less cheating in it. I'm just saying that allowing Blizzard to root your machine is not going to stop people from cheating. All it will do is invade your privacy and make your system even more crash-prone than it already is.

Re:Go Blizzard

[Buran]

I wonder if this isn't crossing the line into illegality -- this sounds an awful lot like spyware that monitors what you're doing and reports back to someone else without telling you about it. If spyware is being outlawed, why isn't this sort of thing? ("you agreed to it when installing"? People "agree" to install spyware buried in long EULAs all the time, and the law is still cracking down)...

Re:Go Blizzard

[Arker]

Actually it says they can look for programs that you are using to cheat with. It doesn't say they can look for other programs or for you bank account information.

You need to brush up on your legalese man. It says they can look for whatever the hell they want and do whatever the hell they want, period. Here's the key bit:

ANY THIRD PARTY SOFTWARE, INCLUDING WITHOUT LIMITATION ANY "ADDON" OR "MOD," THAT IN BLIZZARD ENTERTAINMENT'S SOLE DETERMINATION:

Re:Go Blizzard

[Durzel]

What interests me about EULAs like this are the vagueness of the terms.

"Monitor", for example, what is Blizzards intended definition of monitor? Obviously in the context of WoW it means it will look for known third-party WoW-hack fingerprints, but the semantics could equally mean it could scan your memory continuously to the point where your system degrades as a result. Is this permissable?

Strictly speaking, Windows itself would "mine" information fron the WoW process as part of its own internal memory/pagefile management system. Similarly at the very technical level Windows must assign processor timeslices in a manner that keeps the OS running smoothly. How can it do this without mining information from the WoW process?

My gut feeling with EULAs like this is that they are meant moreof as a deterrent to casual cheaters than as a legally binding document. It's feasible that people who would otherwise consider cheating might think twice if they thought Blizzard could (and would) be checking their PCs and would automatically cancel their accounts.

Well formatted 1 page version

[fuzzy12345]

http://www.tgdaily.com/2005/10/22/rtf_eula/print.h tml

Bad EULA's

[Anonymous Coward]

I hope these idiotic EULA's don't stand up in court. I mean after all, some software I have actually used wants me to release my source code if I use thier source code in the software I write. Now how in the world could that be reasonably enforceable by just a click through license.

Re:Bad EULA's

[strider44]

(ahem sorry for being picky here but the GPL isn't an EULA but a copyright license)

Re:Bad EULA's

[CosmeticLobotamy]

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.

Re:Bad EULA's

[The Cisco Kid]

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.

loose

[michaelbuddy]

I'm glad my company keeps it's license agreements pretty loose. We only request that once you choose accept you will no longer fraternize with any of our competition, nor will you install any free or otherwise non-profitable software on your computer.

...But Copyright Infringement Can Be

[cduffy]

If there's no license granting you permission to take actions governed by copyright, you can then be liable for copyright infringement.

An increasing number of forms of copyright infringement are criminal.

Re:...But Copyright Infringement Can Be

[athmanb]

But that is illegal whether covered by an EULA or not.

The point is that EULAs are just a waste of paper and bits because everything that's illegal is already illegal without them, and anything that's legal cannot be forbidden by them.

Fun but less-than-serious

[mcgroarty]

While working for a small Amiga publisher, we demanded the buyer's first-born in the software license. In the follow-up product, we asked for the second and for the rights to facilitate production of same. Later at a game company, I inserted the right to pitch a tent and toast marshmallows in the customer's yard, but the text was yanked by the publisher. :(

Re:Fun but less-than-serious

[AndreiK]

So did you or anyone at the company follow up on the second one? ;-)

Deuling EULAs

[fuzzy12345]

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 [...] DETAILS ABOUT THE UNAUTHORIZED THIRD PARTY PROGRAM DETECTED

Yeah, I'm thinking that might breach the third party program's EULA, contravene the DMCA, etcetera.

Heh.

[Mister White]

That's hilarious. I think I'm going to start throwing stupid little clauses like that in my EULAs.

By running the Program, you agree that:
(1) You will not, under any circumstances, write a bad review about the Program, and;
(2) Any declaration in which language found to be slanderous of the Program or the Company will result in impossible to calculate damages to the Company. You further agree that you will pay the Company a preset repayment of no less than $50,000 and no more than $50,000,000, within 24 hours of publication of such declaration. Failure to comply will result in death by catapult.

Re:Heh.

[atrus]

You've never read an Oracle license then (or was it Oracle?). Basicly any review needs to be first approved by Oracle before it can be published.

Re:Heh.

[$!*_ForeignApes]

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"

Skype

[mcgroarty]

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.

Great damage to the company

[jrockway]

My cell phone contract contained similar language. It stated that cancelling the contract before the term was up would could "cause damage to the Company that is difficult to determine, but is approximately $150". I was ready to pay this (because US Cellular is the absolute worst phone company EVER... I live in Chicago and didn't even get good reception at US Cellular field!), until I read the whole contract and realized that my cell phone company screwed up -- they said my term was "0 months" (not 2 years like I thought). Needless to say, I called them and pointed this out. They said they'd call back, but I haven't heard from them in months. I haven't gotten a bill either, so I guess they just silently admitted defeat.

Funny how the contract can actually screw the company over sometimes :)

Java

[mcgroarty]

If memory serves, the Java user agreement requires you to acknowledge that any deaths resulting from Java use are on your own hands. The wording is less direct, working through the logic that Java isn't to be used where somebody's life is on the line, but it still makes me nervous. :)

Re:Java

[Tired_Blood]

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.

The real question here, is...

[aarku]

WHY DO END USER LICENSE AGREEMENTS LIKE CAPS SO MUCH?

Lameness filter encountered. Post aborted! Reason: Don't use so many caps. It's like YELLING.

Re:The real question here, is...

[mistakenanonymity]

THIS IS THE USUAL REASON! http://www.law.cornell.edu/ucc/2/2-316.html

Re:The real question here, is...

[tktk]

To make it hard to read. From my vague memory from a graphic design book...

Text is both legible and readable. All caps is very legible but not very readable. Legible text to catches your attention. That's why newspaper headlines are all caps, to catch your attention. Reabable text helps the process of reading, going from word to word and phrase to phrase.

Companies really don't want you to really read the EULA. So they put it in all caps and it's hard to read without making the user suspicious. There are other ways to make text less readable but all other methods tend to stand out and look strange to the average person. Personally, I also think all caps also seem to suggest an air of legality.

Re:The real question here, is...

[MourningBlade]

I did, however, search for "cap" and "case", but I didn't find any reference to things having to be in all uppercase/allcaps.

in case of a writing must be conspicuous

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.

Re:The real question here, is...

[Hazzl]

THIS IS THE USUAL REASON! http://www.law.cornell.edu/ucc/2/2-316.html

Very interesting reference! Thank you! However, if you read it without any further knowledge the law you cite says nothing at all about that would require SHOUTING. Is there some common interpretation that justifies the use of ALL CAPS for clauses excluding implicit warranties? Because, from my own experience, I must say that I find it hard to read these sections of the EULAs, mainly because I can't stand the shouting.

Re:The real question here, is...

[codeman38]

Glad to know I'm not the only one who finds it difficult to wade through capitalized disclaimers; I'm glad when they let me paste it into a text editor so I can lowercase it.

I know I've seen at least some EULAs that use bold text to make a section more 'conspicuous'; it's still not the most readable, but it's a whole lot easier to process than all caps.

Sony

[Space cowboy]

There was a clause in an NDA I signed with Sony that said something along the lines of "In the event of You disclosing material which is considered proprietary under this agreement, the Company will seek maximum damages, and financial reparation may not be sufficient".

That scared me slightly... I still signed though. And I made sure not to have any first-born (hah! As if I had the chance back then :-)

Simon

A humorous look at EULAs

[deep square leg]

Something Awful posted this article on Saturday.

Interestingly enough, this was the entirety of Gator's EULA:

Hahaha, dumbass.

Bypass/change EULAs in Windows

[Anonymous Coward]

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

ProCD v. Zeidenberg

[Landaras]

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

Re:ProCD v. Zeidenberg

[Landaras]

You know the drill: IANAL, but I am a law student.

I agree that enforcement of EULAs are a bad idea legally. However, I'm going to play devil's advocate here.

If you had a valid "default" license to the copyrighted work, then Section 117 of the Copyright Act would apply. That valid "default" license would come with the implied contract that accompanied the sale of the software. For example, I buy a CD without additional terms, and I can do whatever the Copyright Act says I can do with that CD.

However, when a copyright holder attaches terms to the sale (through the EULA that is referenced and made known before the sale) then they are not selling a regular "default" license with the rights of Section 117 (and the rest of the Copyright Act for that matter). Instead they are selling a stripped down license that includes whatever rights they choose to offer you in the EULA. By not returning the software, you are accepting that offer through specific action (ie not returning it).

Again, this is not the perspective I believe the law should take (for a number of policy reasons articulated in my ProCD analysis). It is, however, the perspective some courts have taken.

  - Neil Wehneman

Re:ProCD v. Zeidenberg

[einhverfr]

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.

I agree (more recently, anyone following Blizzard v. BnetD should be aware of this, but IANAL or a law student either, just an interested layperson), but the case seems very weak to me in many cases. (i.e. they may be binding contracts, but they seem to me to present some very specific issues that nobody is addressing).

Let me give you an example.

Many people don't install their own software. They take their computer to the store and say, "I want eTrust, Office Professional, Photoshop, etc" and then the friendly people at the store install the software. In these cases:
1) There is almost never any discussion of the EULA's either before or after.
2) While arguably the technicians at the stores are acting as agents of the customer, it is very difficult to argue that the end user was ever fully informed about the contract, nor are ordinary means ever used to inform users of their obligations under the agreement.
3) Does this mean that the customer ever really agreed to the contract?

As an analogy...

Lets say I send my son to go and buy something. Lets say for the moment that he is 14 years old. In order to buy this, he is required to agree to certain terms. He punches the relevant buttons and completes the transaction and never thinks anything more of it. Later on, the vendor comes after me because I failed to live up to the terms of the agreement. But I was never aware of the terms of the agreement, and never agreed to them. They say, "yes, but we have this card that says this sale was accompanied by the agreement of the terms" and I say "What? I sent my 14-year old son to buy that. He must have punched the buttons."

Now what? It seems to me that the contract is invalid because it was agreed to by a minor. But what is the preferred remedy? Would it be any different if a third party to the transaction was the one that agreed?

It gets more interesting in that it seems that 14-year olds by this standard might be the only ones immune from the reverse engineering clauses. And they play games, so maybe we need more 14-17 year olds working on BnetD...

The main problem is that the "I Agree" button does not record any identifiable record of the identity of the person agreeing to the contract. I.e. with a signature one can try to establish that one did not really sign it which is why many contracts require witnesses and/or notary publics to verify the identity of the person signing the contract.

Of course I avoid this problem by only using Free/Open Source software, but I am very concerned for many of my customers.

Re:Over Board?

[Anne Honime]

If EULA's were written in plain english and kept short and to the point, without "Lawyer Speak", it could benefit both the company and the User.

It wouldn't because 'law language' is a kind of 'API' between opposing interests ; write out of specs, and both editor and customer lose because nobody will be able to predict the meaning a judge will give to the words. At least, if properly written, an EULA can be submitted to a lawyer, and he'll be able to give a fair appreciation of the chances it has to be enforceable (or not). It doesn't mean that everything in an EULA is as if casted in stone, because an editor may be tempted to use legalese to scare the customer before going to a trial, but it means that legalese is a linga franca among professionals of law that help going straight to the point.

Picture this in real life...

[MachDelta]

Oh i'm not fully against Warden. I understand why it's there, and I trust Blizzard enough that i'm willing to risk continued use of their software. But that doesn't mean I don't think this is an utterly rediculous invasion of privacy. I mean come on... Maytag doesn't get to lace my house with CCTV cameras when I buy one of their dishwashers. Why does Blizzard get unlimited access to my computer simply because i'm using their software? Just because its the norm? Infact, i've got a better word than "norm". Try "collusion". Look around - software EULAs have gone completely off the deep end while everyone was busy being mesmerized by the internet. It's just too bad avalanches are easier to start than they are to stop.

Chargebacks.

[jcr]

The EULA clause that threatens you with $8 grand in damages if you dispute a credit card charge would certainly violate their merchant account terms. Somebody needs to report them to MasterCard, AMEX and VISA. I would, but I'm not a customer of theirs, nor would I ever be.

-jcr

That "no charge back" clause is wacko...

[dbc]

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.

Re:Can common/civil law override these licenses?

[jcr]

Is it possible that the law can override the stuff written in a license?

Of course. You can't be held to a contract that violates the law.

-jcr

Well ToS is a bit different than EULA

[Sycraft-fu]

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.

no habla ingles

[davidwr]

Scenario #1:
I asked my non-English-speaking friend to buy me a new computer and install OpenOffice.

Of course he got the English-language MS-Windows and of course he had to walk through all the EULA and activation stuff. He'd watched someone else do it before so he knew what buttons to press but didn't understand a word of what was on the screen.

He didn't know enough to tell me he'd just signed away a bunch of rights on my behalf.

Who if anyone is liable if I violate the EULA - the very EULA that neither me nor my friend is aware of.

Scenario #2, except instead of me asking him, he did it on his own and gave me the PC w/ OO installed for Christmas.

Re:no habla ingles

[Mateito]

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.

Re:Can common/civil law override these licenses?

[Mateito]

Anyone here an expert [...]

Don't we stupid, this is Slashdot.

We are ALL experts.

small font EULAs

[Barbarian]

Something that bothers me, why do EULAs typeically come in eight-point font in a 400x200 dialog box, and make it impossible to copy the text? There's absolutely no excuse for the small font--no paper is being saved, and the tiny window is just to discourage people reading and finding out just how many ways they are getting screwed.

Re:small font EULAs

[NicenessHimself]

Because they are using the font "Enron Beelzebub".

http://www.dilbert.com/comics/dilbert/archive/dilb ert-20051011.html

Here's a funny EULA...

[antdude]

From a Broadband Reports' security forum thread for those who missed it in my EULA poll reply:

PLEASE READ this end-user license agreement ("eula") carefully. By being born, you agree to be bound by the terms of this eula. If you do not agree, do not exit womb and, if applicable, return to the place of conception for a full refund.

1. GENERAL. This eula is a legal agreement between you (either an individual or an entity) and the scientific or religious establishment of your choice ("God"). This eula governs your Life, which includes all seconds from the time you are born until you are legally pronounced dead (. This eula also governs the container supplied with your Life ("Body") and any support services ("miracles") relating to Life except as may be included in another agreement between you and God. An amendment or addendum to this eula may be presented to you by your retail suppliers ("Parents").

2. THE PARENT PROGRAM. All complaints and technical support requests should be addressed to your Parents, who may or may not, depending on the subscription level you have elected, offer you additional warranties. Parents are third-party components, and not subject to warranties under this eula. God is not liable for the quality, competence, character, number, gender, species, ethnicity, religious affiliation, or presence/absence of your Parents, or for the quality of the relationship between them, if any, and does not supply technical support for Parental units. Any Parent may be terminated or exchanged at any time without notice and without recourse.

3 CONSCIOUSNESS. To reduce piracy, God requires certain components to be activated. The license rights granted under this eula are limited to the first five times you gain Consciousness ("Wake up") after you are Born unless you supply the information necessary to activate your Life. You may also need to reactivate your Life if you modify your Body or alter your Consciousness. God will not collect any personally identifiable information from your DNA during the activation process without your consent.

4. DIGITAL RIGHTS MANAGEMENT. Content providers are using digital rights management technology to protect the integrity of their content so that their intellectual property, including copyright, in such content is not misappropriated. If your Brain's security has been compromised, content providers may request that God revoke your right to copy, display, and/or play protected content. Revocation does not alter your Brain's ability to access unprotected content, if any exists.

5. OUT-OF-BODY EXPERIENCES. Your Life may not be shared or used concurrently among different Bodies.

6. YOU ALSO AGREE:

a. Not to remove or obscure any copyright, trademark or patent notices ("Birthmarks") that appear on the Body as delivered to you;

b. To indemnify, hold harmless, and defend God from and against any claims or lawsuits, including attorneys' fees, that arise or result from the use or distribution of the Life;

c. That God reserves all rights not expressly granted.

3. RESERVATION OF RIGHTS AND OWNERSHIP. God reserves all rights not expressly granted to you in this eula. The Life is protected by copyright and other intellectual property laws and treaties. God or Its suppliers own the title, copyright, and other intellectual property rights in the Life and in any derivative works produced by you during the course of your Life. The Life is licensed, not sold.

4. MEMORIES. You may make a single back-up copy of the Life. You may use one (1) back-up copy solely for your archival purposes and to reinstall the Life in the Body. Except as expressly provided in this eula or by local law, you may not otherwise make copies of the Life, including the imprinted materials accompanying the Life. You may not loan, rent, lease, lend, or otherwis

ALL CAPS

[Midnight Thunder]

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.

Re:ALL CAPS

[Kjella]

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.

Re:And if I edit the contract?

[Landaras]

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

MBFS has an EULA for their website too

[FirstTimeCaller]

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.

Re:MBFS has an EULA for their website too

[Bwooce]

Their EULA has actually toned down since 1998...

In some of them it says:

"You agree that, even after the ten-year non-compete period listed above, that
any product you may create will not in any way resemble or act like the Software,
will not be able to read or convert the databases created or used by the
Software, will not use any of the same methodologies employed in the creation
and operation of the software, and will not use any trademark, logo or name
used in the Software."

So if you thought the DMCA was bad...try this guy. I'm afraid this all helps to form my opinion that John Tamburo is a dickwad. Apparently a serial bankrupt dickwad.

http://66.160.129.140/scoop/story/2004/5/13/0529/9 7735 is interesting too.

Re:MBFS has an EULA for their website too

[Just Some Guy]

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.

Asshats.

email EUL's

[timmarhy]

one thing that has always amused me is company's polices of putting notices at the bottom of emails stating things like "you may not disclose the contents of this email to 3rd parties" etc etc.

firstly, i do not agree to any of these terms prior to recieving said email, so they aren't binding in anyway. it's like trusting a contract in my face and claiming now that i have seen it, i most obey it.

if someone sends me something, that email is my property, i'll do what i bloody like with it.

Read the Termination clause CAREFULLY

[Meetch]

OSTG may terminate a user's account in OSTG's absolute discretion and for any reason. OSTG is especially likely to terminate for reasons that include, but are not limited to, the following: (1) violation of these Terms; (2) abuse of site resources or attempt to gain unauthorized entry to the site or site resources; (3) use of an OSTG Site in a manner inconsistent with the Purpose; (4) a user's request for such termination; or (4) as required by law, regulation, court or governing agency order ; or (4) for being a smarty-pants and pointing out that this clause of the OSTG license was written by someone who couldn't count up to 4... errr.

EUL inside

[timmarhy]

i remmeber once i got this piece of software with a notice "by opening this packaging you agree to the EUL contained inside"

just ponder that shit for a moment. the contract is inside, they aren't letting you view it before claiming you agree to it. i'd be willing to bet if you voilated some part of it and they took you to court they would quickly find ALL their EUL stipulations would be thrown out for basic breaches of contract law.

Re:bad software damages the company

[Meagermanx]

If I was writing an EULA, I would include everything from owning their person, their soul, their political opinion, and their children to not being responsible for anything I say, do, think, kill, or mess up.

America is a lawsuit-happy nation. Of course they're going to try to protect themselves.

I still wonder if it would be illegal to buy a game, and never install and agree to the EULA. Could I legally distribute copies of it, claiming I was ignorant of the EULA, and didn't agree to anything anyway?

Re:And if I edit the contract?

[SpacePunk]

"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."

How about this. A copy of the modified EULA is mailed to the software company with a note enclosed that reads "By opening this envelope, you agree to all terms enclosed in this envelope regarding SOFTWARE."

Seems as watertight as a EULA.

Seriously.

Per machine vs per user licensing

[WIAKywbfatw]

The reason for this is because Microsoft licenses for Windows XP (and all of its operating systems) are per machine (or per processor), whereas its licenses for Office and other applications are per user.

Hence, it's permissable for an individual to install a single copy of Office on both their desktop and laptop without requiring more than one license, as long as both aren't used simultaneously. However, installing Windows XP on both those machines would always require two licenses, regardless of how the machines are used.

One side effect of this is that people who use Office at work can normally buy a copy of Office to use at home for a nominal fee. For example, under the terms of Microsoft's licensing as it applies to her mid-sized employer, my girlfriend is entitled to purchase a copy of Office for around £10, which covers the cost of media, postage and packaging and processing her request.

Re:Per machine vs per user licensing

[ultranova]

Under the terms of the license, you can't use Office on your laptop at the same time as someone else uses the same single license copy of on the desktop.

It is the meaning of the expression "at the same time" that is unclear. According to the Theory of Relativity, two observers who move relative to each other do not neccessarily agree on whether two events were simultaneous or not. From one observers point of view, the laptop and desktop were used at the same time; from another observers view, the laptop was used first, then the desktop was used after the laptop use had already ceased; and yet another observers view, the desktop was used first, then after its use had ceased the laptop was used.

According to Relativity, all of these observers are correct, and none of them is special in any way. Therefore, whether laptop and desktop were used at the same time or not depends entirely on whom you ask; therefore, any clause that forbids such simultaneous use also must specify what frame of reference to use: the rest frame of laptop, the rest frame of desktop, or some other frame ?

Since the EULA lacks this specification, it can be proven both that the laptop and the desktop were used simultaneously, and that they were not used simultaneously, depending on what frame of reference is used, rendering the whole concept of simultaneity meaningless, and therefore rendering any clauses referencing it also meaningless.

One might say that this is splitting hairs; however, it has been argued that running the program requires a license from the copyright holder, since the program is copied from the hard disk into the computers RAM in order to run it, so I'd say that common sense and copyrights parted ways long ago.

Statutory damages?

[tepples]

It is called "mitigation of damages" and if you think you have been damaged, you have a duty to mitigate, and can only seek relief for unmitigated damages over and above those you *could* have mitigated had you not sat on your thumbs.

Then please explain things such as the $750 to $150,000 per work "statutory damages" available to successful plaintiffs in a copyright infringement suit.

That's strange...

[noisymime]

My copy of MS Office's EULA says:

Dear user, you are valued and important to the Microsoft Corporation. We understand that you've paid a lot of money for out product and we really appreciate it. We encourage you to share this program with your friends if you find it to be of a high quality and might be of use to them. We also really appreciate any comments and feedback you may have about the software, particularly if you experience difficulty with it. We hope your enjoy using our product.

Ohhh you mean I'm not meant to edit that file before I install it?

Re:Depends on who initiated the chargeback

[dgatwood]

In this case, it's more like "you agree to not ask your sister to borrow money from me, even though I am under a binding contract with your sister not to ask you not to ask her."

In other words, report these clowns to Visa and they're likely to get their merchant account revoked. I strongly suspect that attempting to circumvent the terms of your merchant account agreement would constitute a violation of the terms of said agreement....

MS Front Page License?

[commodoresloat]

Didn't MS have a license with Front Page for a while that said that it violated the license to use the product to create web pages critical of MS? As I recall they took the clause out after people complained about it, but the fact that they even had the audacity to consider it is troubling.

EULAs can be contracts

[Psychochild]

Of course, you're making sweeping assumptions about what EULAs are or are not. Keep in mind, I'm not a lawyer, but I do retain quite a few of them for my business. This isn't legal advice, just my interpretation of things.

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:

A contract is a legally enforceable agreement between two or more parties. The core of most contracts is a set of mutual promises (in legal terminology, "consideration"). The promises made by the parties define the rights and obligations of the parties.

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:

If you do not agree to these terms and conditions, promptly return or, if received electronically, certify destruction of the Game Software within ten (10) calendar days after receipt of the Game Software and receive a full refund of any license fee paid if you: (a) Do not use the Game Software, and (B) return it with proof of payment to the location from which it was obtained.

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

Re:EULAs can be contracts

[SoupIsGoodFood_42]

"There's not much software out there that is essential[...]"
"Or, hell, go write your own game from scratch (or buy one from an existing company) and get rid of the EULA all together."
"Have you ever tried to negotiate? For my company, we have contact info posted on our website."

You sir, are unrealistic and have been reading too much Ayn Rand.

My EULA says...

[Simonetta]

My EULA on all my software, regardless of any written or implied language in the 'agreement', is interpreted by me, the primary user, to be:

   
    (1) The possessor of this software, regardless of how the possessor came to be in possession of the software, is entitled to do whatever the fuck they want to with the software. Included but not restricted to: giving the software to whoever the fuck I want, for any or no compensation that I so chose; examining and altering the software in any fashion that I chose; commenting negatively or positively on the quality of the software, in totality or part, in any forum that I chose to, public or private.

      (2) I, the primary user of the software, accept that the maker of the software offers no assurance, either explicit or implicit, that the software in any way, works for the purpose or any purpose that I, the primary user, acquired it for. Nor, do I, the primary user, make any assumptions that the data produced by the software be accurate, correct, realistic, are in any applicable to the purpose that the software was acquired. Regardless of the consequences of the use of this software, the makers or providers of the software to the primary user will hold no liability for any fucking thing that can happen as a result of interaction with the software on any level.

    This is what I am agreeing to when I click on I agree. The lawyers for large software corporations have this incomprehensibly weird idea that anyone would agree to clause #2 without the corporation's acceptance of clause #1.

Re:take him

[i_should_be_working]

They kept telling me that if I really want children, I should go out and buy them -- or, in the case of the parent comment, simply ask for them.

That's not nearly as much fun as the usual way. And when they're doing something to piss you off and you wonder to yourself 'what made me have this kid anyway?' you won't be able to answer 'oh yeah, all the sex'.

Re:By reading this comment...

[Androk]

" ...you agree to give me your firstborn child."

You can have the little bastard!! :)

Androk

Pcpitstop offered money!!! MONEY IN THE EULA!!!

[killa62]

link..
http://www.pcpitstop.com/spycheck/eula.asp

One EULA turned me into an employee!

[karl.auerbach]

I came across one particularly egregious EULA that (besides not actually licensing anything) said that it made me an employee of the vendor and that I waived several of my rights as an employee that are granted to me under Federal laws such as COBRA and ERISA.

Some employers are unwittingly doing this to their employees when they hire certain outside HR services companies.

Sale of Goods Act

[Budenny]

The issue is not really whether Eulas are enforceable. Some are, some are not, depending on what they say. The issue is whether a court in your jurisdiction will enforce a clause, whether in a Eula or anywhere else, which is incompatible with the law in that jurisdiction.

For example, the wonderful example where The Breeder Standard (is this real, and not a joke?) says that you agree to pay them $8k if you try to chargeback. I'm pretty sure this is incompatible with the UK Sale of Goods Act, which gives you various rights, and with other UK sale of goods regulations which limit what contracts may be imposed in the mass market. For example, from a UK Government site:

"The Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999 No 2083) provide that a term which has not been individually negotiated in a consumer contract is unfair (and hence non-binding on the consumer) if, contrary to the requirement of good faith, it causes a significant imbalance in the rights and obligations of the parties to the detriment of the consumer." There are similar regulations in effect in the whole of the EC.

There was a discussion some time ago here on whether Apple could, by Eula alone, prevent buyers of OS X from installing it on non-Apple hardware. The issue is the same as the question of whether MS can, by Eula alone, prevent buyers of Office from installing it under Wine.

The answer in both cases is no: not because of any difficulty with Eulas. But because such linked sales conditions are unlawful under EC competition law.

In the same way, a Eula condition which placed the buyer in involuntary servitude would not be lawful in the US, not because Eulas are problematic, but because involuntary servitude is unlawful under the constitution. Whatever boxes you check on a Eula, no court is going to place you in involuntary servitude.

So really, the most helpful way to look a this is not by focussing on Eulas. The thing to focus on is whether the company behaviour and conditions which they are trying to enforce in this way are lawful, regardless how they are enforced. The involuntary servitude example: suppose they had a guy standing at the exit to the store who had you sign a contract in the presence of three witnesses, and under oath. That would not be a Eula, and it would not be enforceable either...

Re:the distinction

[Xtifr]

> I guess you're arguing that by purchasing a Windows CD you have free reign to do whatever you like with the bits on the CD?

Yes, in fact you do (or would if not for the EULA), except that you cannot do anything that would violate copyright. Which basically means, no copying. Aside from that, you bought it, you own it. It's not the "finer points of copyright law". It's the CORE of copyright law -- COPYright law is about COPYING and ONLY about copying! Not about use! If you buy a book, you can chop it up and glue it back together (MS tries to forbid this), write and publish a review (MS explicitly tries to forbid this), study the composition (MS explicitly tries to forbid this), draw faces on the pages, sell it back to a used bookstore once you're done (MS explicitly tries to forbid this), etc. You can USE it however you want as long as you use the copy you got, and don't make more copies.

The rights that MS claims to grant you are rights you already had! (Awfully generous of them, isn't it?) :) Actually, what they try to claim is that you didn't buy a copy, you don't own your copy, and so you have no default rights to do ANYTHING with the software that you supposedly paid good money for! Contrast this to the GPL which assumes that if you got a copy of the software, you own that copy of the software, just like you would own a copy of a book, and you can use it any way you want, AND in addition, grants you some limited rights to make copies, which you do NOT have with that book.

But you KNOW what to do!

[ajs318]

If you don't like the licence, don't use the software -- and tell the vendors what you think about it. Bitch about the terms by all means, but at least make sure someone is listening who can do something about them.

I made the decision awhile ago to use only software that guarantees me my Four Freedoms. The chances are that such software will come under either the GPL or a BSD-like licence. Both these licences are easy to understand and do not seek to abridge your statutory rights.

The only way EULA madness will be brought to an end, is when people stop accepting it. Otherwise it's going to come to something like this:

1. You do not own the SOFTWARE. You have purchased a temporary, limited licence to use the SOFTWARE contingent upon your meeting certain conditions set by the LICENSOR. The LICENSOR may revoke this licence at any time.
2. You may install the SOFTWARE on one (1) computer, which shall become the property of the LICENSOR. You may not make or attempt to make any backup or archival copies. You may use the software only for the purposes approved by the LICENSOR and described in the accompanying documentation.
3. The SOFTWARE contains the proprietary secrets of the LICENSOR. You may not reverse-engineer, disassemble, decompile, de-obfuscate or otherwise attempt to understand the SOFTWARE, nor by any means attempt to make the SOFTWARE comprehensible to a human being or any other living organism.
4. You are not permitted to develop software which competes directly or indirectly with the SOFTWARE nor any other product supplied by the LICENSOR. Direct competition includes without limitation any software which attempts to perform one or more functions which could be performed using the SOFTWARE or any other product supplied by the LICENSOR. Indirect competition includes without limitation any software which attempts to use any key combination, mouse movement or other technique identical or similar to a technique found within the SOFTWARE or any other product supplied by the LICENSOR to perform a similar or different function.
5. The instructions and techniques for using the SOFTWARE are the proprietary secrets of the LICENSOR. You are privy to such knowledge only as long as you remain bound by this licence agreement and only to the extent that you may use the SOFTWARE in a manner approved by the LICENSOR. You may not communicate to any third party any details concerning the operation or use of SOFTWARE irrespective of whether or not such party may be independently licenced to use the SOFTWARE.
6. The operational details of the SOFTWARE are the proprietary secrets of the LICENSOR. You are not permitted to use any technique to attempt to discover any fact connected with the operation of the SOFTWARE. Examples of prohibited acts include:
   1. Reading the directory listing from the media upon which the SOFTWARE is delivered.
   2. Quantitatively or qualitatively examining data travelling into or out of the computer upon which the SOFTWARE is running.
   3. Attempting to measure the speed of the computer upon which the SOFTWARE is running.
   4. Measuring the temperature of any electronic component in the computer while the SOFTWARE is running.
7. Everything you create with the aid of the SOFTWARE shall be the property of the LICENSOR. All Intellectual Property rights embodied in anything you create with the aid SOFTWARE shall be deemed to belong to the LICENSOR but may at the LICENSOR's sole discretion be licenced back to you so long as your licence to use the SOFTWARE remains in force.
8. This licence may be terminated at any time by the LICENSOR, for any reason and without prior notice. Upon termination of the licence, you must immediately:
   1. Cease using the SOFTWARE and destroy all copies, including the documentation, together with the computer upon which the SOFTWARE has been installed, to the satisfaction of the LICENSOR.
   2. Forget everything you know about the SOFTWARE.
   3. Attempt

Sale of Goods Act

[HermanAB]

Most North American states have a 'Sale of Goods Act'. Go and read it, it is probably on your governmental web site.

Re:EULA are illegal, IMHO

[SwashbucklingCowboy]

LOL!

Please educate yourself. The first amendment prohibits the GOVERNMENT from restricting speech, not private entities such as companies.