Making Sense of Software EULAs

Brian E. writes "An informal Clearware.org poll indicates that 67% of the 66 respondants never or rarely completely read end-user license agreements (EULAs). Clearware.org aims to make sense of software by proposing guidelines for vendors to characterize end-user license agreements. Defined characteristics include terms and conditions found in existing EULAs that impact control over the user's experience, privacy and system security. The guideline extends on the idea of Creative Commons' commons deed and RDF/XML metadata formats. This simplifies EULA terms in a consumer friendly way similar to care labels on clothing, nutrition facts on food and warnings on hazardous materials."

Comments

67%?

[Whiney Mac Fanboy]

An informal Clearware.org poll indicates that 67% of the 66 respondants never or rarely completely read end-user license agreements

67%? or Perhaps 66.666666667? :-)

I'm still thinking that 33% of respondants lied if they say they always completely read the EULA.

Re:67%?

[Anonymous Coward]

Even if one reads

Fullness of the EULAgy

Only the dead know.

Re:67%?

[Anonymous Coward]

I'm still thinking that 33% of respondants lied if they say they always completely read the EULA.

Yes, but you forgot to include "sometimes" or "often" read the entire EULA. That leaves a nice big gray area for you there. After all, 15% of them might read the whole thing "sometimes" and another 12% may have responded "often." That leaves 6% of respondents who said they "always" read the full EULA.

Typo in the summary.....

[Mayhem178]

I believe it should read:

An informal Clearware.org poll indicates that 67% of the 66 respondants never or rarely comply to end-user license agreements (EULAs).

Re:Typo in the summary.....

[gardyloo]

It's that 33% who *do* comply with the EULAs without ever having read them who scare me.

Re:Typo in the summary.....

[Anonymous Coward]

Grammar nazi alert: suggest "comply with" rather than "comply to"

Sample of 67?

[mpapet]

Get back to me when there's more, many more, data points.

Based on my experience, I know of one other person who knows what an EULA is even though they never read them.

Guidlines might be good though. The downside is an EULA may become more enforceable.

Re:Sample of 67?

[The Snowman]

With such a tiny sample size, the margin of error must be huge, say, 67% +/- 33%. That could give an actual result of 100% that rarely or never read EULAs, which makes more sense.

Re:Sample of 67?

[rogersryanc]

They probably went to a group of lawyers that write EULA's and polled them... That poll is way skewed. There is no way 33% or 33.33333% of people read EULAs... If I read EULAs I would still be using MS-DOS because I would not have yet read the EULAs for Windows '95... I really hate those ones where you have to have your cursor on the last line of the EULA or the ones where they through a radio button in on you that's like hidden in a see of characters that when read sound like morse code...

Re:Sample of 67?

['nother poster]

In many places in the U.S. they have been shown to be legal and binding contracts even though you can't read them before you have to agree to them, like in many shrink-wrap packaged EULAs.

Re:Sample of 67?

[pegr]

In one adjudicated case, one EULA was found to be enforcable against one party (prohibition of reverse engineering). See for yourself.
 
One case is not many...

Re:Sample of 67?

[lubricated]

try +/- 12%

Re:Sample of 67?

['nother poster]

Nope, but it's still case law. Precident is precidnt whether it's one case or a thousand.

Re:Sample of 67?

[pegr]

Nope, but it's still case law. Precident is precidnt whether it's one case or a thousand.
 
Yes, you are correct, but I believe the case could be reversed at some point. Also, not all jurisdictions follow precedent from others. I'd love to see this EULA bunk get thrown out as the utter BS it is. Then again, with the bargain rates politicos are selling for these days, I'd hate to see the courts actually confirm the legality of EULAs...
 
Meanwhile, i just have my dog/child/parakeet hit "I Accept" for me... :)

Re:Sample of 67?

[Tim C]

Compared to how many confirmed cases of an EULA being found unenforcable?

Re:Sample of 67?

['nother poster]

I've always wanted to send a letter to my congress critters that says "By opening this, or having someone who works for you open this, you agree to accept my dictates as to how you will vote on the Bills before Congress." I have a feeling that my congressmen wouldn't feel bound by this EULA.

Re:Sample of 67?

[say]

No. The standard error (SE) is sqrt((p(1-p))/n) = sqrt((0.67*0.33)/66) = 0,057879185. If we are aiming for our standard 95 % confidence, the margin of error is 1,96*SE = 0,11344. It has a margin of error of 11 %, meaning that the true number is 67 % +- 11 % with 95 % confidence. I don't know much about the methods and people behind this test, so it's hard to say what population this statistic is correct for :-)

Re:Sample of 67?

[The Snowman]

You took me way too seriously. Same with the other poster. Maybe I should have just come out and said that the idea of people reading EULAs willingly is bullshit.

Re:Sample of 67?

[anthony_dipierro]

In many places in the U.S. they have been shown to be legal and binding contracts even though you can't read them before you have to agree to them

Can you cite a source for that? Last time I checked EULAs have only been upheld in cases which are easily distinguished from standard shrinkwrap licenses. Of course it's been a little while since I've read about this sort of thing.

Re:Sample of 67?

[Decker-Mage]

Okay, so I'm weird. I do read all my EULA's and, yes, I do comply with them. Then again, as I said elsewhere today, I'm subject to audit at any time and I don't want to lose all this wonderful (and frequently not so wonderful) software that they give me to play with and keep. [If that makes me a software whore, so be it ;-).]

Re:Sample of 67?

[Decker-Mage]

Nice to see someone else out there that really understands statistics. I'm with calling it an informal survey. No discussion of methodology nor are there enough data points. This one almost feels like it falls into the anecdotal category (as do many of the posts in this discussion).

The one true license (TM)

[Anonymous Coward]

Troll TROLLING PUBLIC LICENSE Version 2, June 1991
Copyright (C) 1989, 1991 Free Troll's Foundation, Inc.
59 Temple Place - Suite 330, Boston, MA 02111-1307, USA

Everyone is permitted to copy and distribute verbatim copies
of this license document, but changing it is not allowed.

Preamble
The licenses for most Troll's are designed to take away your freedom to share and change it. By contrast, the Troll Trolling Public License is intended to guarantee your freedom to share and change free Troll's--to make sure the Troll's is free for all its users. This Trolling Public License applies to most of the Slashdot Troll's Troll's and to any other troll whose authors commit to using it. (Some other Free Troll's Foundation Troll's is covered by the Troll Library Trolling Public License instead.) You can apply it to your trolls, too.
When we speak of free Troll's, we are referring to freedom, not price. Our Trolling Public Licenses are designed to make sure that you have the freedom to distribute copies of free Troll's (and charge for this service if you wish), that you receive source code or can get it if you want it, that you can change the Troll's or use pieces of it in new free trolls; and that you know you can do these things.
To protect your rights, we need to make restrictions that forbid anyone to deny you these rights or to ask you to surrender the rights. These restrictions translate to certain responsibilities for you if you distribute copies of the Troll's, or if you modify it.
For example, if you distribute copies of such a troll, whether gratis or for a fee, you must give the recipients all the rights that you have. You must make sure that they, too, receive or can get the source code. And you must show them these terms so they know their rights.
We protect your rights with two steps: (1) copyright the Troll's, and (2) offer you this license which gives you legal permission to copy, distribute and/or modify the Troll's.
Also, for each author's protection and ours, we want to make certain that everyone understands that there is no warranty for this free Troll's. If the Troll's is modified by someone else and passed on, we want its recipients to know that what they have is not the original, so that any problems introduced by others will not reflect on the original authors' reputations.
Finally, any free troll is threatened constantly by Troll's patents. We wish to avoid the danger that redistributors of a free troll will individually obtain patent licenses, in effect making the troll proprietary. To prevent this, we have made it clear that any patent must be licensed for everyone's free use or not licensed at all.
The precise terms and conditions for copying, distribution and modification follow.
TERMS AND CONDITIONS FOR COPYING, DISTRIBUTION AND MODIFICATION
0. This License applies to any troll or other work which contains a notice placed by the copyright holder saying it may be distributed under the terms of this Trolling Public License. The "Troll", below, refers to any such troll or work, and a "work based on the Troll" means either the Troll or any derivative work under copyright law: that is to say, a work containing the Troll or a portion of it, either verbatim or with modifications and/or translated into another language. (Hereinafter, translation is included without limitation in the term "modification".) Each licensee is addressed as "you".
Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running the Troll is not restricted, and the output from the Troll is covered only if its contents constitute a work based on the Troll (independent of having been made by running the Troll). Whether that is true depends on what the Troll does.
1. You may copy and distribute verbatim copies of the Troll's source code as you receive it, in any medium, provided that you conspicuously and appropriately publish on each copy an appropriate copyright notice and disclaimer of warranty; keep

Re:The one true license (TM)

[Firewalker_Midnights]

tl;dr time! (Too Long; Didn't Read)

Well... I have to say that I've read actual EULA's that were just about as nonsensical, so you may as well apply for a job writing EULA's for companies. :D

Re:The one true license (TM)

[gEvil (beta)]

How apt. Current moderation:

Moderation +2
80% Funny
20% Troll

Re:The one true license (TM)

[Anonymous Coward]

lollorskatorz!!!!
me != 0.1% llama + trollzorzzzzzzzzz
hehe its gpllllllddd
45689 34579 37458 73459 97234 12098 84442

Re:The one true license (TM)

[igny]

According to Clearware, it should be 67% Funny, 33% Troll.

Re:The one true license (TM)

[jZnat]

Everyone is permitted to copy and distribute verbatim copies
of this license document, but changing it is not allowed.

Good job reading that EULA! Everything but the preamble can be modified under the GPL terms. ;p

I thought these were unenforceable

[yagu]

IANAL (hate that acronym), but as I recently understood it, EULA's are in almost all regards unenforcable as they are contracts forged under duress. I pretty much have stopped reading them.

Re:I thought these were unenforceable

[schon]

Or do what I do - change them to something you do agree to. After all, a company is trying to unilaterally modify the terms of a contract after it's be executed (ie the software purchase), why shouldn't I have the right to do the same?

I find that doing something like:

echo "You may use this software as per your local Copyright law" >EULA.txt

works wonders for me.

I have no problem clicking "I Agree" after reading that.

Re:I thought these were unenforceable

[Rydia]

You're confusing duress and adhesion. There is nothing per se invalid about contracts of adhesion (ie, you only have one source for a certain thing). In this case I'm not even sure that it would be an adhesion contract- depending on the software, there's usually a competing product that would be (if not ideal) practicable for your purpose.

The real question about EULAs are whether they are preempted by the doctrine of first sale. Generally they are not so long as the packaging contains a notice that there is a contract either in the supplied documentation or digitally on the medium. Courts don't expect publisher to shrink long contracts that are of reasonable length for their purpose down to the size of a box, nor is it their responsibility to have a printed copy in the store, as the publisher does not control the store.

A system on the box akin nutritional facts is a fantastic idea- if it were done properly as a standard, it would clear up a lot of confusion regarding EULAs.

Re:I thought these were unenforceable

[Rydia]

Do you send a letter to the company after purchase saying "my use of this program is subject to included terms and conditions?" If not, you're not talking about the same thing.

Re:I thought these were unenforceable

[AhtirTano]

IANAL either, but I quote one here:

So, once again, true shrink wrap EULAs have been tested in most major jurisdictions and are valid contracts, subject to certain limitations. Terms of Service contracts, like the "EULA" found in MMOGs, are simply enforceable. There is a common perception that EULAs have not been tested in court. This is incorrect. They have been.

Don Shelkey

Re:I thought these were unenforceable

[penguin-collective]

There is nothing per se invalid about contracts of adhesion (ie, you only have one source for a certain thing).

No, that's not what a contract of adhesion is. In fact, for most contracts of adhesion (insurance, etc.) there are many sources for the same product or service. What it really refers to is that there is such a difference in bargaining power between the two parties of a contract that one can basically just dictate long, complex, and inequitable terms.

Contracts of adhesion are not per se invalid, but courts will take the circumstances of the contract into account should a dispute arise.

Note that, in addition, EULAs often contain unenforceable terms (like restrictions on reverse engineering in jurisdictions where reverse engineering is explicitly permitted by law irrespective of contractual terms).

Re:I thought these were unenforceable

[Anonymous Coward]

Which purchace, according to a common original EULA you can't even purchase the software. Nobody told you that at the Apple store though...

Re:I thought these were unenforceable

[fossa]

Here here. I saw this on slashdot some time ago... but has anyone tried paying for software in cash wrapped in a EULA that might, for example, nullify any EULA contained within the software box? I know your average store clerk couldn't care less... but it would be satisfying just the same. If witnessed, could such an act carry any weight in court in the event of a suit by the software publisher against you for violating the EULA? It certainly couldn't carry any less weight than the EULA?

I hate EULAs that look like a retail sale, and I hate non-CDs sold as if they were CDs. What happened to integrity?

Re:I thought these were unenforceable

[BecomingLumberg]

contracts forged under duress

I am going to have to disagree with you on that one. Unless Billy G is in your room with a sack of doornobs telling you to comply, this argument has no standing.

I assume your criticism here revolves around the windows-dependancy (or whatever critical software) for livelihood argument, but it does not apply. First, nobody is stopping you from being a ditch digger; second, I am sure that somebody on slashdot would be willing to inform (evangelize?) you of ways of free computing. Now, I think they are unreasonable as the next geek, but they are legally binding.

Re:I thought these were unenforceable

[Neoprofin]

I would say probably not, because the clerk is in no way a legal party to the contract existing between you and the software manufacturer and would logically be unable to impose legal responcibilities. IANAL, but that's about how I'd see if going down. Unless of course the software was distributed by Besy Buy etc or, quite possibly, if you bought direct from the distributer such as through Steam.

Re:I thought these were unenforceable

[moro_666]

cat EULA.txt > /dev/null && rm -rf EULA.txt

i never read this things, they wouldn't have any effect on me anyway, i use the computer stuff like i need to, not like some lawyers thought it would be sexy.

everybody who raises eula's (seriously), raise their hand ...

Re:I thought these were unenforceable

[towsonu2003]

IANAL (hate that acronym)

use TINLA instead...

Re:I thought these were unenforceable

[fossa]

Thanks for that link. I've seen the Shelky quote in a sig but never saw the context and wondered if was just a troll. The linked page focuses a lot on the Blizzard terms of service which I would think is very different from any software program that just runs on the user's computer and does not need to log on to Blizzard's servers (i.e. most software). It seems obvious that Blizzard can cancel the service (and cancel your bill) under any terms you agree to since the service involves Blizzard actually providing a service. With "normal" software, no service is provided; once the purchase is made the user needs nothing more to use the software. The only other case mentioned is the ProCD case which I am unfamiliar with but apparently involved someone copying a (not copyrightable) phone book from a CD of some phone book software (in violation of the EULA) and then making competing phone book software. If my assumptions are correct, that would not seem to bode well for the "EULA is not a valid contract" argument.

So, anyone have any more links or info on this subject? It just seems wrong to sell software in a box, much like a book, and then spring a EULA onto the user after he's gone to the trouble to buy and begin installing the damned thing. And what of the user modifying the EULA before clicking agree (even mailing the changes to the company)? This is possible with a large amount of software. I've also heard it's possible to do automated installation where the EULA is never even presented. Will the court simply assume that a EULA is to be expected these days and therefore it's up to the user to find it?

Re:I thought these were unenforceable

[Anonymous Coward]

That's why here in the Netherlands EULA's have no legal status: it doesn't matter if I click agree or not, no company can claim rights like this (at least, overhere).

Re:I thought these were unenforceable

[Anonymous Coward]

Here is a program for Windows that does just that.
Windows License Disagreement Tool

Just run it, then drag the target over the license. Double-click the target, and the license changes to whatever you want. Alternatively, it lets you enable the "Next" button on the install even if you have "I disagree" selected.

Re:I thought these were unenforceable

[pegr]

First sale doctrine... fair use... Unless it has my signature on it, why read anything else?

Re:I thought these were unenforceable

[cortana]

What contract between me and the publisher? I am just exchanging some cash for a shiny disk. The publisher doesn't come into it. :)

Re:I thought these were unenforceable

[cpt kangarooski]

Duress is an interesting argument to make, but I haven't seen it argued seriously before. Generally the split has been between ProCD (which favors EULAs) and Klocek (which does not). But the recent Blizzard case somewhat undercut Klocek, so I'd generally say that you can rely on EULAs being enforcable. Of course, that's a general statement; whether or not a specific EULA is enforcable will depend on the details of what it says, what alternatives you have aside from agreeing to it, the circumstances under which it was formed, the nature of the parties, the applicable law, etc.

Re:I thought these were unenforceable

[hackstraw]

In this case I'm not even sure that it would be an adhesion contract- depending on the software, there's usually a competing product that would be (if not ideal) practicable for your purpose.

There is nothing binding in a EULA. They are basically something that lawyers have invented to give themselves some extra cash.

EULAs are given to minors just the same as adults, and minors are not eligible to sign a contract. They merely have to click on the "Accept" button to install the software just like the rest of us. Many adults will not sign a contract without consulting their lawyer first, but most of those people will click the Accept button because that is required to install the software.

EULAs are not given before the contract of sale. Most of the time they are hidden until after the sale, and even some of the more respectable software companies are likely to change the EULA at any given time. Its very, very difficult to find a software reseller that will refund your money if you do not agree with the EULA after the purchase. If the users, resellers, and company who supplied the EULA do not honor it, why does it matter at all?

Most all software comes with no warrantee. A EULA might have some merit if the software came with a warrantee and the EULA stated things like, "Warrantee is invalid and void if user uses this software for illegal activity according to the user's local, state, and federal governments". Something like that might make sense.

Re:I thought these were unenforceable

[mrchaotica]

I would say probably not, because the clerk is in no way a legal party to the contract existing between you and the software manufacturer and would logically be unable to impose legal responcibilities.

And I am in no way a legal party to the contract existing (if there is one) between the store and the software manufacturer, and would logically not be subject to any legal responsibilities imposed on the store.

And since I also am not a party to any legal contract existing between me and the store, then I'm not a party to any contract at all. I bought a product and am free to use it any way I wish by the Doctrine of First Sale, regardless of what irrelevant text is contained in it!

Re:I thought these were unenforceable

[Urusai]

IANAL, but I took a business law correspondence class one semester, so I'm almost as good as one.

I notice that Shelkey does not mention "intent" as the fourth requirement of a contract; however, intent is usually assumed in the acceptance, and you'd have to prove duress or the inability to formulate intent (incompetence, drunkenness, etc.) to use it as an escape. IMO, EULAs aren't contracts, they are licenses like the GPL and enforceable under copyright law, not contract law, and would most definitely be considered a contract of adhesion if considered as a contract. BTW, I got an A in that class.

Re:I thought these were unenforceable

[mrchaotica]

You're confusing duress and adhesion. There is nothing per se invalid about contracts of adhesion (ie, you only have one source for a certain thing).

No, he's not. EULAs are contracts forged under duress because you've already bought the software before the EULA is presented to you! You have no choice but to click the button because that's what you have to do to get the software to work, and you are already entitled to have it work because you've already bought it!

Re:I thought these were unenforceable

[Rydia]

You can still repudiate sale- so long as you read the EULA and reject it in a reasonable time, you may return it to the vendor or publisher. Sales don't end at purchase, as far as contracts go.

Re:I thought these were unenforceable

[Rydia]

Just become something is explicitly legal in a jurisdiction doesn't mean a party can't contract out of that right. This is incredibly common, even, and shows up often in covenants not to compete and thousands of other venues. Similarly, practicability of enforcement doesn't negate any terms or conditions in a contract.

You say that contracts of adhesion are just inequity of bargaining position, but it is very hard for a court to find a "take it or leave it" type of disparity in bargaining position when the purchaser has a separate, bona fide option for what they are attempting to contract for. As a result, you do not see courts calling adhesion contracts illegal unless there is a real question of unconcionability or the parties make up a bilateral monopoly.

Re:I thought these were unenforceable

[slashdot.org]

There is a common perception that EULAs have not been tested in court. This is incorrect. They have been.

Yes, and that's very sad. Because there are many other very valid arguments to support the idea of them being invalid. (other then the ones mentioned by parent & sibblings)

For starters, EULAs are such complicated documents that a normal person can not be expected to fully understand them. These legally binding contracts are created by teams of lawyers, under any other situation you wouldn't think twice to have your own lawyer review it. But in this case that would often come at a cost several times that of the product. It'd be interesting to see if there are any other so widely used products to which the same applies. Me thinks not.

An average user uses, say, between 20-100 pieces of software/websites per year, resulting in a huge financial burden to have every single EULA reviewed by a lawyer. If we are just talking 1 hour for a $300/hr lawyer, we are talking $6K-$30K a year, which is obviously not in the ballpark for an average user.

Still, either if you get a lawyer to review EULAs or you read it yourself, it adds a significant burden on your time as well. In case of using a lawyer it means that you simply can not continue on a path and have to wait for a x day turn around. If you read it yourself you can expect to spend more time reading than actually using the product. (how often doesn't it turn out a piece of software/website is crap?)

Well, I think you catch my drift, I think EULAs are totally out of control and absolutely unreasonable considering the average product they are attached to. Even for the best of products, if you take a product in a different field at the same price/importance level, no one is going to expect agreeing a 20 page contract. I understand that software is different than most tangible things, but a $20 piece of software is pretty similar to a just released CD.

The problem is, we are just putting up with it, because it easy.

Re:I thought these were unenforceable

[hackstraw]

EULAs are not binding legally, ethically, or practically.

TOSes are. A business reserves the right to refuse service to anyone. I cannot expect service from McDonalds when I'm sitting there for days on end with a toy gun in my hand threatening to kill anyone in the store.

If I don't agree with a EULA, I can and will still use the software. If I do not agree with a TOS and the service provider terminates my service, I'm SOL.

Software is software. Maintenance contracts, updates, customer support, are a service. If I don't meet the minimum for said service, I get no service. In fact, the company is entitled to go out of business and terminate such service if they feel like it.

Re:I thought these were unenforceable

[networkBoy]

More important, if you do not agree to the EULA (but you had to open the package and load the software to see it) then what?
I purchased a piece of software once and teh paper EULA referred to the install EULA. When I went to install the software, it turned out that one of the required "helper apps" (DRM) would kill my other tools, I thus did not install this application and attempted to return it, only to be told that the software was opened and "no dice". I pointed out the issue and the fact that the software's execution was protected by a dongle, which was present and that even if I had loaded it on my PC it was now worthless (nevermind soft ice). They still refused to refund my card, so I left the software on the service counter in the managers presence and left the store, follwed by a call to VISA and a chargeback. VISA had no problem with my argument and gave me my refund.
-nB

Re:I thought these were unenforceable

[ratboy666]

No -- the REAL question about the EULA is if it is a contract. I didn't sign it, I received LESS than nothing as consideration.

I don't think so, and I'll go to court to argue that. So, copyright law AND NOTHING ELSE applies.

End of story.

Ratboy

Re:I thought these were unenforceable

[AhtirTano]

EULAs are not binding legally[...]

Source please.

ethically

Irrelevant. Legality has nothing to do with ethics, unfortunately. You can choose to ignore a law to make a point, but you should be aware when you are doing so.

or practically Irrelevant. That just means you aren't likely to get prosecuted. You're just playing the odds.

Re:I thought these were unenforceable

[Anonymous Coward]

IMO, EULAs aren't contracts, they are licenses like the GPL and enforceable under copyright law, not contract law, and would most definitely be considered a contract of adhesion if considered as a contract. BTW, I got an A in that class.

There's a "little" hole there, GPL grants you rights, EULAs take away rights.

Re:I thought these were unenforceable

[hackstraw]

EULAs are not binding legally[...]

Source please.

I'm sorry, I can't provide evidence for something that has never happened.

Here is an example of a class action lawsuit from users against a company's EULA: http://news.com.com/2100-1001-983988.html

Here is some info regarding your rights under a EULA: http://www.eff.org/wp/eula.php

There is no button when displaying a EULA that says, "I cannot agree or disagree with this EULA because I am under the age of 18 and not able to agree or disagree with legally binding contracts".

Re:I thought these were unenforceable

[redelm]

Has the "reaching" argument been dismissed: Shrink-wrap EULAs are invalid because contract was agreed to (sale made) without notice/availability of the EULA terms?

I can see click-thru being valid (so long as licence agrrement click is made before CC#).

Re:I thought these were unenforceable

[mrchaotica]

Tell that to the vendor's [no] return policy!

Re:I thought these were unenforceable

[Pofy]

>Do you send a letter to the company after purchase saying "my use of this program is subject to
>included terms and conditions?" If not, you're not talking about the same thing.

Why would you send it back? Do you send your acceptance of their proposal back? Perhaps contract law are different were you live than were I live but here a contract is an offer from one pary to another and then an acceptance of it back to the original party. Unless the one that makes the offer for a contract get an acceptance BACK to him, there is no contract.

Re:I thought these were unenforceable

[Pofy]

>I would say probably not, because the clerk is in no way a legal party to the contract existing between
>you and the software manufacturer and would logically be unable to impose legal responcibilities.

And just HOW do you propse the software company is a legal party to the contract (of purchase) between you and the shop? A typical EULA will change and or modify that purchase in various ways.

Re:I thought these were unenforceable

[Pofy]

> Sales don't end at purchase, as far as contracts go.

Huh? A sale of something ends the moment you exchange money for the goods and leave the store.

Re:I thought these were unenforceable

[Buran]

They can tell it to my credit card company's chargeback and associated chargeback fee.

Re:I thought these were unenforceable

[tepples]

If I don't agree with a EULA, I can and will still use the software.

If the software is encrypted on the disc, how will you still use the software without either 1. going through the EULA-guarded installer, 2. willfully violating the DMCA or foreign counterparts, or 3. going through the immigration process in order to use the software in a territory where the DMCA or foreign counterparts does not apply?

Re:I thought these were unenforceable

[penguin-collective]

Just become something is explicitly legal in a jurisdiction doesn't mean a party can't contract out of that right.

Who are you responding to? I didn't write that.

In any case, that is why there are rights you cannot waive in a contract.

As a result, you do not see courts calling adhesion contracts illegal unless there is a real question of unconcionability or the parties make up a bilateral monopoly.

You like responding to your own points, don't you? I didn't say that those contracts are "illegal", I said that courts will take the disparity into account when disputes arise.

Re:I thought these were unenforceable

[Fulcrum of Evil]

EULAs are given to minors just the same as adults, and minors are not eligible to sign a contract.

Yes they are. They can repudiate the contract without consequence, so be careful about contracting with a minor.

Most all software comes with no warrantee. A EULA might have some merit if the software came with a warrantee and the EULA stated things like, "Warrantee is invalid and void if user uses this software for illegal activity according to the user's local, state, and federal governments". Something like that might make sense.

Yes, that might actually be consideration. As it is, the software company offers me nothing in exchange for restrictions on what I can do with their stuff. What sort of idiot accepts that?

Re:I thought these were unenforceable

[flimflammer]

Kids shouldn't be signing contracts anyway. That's for the big grown-ups to do.

Re:I thought these were unenforceable

[Shajenko42]

And since I also am not a party to any legal contract existing between me and the store, then I'm not a party to any contract at all.

Technically not true. The contract between you and the store was money for a box with software inside it. It's called an implied contract.

Of course, you fully complied with the terms of this contract by giving them the money, so you have no further obligation to them.

Re:I thought these were unenforceable

[AhtirTano]

Did you even read either of the articles?

The first was a lawsuit over not being able to get your money back when you don't agree with the EULA. That's not about EULAs being legally binding at all. And that case is over with the result that the companies settled and made the EULAs readable online.

As for the EFF article, you missed some crucial sentences:

Although there has been some controversy over whether these agreements are enforceable, several courts have upheld their legitimacy.

That means that at least some EULAs are legally binding. Match that with quotes like:

They [consumers] also click away their right to customize or even repair their devices

That goes along with the claim that some terms of some EULAs (at least) are binding. One of the few bits that match your interpretation is:

There are countless terms written into EULAs that could potentially harm consumers, or that may be downright unlawful.

That doesn't mean EULAs are not legally enforceable, it means some parts of some EULAs may be unenforcable. That's true of any legally binding contract. Let's end with this quote:

Many people treat EULAs with the same reverence they do the tags on mattresses that say, "Do not remove this tag under penalty of law." They scoff at the idea that anyone could enforce such a bizarre rule. Increasingly, however, we are seeing consumers and software developers threatened with lawsuits for engaging in the digital equivalent of ripping tags off a mattress.

Re:I thought these were unenforceable

[Tired_Blood]

A system on the box akin nutritional facts is a fantastic idea- if it were done properly as a standard, it would clear up a lot of confusion regarding EULAs.

I'm pleased to see that I'm not the only one to understand and encourage the concept (mentioned in passing here: clicky).

Of course, using such a system makes hiding controvertial clauses problematic: a change that many current publishers would not willingly adopt.

The biggest difficulty to adoption is formulating the standard/reference, but the biggest deterrence is the effective indifference by the vast majority of end-users (with the corresponding lack of economic influence toward such adoption).

It's discouraging from a practical POV since, why should a company bother if most people just click "I agree" to anything being presented?

Re:I thought these were unenforceable

[Anonymous Coward]

Bullshit. Bull fucking shit. This isn't the doctrine of first sale. That prevents the publisher from keeping you from reselling the book. It is the doctrine of contracts. A contract, completed upon the sale of the software to a consumer, gives ownership of that expressive material to the consumer (sans the copyright). And it does not matter one fucking whit if contained in that expressive material is another contract the author or publisher would like you to agree to. You already completed your purchase. You already own the expressive material. You can make full and complete fair use of the material. And you do not have to agree to another fucking thing to do so.

Re:I thought these were unenforceable

[geminidomino]

everybody who raises eula's (seriously), raise their hand ...

Yeeup, Ah gots me some 40 acres, raisin' fine, quality free-range EULAs. None o' that there gamey Redmond stuff. Jus' high-quality legal bullshit from this here farm, boy.

Re:I thought these were unenforceable

[Anonymous Coward]

"Many people treat EULAs with the same reverence they do the tags on mattresses that say, "Do not remove this tag under penalty of law." They scoff at the idea that anyone could enforce such a bizarre rule. Increasingly, however, we are seeing consumers and software developers threatened with lawsuits for engaging in the digital equivalent of ripping tags off a mattress."

Why did you include such a stupid quote? Are you trying to be ironic? The matress tags say "not to be removed EXCEPT BY CONSUMER." The rule is not bizarre. THe consumers can do what they want with the tag, but nobody else. The only thing is that consumers pay as much attention to the tags as they to to EULAs.

Re:I thought these were unenforceable

[anthony_dipierro]

Courts don't expect publisher to shrink long contracts that are of reasonable length for their purpose down to the size of a box, nor is it their responsibility to have a printed copy in the store, as the publisher does not control the store.

Well that's the problem, isn't it. The contract that I arguably agree to when I buy the software from the store is between me and the store, the publisher is not a party to it.

I don't know of a court case where an EULA ever held up that the product wasn't purchased directly from the publisher.

Re:I thought these were unenforceable

[senatorpjt]

Courts don't expect publisher to shrink long contracts that are of reasonable length for their purpose down to the size of a box

A contract that won't fit on the box seems to be the very definition of unreasonable length.

Re:I thought these were unenforceable

[senatorpjt]

And, in fact, for GPL software, accepting the GPL is optional. You may continue to use the software under plain copyright law.

Re:I thought these were unenforceable

[anthony_dipierro]

Or do what I do - change them to something you do agree to.

That's what I do with all my mattresses. Now the tag says "Do remove under penalty of law"!

Re:I thought these were unenforceable

[anthony_dipierro]

The only other case mentioned is the ProCD case which I am unfamiliar with but apparently involved someone copying a (not copyrightable) phone book from a CD of some phone book software (in violation of the EULA) and then making competing phone book software. If my assumptions are correct, that would not seem to bode well for the "EULA is not a valid contract" argument.

One key distinction between the ProCD case and most instances of shrinkwrap licenses is that the ProCD software was purchased directly from the manufacturer. The courts analogies to insurance contracts and airline ticket contracts make sense in this instance (and the Blizzard one, for that matter). But if, on the other hand, you buy a copy of Windows from Best Buy, any common law contract formed would be between you and Best Buy, not between you and Microsoft.

Re:I thought these were unenforceable

[anthony_dipierro]

What does that mean? Mexican birth rates are already declining, and they're currently about equal to US birth rates. If the Earth loses a significant amount of habitable land, this trend will most likely continue.

Re:I thought these were unenforceable

[lpq]

If I update a Windows machine with their auto-update, I'm still required to read a long EULA and press 'ok'. MS has no problem with putting in a EULA change with each upate. So everyone who updates their computer once a month should be rereading EULA's to look for possible changes? What, you don't like it? It's a critical security fix...so a EULA agreement there would be enforceable? That's outrageous.

Re:I thought these were unenforceable

[Neoprofin]

The shop that sells you software can't void the EULA of the software, they're in no way invovled in the agreement between you and the software company. Thus, as I said, the contract you make with the store has absolutely no bearing on your contract with the software company, making it logically impossible for you to negate a software EULA by having the retail clerk enter into an EULA with you.

Re:I thought these were unenforceable

[Neoprofin]

The EULA is an agreement between you and the software company, not you and the merchant that sold it to you. As I state in a sibling post: "The shop that sells you software can't void the EULA of the software, they're in no way invovled in the agreement between you and the software company. Thus, as I said, the contract you make with the store has absolutely no bearing on your contract with the software company, making it logically impossible for you to negate a software EULA by having the retail clerk enter into an EULA with you."

Re:I thought these were unenforceable

[Pofy]

>The shop that sells you software can't void the EULA of the software,

You got it backwards, the software company tries to void and/or affect and modify the sale contract between you and the shop, which was my point and comment, just as you say the clerk can't affect an agreement between you and the software company, neither can a software company affect the agreement between you and the shop, yet that is what almost every single EULA does in some way or another.

Re:I thought these were unenforceable

[mpe]

Do you send a letter to the company after purchase saying "my use of this program is subject to included terms and conditions?"

Also including "By opening the (sealed) envelope you have agreed to these terms and conditions". Which is the same mechanism many EULAs claim for validity.

Re:I thought these were unenforceable

[myowntrueself]

They are basically something that lawyers have invented to give themselves some extra cash.

Doesn't that cover almost the entirety of the legal system??

Re:I thought these were unenforceable

[RenatoRam]

Yes they are

No, the are not. Not in Italy, and not in a lof of other countries.

Re:I thought these were unenforceable

[Neoprofin]

I would disagree. Legally you don't own the software you've bought, only the right to lease the code from the maker for the purpose of temporary use. A retail clerk doesn't sell you the right to use that software, he sells you the means to access it. When you agree to the EULA you agree not only to have a disc with code on it, which is all the cleak has given you, but to be granter their permission to use that code. And until you have agreed all you've got is a disc and nothing more.

Ticketmaster doesn't sell you being at the concert, ticketmaster sells you a ticket to get in. Would you say that if a venue kicks you out that they've infringed on the contract that you made with ticketmaster to see the show? No, because although ticketmaster and you had an agreement, by entering the concert hall there are a whole other set of rules one must abide by, if you refused to go to a concert at Madison Square Garder because they would put an ink stamp on your hand or make you walk through a metal detector then your behavior is completely beyond ticketmasters realm of caring.

Re:I thought these were unenforceable

[Pofy]

>I would disagree. Legally you don't own the software you've bought, only the right to lease the code
>from the maker for the purpose of temporary use.

What a warped idea. Please refer to any law that states that you don't own something you buy, that is the whole concept of buying. Why do people consistantly claim that software is an exception? When you buy software, you become the owner of a copy of the software, period. Of course, you can lease something as well, that is common for example in shops were you can rent a DVD, or a car and so on. The very same thing can for sure be set up for software although I have yet to see one.

>A retail clerk doesn't sell you the right to use that software,

Just as he doesn't sell me "the right to use" the toaster he might as well sell. You don't need to buy any "right to use" at all.

>he sells you the means to access it.

No, he sells a copy of the software, at least in every single computer software shop I have ever been to or seen. I have not seen a shop were they only sell "access to the toaster" either for the record.

>When you agree to the EULA

You never agree to any EULA when purchasing software, at least I have never done so, and in the few cases were that might be so, it is never an agreement with the shop, which would be the one regulating the purchase anyway.

>you agree not only to have a disc with code on it, which is all the cleak has given you, but to be
>granter their permission to use that code.

What do you mean "agree to have a disc"? You allready have a disc, you purshcased it. In addition, you don't need ANY persmission to "use the code". There is nothing in, for example copyright law forbiding you to use it, nor is such use an exclusive right of the copyright holder. It is a non copyright issue.

>And until you have agreed all you've got is a disc and nothing more.

And you can use it just like anything else, for example run it and the software on it.

>Ticketmaster doesn't sell you being at the concert, ticketmaster sells you a ticket to get in.

When did software start to be a show or performace you went to to look or listen to? You don't need to pay any entrance to any place to get software. Software is sold as physical goods normally (typically comes on a CD or DVD these days).

>Would you say that if a venue kicks you out that they've infringed on the contract that you made
>with ticketmaster to see the show?

If someone kicks me out for no reason from a show I have payed for to enter, they are not fullfilling the service they sold to me and would violate consumer sales laws. Typically you don't refer to it as infringing a contract though. The same applies if you buy a toaster and it doesn't work or if you buy the service for someone to come and fix your roof and they fail to do so and so on.

Going to a concert is slightly different form biuying goods though since it is a service, although many things still apply. Hence your excerizise in discussing what applies at a concert is quite irsellevant although might be interesting in itself.

Re:I thought these were unenforceable

[Neoprofin]

"You never agree to any EULA when purchasing software, at least I have never done so, and in the few cases were that might be so, it is never an agreement with the shop, which would be the one regulating the purchase anyway."

Exactly my point. It's not a contract with the clerk, and thus he cannot void the EULA by entering into a EULA with you governing your purchase of the softwere. It's two different agreements affecting three different parties.

66 ?

[Phil246]

66 respondants is statistically insignificant. They might as well have said " 66 people say that the sky is falling "

Re:66 ?

[Mayhem178]

What!?! The sky is falling? 66 people say so? That's almost like, 666 people! The end times have come! It's every man for himself!!!!

Re:66 ?

[lubricated]

>> 66 respondants is statistically insignificant. They might as well have said " 66 people say that the sky is falling "

and how many stat courses did you take? 66 could be statistically significant, if one insured that each sample was i.i.d.
Drawing confidence intervals would be trivial.

Re:66 ?

[rbochan]

The sky is falling.

There's one.

Re:66 ?

[The Snowman]

More importantly than picking a large sample size is picking a good sample -- quality over quantity. However, you still need enough people compared to your population. This number need not be very large, which is why sampling around 1,000 people out of 290,000,000 is statistically accurate. The real question, and I did not RTFA, is how large the population is and who is in it? Then you pick a good representative sample, using all those fancy statistics equations to figure out what size sample you need for your desired confidence level, and go survey.

Re:66 ?

[towsonu2003]

66 respondants is statistically insignificant.

anything above N=30 in each category (A, B, C etc) will give you statistical significance. But the article isn't doing an ANOVA, and not everyone cares about statistics (too flexible to support any lie).

Re:66 ?

[spxero]

The sky is falling. There's two.

Re:66 ?

[lubricated]

>> However, you still need enough people compared to your population.

not really you can assume an infinite population and you can still get enough of a sample. There is an assymptote and the population of the US is big enough that you may as well. I went and quickly computed the parametric-bootstrap estimate of the 95% confidence interval. It is .66 +- .10. Enough that you could be resonable sure that most people don't read the EULA.

>> Then you pick a good representative sample, using all those fancy statistics equations to figure out what size sample you need for your desired confidence level, and go survey.

in an ideal world. In the world I work in, I use the fancy statistics equations to put a confidence interval given some data.
Actually it's not even that good, I use computational techniques to estimate the confidence interval. Though it's beside the point.
I also did not RTFA, but my prior belief is that it's not very good data. Press releases like this seldom have good data.

Re:66 ?

[Main Gauche]

"However, you still need enough people compared to your population."

For some reason people think the size of the population matters. It usually doesn't. Only if you're going to survey more than roughly 10% of the total population does population size start to have any significant effect on size of the confidence interval size.

"This number need not be very large, which is why sampling around 1,000 people out of 290,000,000 is statistically accurate."

Just about as accurate as sampling 1,000 out of 290,000,000,000, for the reason I stated above. (I'll spare us the fancy equations.)

Grandparent is right; when done scientifically, a poll of size n=66 still provides some information. The so-called "margin of error" will be a little over 10 percentage points, but that's better than nothing.

The real problem here is the "informality" of the survey, or as you called it "quality over quantity." I'm still trying to figure out why this is worthy of a /. article. If I put my tinfoil hat back on, I could probably figure it out...

Re:66 ?

[Anonymous Coward]

As a statistician, sample sizes are never "statisticall significant". Results of statistical tests, usually stated in terms of a p-value, are deemed to be statistically significant or not. And in many common cases, a random sample (which the cited poll is not) of 66 subjects is more than plenty to get statistical significance. It all depends on how large of an effect you want to show. You clearly by your terminology have no idea what you're talking about, and I would request you don't discuss matters statistical any longer! No wonder people don't trust statistics if you're the type of person doing them!

Re:66 ?

[lubricated]

oops that was the 90% confidence interval. The 95% would be approximately .66 +- .115, just a little different.
I assumed an infinite population size. The real interval would be slightly smaller, but I don't have enough significant digits anyway.
and of course I assumed good data. So I don't really put that much confidence in this releases data.

Re:66 ?

[hackstraw]

66 respondants is statistically insignificant.

In statistics speak, there is significant and nonsignificant. Insignificant has no significance statistically. Its an opinion.

Yes, I realize this is splitting hairs, but I've been corrected by statisticians and scientists when I used insignificant with respect to statistics.

The difference is that "in" as a prefix implies human perception to mean "not", "non" as a prefix means "not".

nonedible implies things like rocks and sewer gas these things cannot be eaten.

inedible food implies things like rotten cheese or something that tastes bad. Its something that could be eaten, but for some reason, it cannot be eaten due to the current circumstances, which could be personal preference. A noneditable rock is not a matter of preference.

Re:66 ?

[tepples]

The sky is falling.

(Stuart Little could beat Chicken Little's [CENSORED].)

I was thinking the same thing...

[Anonymous Coward]

...that EULA terms could be made more consumer friendly with XML metadata.

-R. Goldberg.

33% of the respondants read EULAs completely...

[jfclavette]

while 66% of the respondants have a life. Oh and.. 66 respondants, now THAT's a representative sample.

Re:33% of the respondants read EULAs completely...

[Midnight Thunder]

while 66% of the respondants have a life. Oh and.. 66 respondants, now THAT's a representative sample.

I go with other statistics:
      - pieces of installed by people I know: 50+
      - number of times a EULA has actually been read by people I know probably less than 10. Most admit not to having read one.
      - readability of those that I have read 10% (whole blocks of capital letters reduce it even more).
      - trying to keep up with changing terms for the same piece of software: bloody nightmare
      - number of times I know I have been screwed by one = number of times warned by /.

Most numbers made up, but close to what it feels to me :)

Either way EULAs need plenty of work in clarity and making it easier to read by people who have other stuff to do. We call up support because the software is too complicated, maybe we should do the same for EULAs?

Yes

[dotpavan]

I'm still thinking that 33% of respondants lied if they say they always completely read the EULA.

Yes, you are right, they answered it that way because they hadnt read the question completely. :)

Interesting... but won't get used

[paladinwannabe2]

I would love to have a clear EULA like this on software I run- it lets me know exactly what the program is going to do (and any limitations I have on legally using it). Most companies that collect personal information, alter programs, or monitor your system don't want everyone to know exactly what they are doing, though- they want people to agree to the EULA without knowing what they are agreeing to.

Caps Lock

[kryten_nl]

PROBABLY BECAUSE READING ALL UPPERCASE LETTERS IS SO ANNOYING.

And a little more white space didn't kill anyone (at least I'm fairely certain of it). In short, the EULA's I've seen, are designed to annoy the reader as much as possible.

Re:Caps Lock

[The Snowman]

All caps, little white space, and tiny text boxes. I've seen them with three or four lines of text visible but the EULA is just huge, at least a hundred lines.

The best EULAs I have read are ones on web sites. The first one that pops into my mind is Sun's Java EULA. I make no claim about the contents, just the presentation -- I like it. You get to see the whole thing very easily. You are presented with the EULA before the software, unlike shrinkwrap EULAs. Contrast that to some of the shrinkwrap EULAs I've read, and it's night and day.

Re:Caps Lock

[Caine Hill]

100% true. Just as egregious is the way that the EULA is typically displayed to you in a window 4-6 lines high, and 30-40 characters wide. Given the size of computer displays, and the ease of providing a resizeable text window, there's no reason to hard code such a small viewport onto the document. Unless the publishers of the EULA don't want people to actually read the EULA. It's akin to giving someone a written contract, but only allowing them to read the contract through a cardboard cover that has a hole one inch by two inches.

It'd be different if a few more companies actually wrote terse licenses, or at least providing a means to print the EULA before agreement. Not that printing is a perfect solution, but at least it gives some way to read the license.

Frankly, I think most of the software companies have shot themselves in the foot, at least with regards to criminal cases : very few juries would believe that the software publisher hadn't deliberately made it difficult, and unlikely, for a potential user to read the license before agreeing.

Re:Caps Lock

[Fulcrum of Evil]

You are presented with the EULA before the software, unlike shrinkwrap EULAs.

You also aren't paying for the software, so they are arguably trading something of value for your acceptance.

Re:Caps Lock

[The Snowman]

That is a very good point, but I have purchased software delivered electronically where I either was forced to read the EULA before purchasing or at least had the opportunity. I seem to remember some image or video editor, but it's been a while. I don't buy software anymore except for games, thanks to free software.

Two words:

[mustafap]

I agree

Re:Two words:

[Anonymous Coward]

Me too!

New EULA Guidelines

[Gunfighter]

I can see them now, nice and bulleted for the undereducated, illiterate masses the US public education system is spewing forth:

• Don't steal this software
• We're not liable for any bad stuff caused by this software
• We don't guarantee this software will do what we actually say it will do
• Install this software, and it means you let us control your computer
• Install this software, and you give up all your privacy rights
• Assimilate to the borg controlling this software
• Install this software, and you agree to cut down the mightest tree in the forest
• (with a herring)
• etc. etc.

Re:New EULA Guidelines

[hackstraw]

• etc. etc.

• EULA conditions are subject to change without your notification

From http://privacy2.msn.com/tou/en-us/default.aspx :

2. HOW MICROSOFT MAY MODIFY THIS AGREEMENT

Microsoft reserves the right to change the terms, conditions, and notices under which it offers the MSN Web Sites, including any charges associated with the use of the MSN Web Sites. You are responsible for regularly reviewing these terms, conditions and notices, and any additional terms posted on any MSN Web Site. Your continued use of the MSN Web Sites after the effective date of such changes constitutes your acceptance of and agreement to such changes.

In other words, EULAs mean nothing to the end user and its not an agreement.

Re:New EULA Guidelines

[Travelsonic]

Don't steal this software

Sorry, I already don't shoplift. ^_^

Re:New EULA Guidelines

[Pusene]

Not to forget:

Profitt!!!11!!!one!!!

Good idea, but the guy doesn't get it

[Animats]

The guy has a good idea, but doesn't understand what to watch for in an EULA. Things like indemnification clauses, limitation of liability, waiving of consumer law rights, requirements to arbitrate in some place favorable to the vendor, and similar clauses need to be flagged. It's worth looking at those. Even within Microsoft's products, the clauses differ considerably. Their products aimed at business tend to have considerably more reasonable terms than the consumer products.

Re:Good idea, but the guy doesn't get it

[anthony_dipierro]

The guy has a good idea, but doesn't understand what to watch for in an EULA. Things like indemnification clauses, limitation of liability, waiving of consumer law rights, requirements to arbitrate in some place favorable to the vendor, and similar clauses need to be flagged. It's worth looking at those.

Only if you plan on suing the manufacturer. For most of us it's enough to assume we have no recourse against the manufacturer for anything that we could possibly waive in an EULA. If we expect some kind of warranty, OK, then maybe it's worth reading the EULA.

The Rules

[ZachPruckowski]

The first rule of the EULA is "We do not talk about the EULA"
The second rule of the EULA is "WE DO NOT TALK ABOUT THE EULA"
The third rule of the EULA is "You may not read the EULA"
The fourth and final rule of the EULA is "No matter what, everyone signs"

Move along

[Billosaur]

From Clearware.org:
Number of Voters: 92
First Vote: Sunday, 02 April 2006 03:22
Last Vote: Monday, 17 April 2006 16:24

Move along... Nothing to see here... this has been going on for over two weeks and has only 92 votes. This sample is so unrepresentative it's not funny. When they have well over 10,000 votes and have done a statistical analysis based on age, gender, household income, etc., let me know.

Re:Move along

[SComps]

Domain ID:D118697403-LROR
Domain Name:CLEARWARE.ORG
Created On:18-Mar-2006 15:55:54 UTC
Last Updated On:29-Mar-2006 12:06:06 UTC
Expiration Date:18-Mar-2007 15:55:54 UTC
Sponsoring Registrar:Tucows Inc. (R11-LROR)

Given that the domain has only been registered a month (give or take a day) that's to be expected; but yes I agree. Move along, nothing to see.

What there is to see--is another "org" formed to support the obvious. Come on folks? 2/3rds of people don't completely read long, confusing and officious legal documents? Perish the thought. Somebody has a great perception for the obvious.

Re:Move along

[flynt]

It is worse than that. Your comment is perhaps a bit misguided in two ways. First, even if this poll gets 10,000 particpants, we should still not trust it to provide us with results of the population at large, or even about the population of readers of that site. The reason is that the particpants are not being chosen randomly, they are self-selecting. Therefore, the only thing we can infer from this poll is about the actual participants in it. On the other hand, depending on what effects were interested in and population, 92 participants in a study or poll may be enough to show what we're after. It is entirely dependent on what we're studying and what we are interested in asking and answering. But there is no magic number that works in all situations, such as 30 or 1,000.

Re:Move along

[argmanah]

Move along... Nothing to see here... this has been going on for over two weeks and has only 92 votes. This sample is so unrepresentative it's not funny. When they have well over 10,000 votes and have done a statistical analysis based on age, gender, household income, etc., let me know.

It's true that the poll is flawed, but it's flawed because the respondants aren't chosen randomly, since the people who visit clearware.org are 1) people who are interested license agreements, and 2) more recently, the people who read slashdot. Two groups who probably read the EULA more than the average software user.

Sample size (especially given that the number of responses is growing rapidly due to the site getting /.'d) isn't the problem. There's a lot of misconceptions about the statistical math behind samples sizes and margin of error. The sample size needed doesn't have a linear relationship to the size of the population. For a poll covering a population of 200 million or so people, you only need a sample size of ~400 or so people to get a reasonable (+/- 5%) result. You do not need a poll in the 10,000+ range, because a result doesn't have to be right on the nose to be signifigant. A margin of error of 5% in a poll like this still makes a compelling point.

Next time you see a poll, don't dismiss it just because the sample size isn't in the thousands or tens of thousands. It doesn't have to be.

why not...

[penguin-collective]

just adopt the HAZMAT signage directly for software? I mean, it seems to cover pretty much the same ground.

neva

[jasen666]

I don't think I've ever read a EULA past the first sentence. Mostly because I don't care what it says. I'll do whatever I want with the software.

Paging Jakob Nielsen ...

[rewinn]

Actually, bullet points are not a bad idea in contracts. An agreement that is hard to understand is hard to agree to.

If we demand clarity in user interfaces and in coding, why not in contracts?

I'd love to see some eye-camera studies of people reading EULAs ... Paging Jakob Nielsen >

Warcraft example show out why "deeds" are useless

[Anonymous Coward]

Either Blizzard is lying or the Clearware "deed" is...
(See http://www.clearware.org/index.php?option=com_cont ent&task=view&id=7&Itemid=11)

[_] Age Limit. There is no age limit to use the software.

Also, this would pretty much seem to make the "deed" useless:

[_] Additional Terms. You agree to additional or modified terms or conditions.

What is an "EULA"?

[ettlz]

Eula (oi-LAH) n. Stage name for a Swiss mathematician turned gangsta rap artist.

Warcraft example shows why "deeds" are useless

[xxxJonBoyxxx]

Either Blizzard is lying or the Clearware "deed" is...
(See http://www.clearware.org/index.php?option=com_cont ent&task=view&id=7&Itemid=11 )

[_] Age Limit. There is no age limit to use the software.

Also, this would pretty much seem to make the "deed" useless:

[_] Additional Terms. You agree to additional or modified terms or conditions.

(Sorry for the 2post - meant to post this as a legit user.)

Why would any vendor do this voluntarily?

[dpbsmith]

The whole purposes of these EULAs is not to communicate clearly, nor to negotiate a good-faith bargain, but to manipulate consumers in putting their apparent agreement on record.

A landlord has no interest in pointing out that the "standard lease form" he shoves at you is one of many, and that he picked the most one-sided one he could find. He is certainly not going to say "Actually clause 16 is against the law and unenforceable in this state, but I hope you don't know that because most of my tenants don't and its a minor but valued source of extra profit for me."

Car rental companies were required to print their agreements in a certain type size so that at least it was possible to read them... if you didn't mind holding up a line of people behind you... and they responded by printing them in larger type, but using a color scheme of dark grey on white grey.

Food companies don't list their ingredients on the label because they like the idea, but because they were dragged kicking and screaming by the Pure Food and Drug Act and its successors. And they constantly negotiate for weaselly exceptions. For example, ingredients must be listed in order of predominance, but they are allowed to say "beef and pork" as long as the food includes both beef and pork, even if there is more pork than beef...

In what way would a clear-language EULA serve the interest of the vendor?

If it did, in fact, serve the interest of the vendor better than the current murky EULAs, I suspect some vendors would be using them already. If, as I believe, it does not serve the interest of the vendor, then why on earth would they agree to use them unless required to by law?

Re:Why would any vendor do this voluntarily?

[pruss]

A clearly stated EULA would allow for additional competition over terms, and hence be advantageous. Forthrightness about terms might serve a vendor well as a way of differentiating himself from competitors.

As far as I can tell, there is essentially zero competition over EULA terms for consumer software. Consumers neither know nor care about the terms.

But if the terms were clearly stated, this would create the opportunity for some vendors to surpass others. Given two otherwise equal pieces of tax software, I'd buy one that can be resold. Given two otherwise equally good word processors, I'd buy one that can be reverse engineered. Given a spreadsheet program that may be installed only on one computer and a spreadsheet program that may be installed on a desktop and a laptop (if I'm not mistaken, some Microsoft EULAs let you do that--this may be a rare instance where an EULA gives more rights than copyright law does), I would definitely prefer the latter.

All that said, I _might_ personally be a beneficiary of people not reading EULAs. As a sideline, I sell PalmOS utilities, and my EULA allows unlimited transfer between compatible devices. A lot of PalmOS software does not. I suspect that occasionally I have people who buy a new registration of the software even though they could have just beamed over their old registration to the new device. If there were a clear way to state terms, and if I weren't the only vendor doing so (which would make it look a bit weird), I could make it clearer to users in advertising (I don't believe in selling the same product over and over to the same customer). I might lose by it or conceivably gain by it.

Shocking...

[Peturrr]

I just had a look on the human readable version of the EULA for world of warcraft. It shocked me... !!

They give you very little rights to do anything than just play with the game... You accept that they collect information about you, your system, how you use your system etc. Something I really wouldn't allow if I knew this.

I really think that making the EULA's human readable, will shock more people because it will make them realise that the software limits them a lot in their personal freedom. Something they didn't knew before.

Could it be that such a project would motivate users to go to linux/opensource? What if a manager read the human readable EULA for let's say microsoft office?

An excellent way to confront non-tech users with the implications of non-free software

Re:Shocking...

[Obi-w00t]

Actually the warranty/EULA information or whatever name it is given will probably scare people into using inferior and expensive products over their superior and free counterparts. The reason for this is simple: people trust commercial software to agree to any of its conditions. What user (except a Slashdotter, perhaps) will look at a Microsoft EULA and say "wow I don't think I will trust this well-known company with my computer, even if it does give technical support". Whereas free/open source software will usually include documents that imply zero to no protection with little to no support if things go wrong. At least with commercial EULAs you have to browse a bit to get to the scary bits about invasion of privacy. Free/open source software documents often open with something like this:

This software is provided as is, and no warranty is expressed or implied, (Company) will not be held accountable for any damage or distress caused, directly or indirectly by the use of this software. By reading this notice and/or using the software you (the user) are agreeing to the terms of this written contract.

Most users will run a mile after reading something like that, flocking to the nearest wholesaler of privacy-infringing, compliance-ignoring tat.

Re:Shocking...

[Overzeetop]

What if a manager read the human readable EULA for let's say microsoft office?

A: He or she wouldn't give a shit.

Why? You're either not in compliance and don't care (because the chances of getting caught are so small), or you're in compliance for the moment and when you decide to stray from it you won't care (because the chances of getting caught are so small). More to the point, you use the software because you need to interoperate with the rest of your business peers, and your peers use Microsoft Office. There is no reasonable way for you, the lowly manager, to enact a software format change at all of your peer shops. Therefore, you play the game, because you play or you learn to play the 5 gallon bucket with a couple of dowel rods for the coins people throw at you to try and make you shut up. And people just don't want to shut you up badly enough to put your kids through college.

I do not want them to be friendly

[aepervius]

I want to be them obsfucate. And stay that way. I want them to stay as worthless as they are right now (contract law around here is saw that in the way an EULA is handled (aka putting restriction on use after sale) it is illegal).

There's just a problem...

[Kjella]

...those that draw up the EULA doesn't want it to be clear, nor short. Seriously, if you knew that the other party is going to sign it anyway, wouldn't you want to put in as many catches for the customer and freedoms for yourself as you can, preferably obscured both in terms of size and language? In the worst case, you can tell the customer "that's not what it says, you're reading it wrong" and in the worst case a court will say "no, that part of the EULA is not valid". You lose nothing by trying, not having a "standard" license isn't any disadvantage because there's no major standard.

I wish there was a "BSA General End-User License Agreement" which contained all the usual legalese, and if software wouldn't use it they'd need to "explain" why they can't use it. Then you could get some proper legal analysis of it that would be reusable on all other software using the same license. When DRM comes to enforce all the currently unenforcable restrictions, I think we will need it. As it is, I click "I Agree" and ignore with impunity because I can and because spending $1000 to have a lawyer go through a 20-page license for a $50 product where there's no room for negotiation is ridiculous.

To me, if it acts like a sale I treat it mostly like a sale. Copyright, limitations on number of installs/users, private/commercial use, disclaimers and perhaps a few other things ok, the rest... fuck off. The toothbrush company don't get to tell me when, what, how or where to brush my teeth, what brands of toothpaste works or how to use it together with mouth water and dental floss. And I mean that even if they put "By opening this packaging, you agree to the terms and conditions. If not, you can return it for a refund" on it.

Re:There's just a problem...

[flooey]

in the worst case a court will say "no, that part of the EULA is not valid".

Actually, I was pleased to read a couple years back about People of the State of New York v. Network Associates, where some of the language involved was considered deceptive, and the judge agreed. The Attorney General was asking for a fine of $0.50 per software copy sold with the language involved, which could be a major deterrant to putting unenforcable conditions into an EULA, but I can't find any reference to fines actually being assessed or the result of the appeal that Network Associates vowed to file, so I don't know if it actually amounted to anything. The potential is apparently there to have unenforcable portions of an EULA turn into a fine for deceptive trade practices, though.

Re:There's just a problem...

[Pofy]

> In the worst case, you can tell the customer "that's not what it says, you're reading it wrong"

And what makes you think they are the ones who get to decide how to read it? I don't know about the consumer sales law were you live, but in Europea, any contract term that is vague should ALWAYS be interpreted in favor of the consumer.

The problem is not the langauge, it's the content.

[RecycledElectrons]

The problem with EULAs is not the confusing legalese, it's the content. Would you buy a car from someone who demanded that you waive all rights to sue, even if he deliberately comitted fraud? Would you also agree that he still owned the car, and that he could grant you a license to drive it as long as you never benchmarked it (looked at the speedometer?) Would you agree that he could lock the wheels or take it back at any time for any reason?

And if you did agree to that with your boss'es money, would you expect to keep your job?

Anyone who agrees on behalf of a corporation to a typical commerical EULA is guilty of serious crimes, especially criminal negligence.

Andy Out!

Re:FIRST POST!!

[rbochan]

How is this informative?

You're correct, because calling a first-poster a douche bag should be modded redundant. ;o)

Its easy!

[MECC]

Just remember what the acronym stands for: End User Loses Always.

Context matters

[Beryllium Sphere(tm)]

If 66 people tell you that you're drunk then hand over your car keys.

Just what was needed

[Anonymous Coward]

Yesterday after trying to go through a long long online Efile tax program I thought someone needed to do this as these EULAs sometimes make no sense or are so tied up in legalnese that the average Joe (or even above average Joe) can't read with comprehension. I'll check out the site and hopefully it will be something good and uselful.

Not an issue

[voice_of_all_reason]

All EULA's have some sort of sentence near the top reading similar to: "By purchasing this product, you agree to..."

There's your loophole right there. The rest of you aren't actually paying for any of this crap, are you?

Re:Not an issue

[Ciggy]

By Purchasing this product you agree to...that you are actually only licencing this product.

Most EULAs actual say that you are only licencing the product, not purchasing it, otherwise you would actually own it and could do what you want with it. So either the EULA is self contradictory (if it refers to you purchasing the product), or the original sale was fraudulent, or both...

I like this one

[Avian visitor]

Their human readable summary of the WoW EULA says the following:

Do not use with other software or hardware.

How exactly should I be using it then, if I'm not allowed to use it together with an operating system or even a PC (as far as I know, Blizzard isn't selling either)?

Seriously, I don't see this coming into general use. Vendors like Claria probably want to use the legal language of their EULA to hide the fact that their products hijack user's computer. Also this isn't as elegant as the Creative Commons licenses that have only three options (commercial distribution/derivative works/licensing of derivative works)

My statistics...

[Anonymous Coward]

Well, given that the statistics from the site are nearly useless and this still made the front page, here are my statistics. In my casual observance of people installing software, I've never seen anyone read the entire EULA. As we've all seen, some installers force you to scroll to the end before allowing you to continue. In those cases, my test subjects typically utter something like "stupid lawyer bullshit" or something like that as they scroll to the bottom. I've seen other installers that change the key each time you install (this time it's F8, next time it's F3) which prevents people who install it from quickly skipping by the EULA because they have to actually read the instructions. These test subjects have typically cursed both the lawyers (e.g., "stupid lawyer bullshit") in addition to the software company (i.e., "damn Microsoft bastards").

I'd say I've observed around 30 subjects. So there's my data.

It's about the other stuff though, root kits, etc.

[WebHostingGuy]

I don't think he is worried about that; it is more an issue with things like: you agree to let us search your computer for cheat codes, install root kits to monitor DRM, etc. Even so, there are some states in the US which do require plain language contracts and that means all the legal limitations must be explained in plain english so a normal person can understand them.

Re:The problem is not the langauge, it's the conte

[silas_moeckel]

Sounds like a standard dog breeder contract.

this is a good thing

[pulse2600]

similar to care labels on clothing, nutrition facts on food and warnings on hazardous materials."


This is EXACTLY what we need...I envision a big label across the Windows Vista CD: "SURGEON GENERAL'S WARNING: VISTA MAY CAUSE LUNG CANCER, EMPHYSEMA, AND BIRTH DEFECTS."

Re:this is a good thing

[Spy der Mann]

"SURGEON GENERAL'S WARNING: VISTA MAY CAUSE LUNG CANCER, EMPHYSEMA, AND BIRTH DEFECTS."

Wish they had warning labels on XP.

"Surgeon General's Warning: Your may get gastritis and sudden rage attacks due to viruses, deleted data, and other annoyances caused by this product, including but not limited to HELLO THERE! Looks like you're reading an EULA!"

Re:this is a good thing

[zenhkim]

> Wish they had warning labels on XP.
>
> "Surgeon General's Warning: Your may get gastritis and sudden rage attacks due to viruses, deleted data, and other annoyances caused by this product, including but not limited to HELLO THERE! Looks like you're reading an EULA!"

Or something similar to the humorous "warning" that was printed on the packaging for Lemmings:

WARNING! Attempted installation and usage of this software may lead to
- loss of sleep
- loss of hair
- loss of sanity

EasyEULA.org

[danielmorrison]

This sounds very similar to my idea, which I recently outlined at http://easyeula.org/

EULA for the whole universe

[BartlebyScrivener]

Yeah, imagine what would happen if the whole universe was governed by a EULA ;>

Re:EULA for the whole universe

[Anonymous Coward]

The Jewish and Christian Religions would say there is, and it's pretty readable.

The Ten Commandments

Not wishing to flaimbait

[CaptainZapp]

and all that shit.

But seeing anything statistical based on a sample of whopping 66 sort of leave my hemerroids itching.

Hit the nail on the head

[gcranston]

They got it one hundred percent right. EULA's should come with:


"Warnings on hazardous materials."

There's a difference

[El_Muerte_TDS]

EULAs usually restrict the user in their freedom.
Licenses like those from CC usually grant users more freedom than they would get from the law (copyright, etc.).

I think abbreviating the legalisch restriction descriptions give users false hope.

WTF is EULA?

[Anonymous Coward]

I've never read any EULA's and I'll never will. I don't give a sh*t if it says I can't redistribute or reverse engeneer the software - I'll do that anyway :)
[ACCEPT]

eula wiki

[rjnagle]

lately, I've been trying to keep track of all of the EULA's I've been agreeing to. It's overwhelming.

This wiki
http://www.gripewiki.com/index.php/EULA_Library

is trying to keep a public record of eulas (along with some analysis).

Re:Open Letter to Zonk

[Whiney Mac Fanboy]

You are so right, I attacked everyone else who responded to that thread!

Gosh it must be hard being as insightful and informative as you are.

Anyway, I've lurked on /. for some time & have noticed your irritating tangentially ontopic comments appearing close to the top of the comments for some time.

As you seem to have no apparant agenda, I presume its because you're unemployed & bored that you post so often to slashdot, including anonymous (with a shallow attempt to cover your writing style) appeals to get yourself employed as an editor (deny it all you like, noone can really confirm or deny an anonymous post)

Lastly, I note the link you provided is currently modded -1 flamebait. I see at least some of the slashdot community agree with me that you're a whiney windows fanboy :-)

(smiley added so you have a chance to grab the joke as it wooshes over your head)

Here's my clarification

[nagora]

I paid for this. I own it. I can do what I like with it unless that breaks copyright law.

If you want more then I want a signed document from you stating what I get out of the contract. If you want it to be a licence then I want to know:

1. When does the license expire.
2. How do I cancel the contract early.
3. If you break the license, how do i get my money back

And finally: by asking me to accept an EULA, you agree that your product is free of defects and if any are found you will either refund my money or correct those defects within six months of their discovery.

TWW

Re:Here's my clarification

[Pofy]

>3. If you break the license, how do i get my money back

Problem is, in most EULA, there is NO way for them to break the contract since they promise nothing and have no responsaibilites.

Re:Here's my clarification

[nagora]

Problem is, in most EULA, there is NO way for them to break the contract since they promise nothing and have no responsaibilites.

That's partly my point, because in the UK at least such a "contract" can not be binding by its very nature. A contract must be bind both parties, ASAIK IANAL etc.

TWW

EULAs are software co. execs acting like children.

[Futurepower(R)]

Ed Foster's Gripelog is an excellent source of information about abusive EULAs.

Basically, EULAs are software company executives acting like 3-years-olds.

The ultimate EULA and ultimate dream of every 3-year-old:

1) I can do anything I like.

2) You have no power.

3) You will do everything I say.

Web Sites Prevent Reading EULA

[BoRegardless]

Many download sites make you click "Accept" buttons, but if you actually try to READ the damned 15-25 pages of the EULA, you find the web site "times out" and you can't then proceed with the purchase/registration process.

No wonder people don't read them. I don't do it online anymore.

Re:Web Sites Prevent Reading EULA

[Spy der Mann]

but if you actually try to READ the damned 15-25 pages of the EULA, you find the web site "times out" and you can't then proceed with the purchase/registration process.

That's because they assumme nobody will agree after reading the EULA, anyway: "Oh no they read the EULA, another lost sale :("

HOLY CRAP!!!

[Anonymous Coward]

I got TMM himself to post in my thread!!!

--
Trolling all trolls since 2001.

These guys don't get it.

[Medievalist]

The whole point is to get the user to click on the agreement without reading or understanding it.

I mean, get a clue. You think the EULA would be that hard to read if it wasn't intended to be?

Kill All The Lawyers

[Detritus]

I get depressed every time I read an EULA. They disclaim all responsibility and warranties, basically saying that if they deliver useless crap, you will just have to smile and be grateful that they relieved you of all that excess money. You have to be a lawyer to know what parts are enforceable, what parts are questionable, and what parts are legal bullshit. It isn't a negotiated agreement between two parties, it's the strong dictating terms to the weak.

Re:Kill All The Lawyers

[rsborg]

You have to be a lawyer to know what parts are enforceable, what parts are questionable, and what parts are legal bullshit.

You think that lawyers came up with those evil unenforceable terms? You know, behind every sleazy corporate laywer, there is an equally sleazy, childish, control-freak of a corporate executive.

Killing all the lawyers will just create a market for new ones. Stopping the source of the bullshit (or better yet, legislating a environment where spouting bullshit was legally actionable) would be a much better solution.

Save the Planet, Recycle an Environmentalist!

How typical. Advocating someone's demise is criminal in most countries, you know. (yeah I get your joke, but you have serious problems if you're suggesting certain types of people should be killed... you would fit in nicely in a nice autocratic dictatorship somewhere).

Re:Kill All The Lawyers

[Cheerio Boy]

How typical. Advocating someone's demise is criminal in most countries, you know. (yeah I get your joke, but you have serious problems if you're suggesting certain types of people should be killed... you would fit in nicely in a nice autocratic dictatorship somewhere).

How about Save the planet! Recycle a politician!

Dude. Lighten up. People make fun of this stuff because otherwise they'd be seriously tweaked after dealing with it day in and day out - or at least the end results of it that trickle down to them. It's a necesary release of emotion sometimes.

For instance buying the wrong software as a small business, for a large sum of money, then not being able to resell it due to the EULA terms would certainly cause serious enough stress that a release would be needed.

Or were you just trolling?

Re:The problem is not the langauge, it's the conte

[goldspider]

"Would you buy a car from someone who demanded that you waive all rights to sue, even if he deliberately comitted fraud?

Regardless of whether or not you'd be willing to agree to such a contract, it would be unenforcable on principle. A contract cannot waive criminal statutes.

Slight problem with lables...

[Anonymous Coward]

The other day I was asking my wife the temperature setting to wash my favorite sweatshirt. She replied with "What does it say on the shirt?" To which I replied "Seattle Seahawks".

I am not a lawyer

[Anonymous Coward]

but in my legal opinon as an annonymous coward on /. , shrink-wrapped, click-through license agreements are not binding. It's not a contract unless both parties can amend the language and send it back to the other party for acceptance. "Take it or leave it" is not a contract.

plus, I cross my fingers when pressing "accept", so neener-neener!

Remember the slashdot poll

[computergeek1200]

On the slashdot poll, most people said that they did not read the eula. I was one of them. Hopefully software compaines will not quiz you on the eula before installing the software. :(

Blame the Lawyers

[CodeBuster]

Speaking as a software engineer I can honestly say that I despise writing these things as much as most users do reading them. However, they are unfortunately very necessary in the often litigious society in which we live if for no other reason than to protect the author from frivolous litigation. Even if you give your software away for free you still have to include those clauses disclaiming liabilities for "loss of business" (on a free product no less, but some people really do have that much nerve), "merchantability", and/or "fitness for a particular purpose", and all the rest of that crap. If there were fewer asshat attorneys that sue anyone at the drop of hat then these types of verbose agreements would not be as necessary. You say "just use the GPL" but that is not always an option because of certain clauses in the GPL that limit ones ability to restrict access to trade secrets. I am not knocking the GPL, if you want to license your work under those terms then go ahead, but it is not always possible from a business standpoint. The excessive legalese in our society is an antibody to the excessive amount of litigation, in fact I have read, cannot remember the source, that the United States spends as much as 2% of GDP on lawsuits which is many times more than any other developed nation in the world. So we don't like those long EULAs either but the lawyers made us do it.

Re:Blame the Lawyers

[bnenning]

Even if you give your software away for free you still have to include those clauses disclaiming liabilities for "loss of business" (on a free product no less, but some people really do have that much nerve), "merchantability", and/or "fitness for a particular purpose", and all the rest of that crap.

Sure, but that's not a EULA. A EULA is "you would normally have these rights under copyright law, but we're taking them away in exchange for nothing". Warranty disclaimers are orthogonal.

Re:Blame the Lawyers

[kindbud]

Speaking as a software engineer I can honestly say that I despise writing these things as much as most users do reading them. However, they are unfortunately very necessary in the often litigious society in which we live if for no other reason than to protect the author from frivolous litigation.

Let's see about that. An EULA that says the customer cannot sue. The customer disagrees with this provision and sues. How did the EULA protect against a suit? Looks like it instead provides grounds to sue.

A record ! ! !

[Fantasio]

...."Your Rights Online: Making Sense of Software EULAs"

Two oxymorons in a single title ! ( ...huuum .....at least two ! )

66% way too low

[seven of five]

This is probably redundant comment but this means 1/3 of people read all the EULA's frequently. Ridiculous! The other day I signed on to chase.com site and they had not one but 2 EULA/terms of service etc barf quack, each one being at least five pages long.

Face it, these things are a complete joke. Nobody in their right mind believes any but an extremely atypical user is going to read the whole thing, then decide they don't like it, and not proceed using the service.

Try Eulalyzer

[Anonymous Coward]

The fine folks who make spyware blaster also have an app that you can dump the EULA into. It checks the language and gives warnings.

I tried it, and it was pretty interesting to see the results:

http://www.javacoolsoftware.com/eulalyzer.html

Another idea

[Phat_Tony]

I think this is a great idea.

Another idea I had was to make a WikiEULA, where people (with legal experience or not) would volunteer to read and summarize the EULA's of popular [things with EULA's] and post their summary/analysis. Then others could go there and quickly get the gist of what they're agreeing to rather than each person spending hours trying to figure it out on their own, or, more likely, ignoring it. If there's something particularly objectionable, it could be discussed, people might complain to the company, some people might even decide not-to-buy/to-boycott the software. It might draw attention to the most egregious cases, some of which might even turn into news stories, or at least show up on blogs. The increased awareness and the ability to browse, sort, categorize, and compare software based upon the meaning of their EULA's might pressure companies to make EULA's more reasonable and/or readable.

66 respondents ?

[Anonymous Coward]

sorry to be a spelling nazi, but it's respondents
and how are premature poll results considered news?

Are "licenses" subject to sales tax?

[DrVomact]

I've been wondering about this. A lot of EULAs seem to say (as far as I can understand them) that I don't really own a copy of the software--I just have a license to use it under the terms of said license. Now, if I'm obtaining a license and not really buying anything, can such a transaction be subject to sales tax? It's like charging sales tax when I put money in a parking meter--I'm not buying the parking space, just the right to use it for a limited time.

I'm probably completely of the mark...but if I were right, what fun it would be to challenge the right of states to collect sales tax on software because of the EULA! I bet courts would start ruling EULAs invalid right and left...

Re:Are "licenses" subject to sales tax?

[gfineman]

In most states a Sales (and corresponding Use) Tax is applied only to goods that are in tangible form. Thus software that comes on a CD is taxable and software that is downloaded is not. That being said, several states have passed laws making downloaded software subject to the Sales (Use) Tax anyway. More are considering it. Although individuals rarely volunteer to pay the Use Tax, businesses are usually required to do so by their auditors.

Re:Are "licenses" subject to sales tax?

[Anonymous Coward]

In the state of Illinois, there are certain criteria that have to be met in order for a software lincese to not be taxable. To wit:

A) It is evidenced by a written agreement signed by the licensor and the customer;
B) It restricts the customer's duplication and use of the software;
C) It prohibits the customer from licensing, sublicensing or transferring the software to a
third party (except to a related party) without the permission and continued control of the
licensor;
D) The licensor has a policy of providing another copy at minimal or no charge if the
customer loses or damages the software, or permitting the licensee to make and keep
an archival copy, and such policy is either stated in the license agreement, supported by
the licensor's books and records, or supported by a notarized statement made under
penalties of perjury by the licensor; and
E) The customer must destroy or return all copies of the software to the licensor at the end of
the license period. This provision is deemed to be met, in the case of a perpetual license,
without being set forth in the license agreement.

Charges for updates of canned software are fully taxable pursuant to Section 130.1935. If the
updates qualify as custom software under subsection (c) of Section 130.1935, they may not be
taxable. But, if maintenance agreements provide for updates of canned software, and the charges for
those updates are not separately stated and taxed, then the whole agreement would be taxable as
sales of canned software.

There was a specific request by a Illinois based business to not collect sales tax on software, the end result was :

The Agreement, entitled "Master Software License and Services Agreement," enclosed with
your letter does appear to meet the criteria as a license of computer software under subsection (a)(1)
of Section 130.1935. However, please note that the additional agreement, entitled "End User
License and Services Agreement," that is printed on the back of the large envelope does not appear
to meet the criteria as a license of computer software under subsection (a)(1)(A) of Section 130.1935
because it does not require the signature of the licensor and the customer.

Re:Are "licenses" subject to sales tax?

[Skuld-Chan]

Some states (like Washington) you pay taxes on licenses though.

Re:Are "licenses" subject to sales tax?

[DrVomact]

Interesting. If I understand what you said correctly, Illinois has criteria that--if met--make a software license non-taxable. It also sounds like the case you cited says that EULAs do not meet the criteria (at the very least because they are not signed). Could it be reasonably argued on this basis that EULAs do not constitute a grant of license, and that they are therefore not a contract because nothing of value has changed hands?

What I want is to question the nature of the transaction itself: if the purchase of a software package is held by a court to not imply a grant of license, though the EULA says it grants a license--as opposed to a transfer of ownership of some item--then what exactly is transferred? It seems to me that the answer would be nothing--the EULA says you don't own the software, but it also doesn't effectively grant a license. If you have gained nothing of value in return for your money, then can there be any question of a contract between you and the software publisher? If there's neither license nor contract, then there are no limits that can be imposed by the EULA on what you do with whatever it is that you didn't buy. Of course, the software company could argue that you did buy one copy of their software...but they've resisted that.

I guess I was thinking that maybe tax law would be a good wedge to expose the self contradictory nature of package software "purchases". Would EULAs still hold up if the state stood to lose tax revenue? Now if we could only find someone with sufficient resources and interest to argue a case like this...

EULAs are useless other then to get sued by them..

[camgangrel]

As far as I can see and as long as I have used computers be it M$ Windows or the Macintosh. I have read about 2 of the EULAs that have came with the software. I mean what is the point when you read them if they make any kind cents to the every day joe out there. Not the blood suckers. I mean when you set donw and read one of this things. Alot of what you are going to do with program one way or ther other is not even 1 take in to a count for. or 2 It's brakeing the EULA in the first place. I mean look at DVD ripers be it on the Mac or windows side of things. the EULAs in them make it so that by clicking on the buton that you have just broke the law as long as you are in the US. I mean all this EULAs are good for to is be able to sue someone or for the person(s) that made the software be able to run away and not get there ass in the fire for makeing a pice of software that openly make there paying joes. Into outlaws with out so much as the person(s) being held resable for make the every day joe think it's ok for them to do this as long as they buy the software. I say it's time that the EULAs be reworked so that they not only cover the person(s) that made the software but the end user as will.

Mandatory bash.org quote

[Anonymous Coward]

http://bash.org/?577451

Cannot copy it in here, doesn't conform to /. formatting (style, not content)

Try 70476

[weierstrass]

> Get back to me when there's more, many more, data points.

There you go

Re:Try 70476

[Decker-Mage]

Bzzzt! Wrong answer, minus five. A Slashdot poll does not a cross-section of the statistical universe make. No participatory poll of self-selected individuals, especially from such a limited segment of the overall population does. Sorry.

OTOH (I'm also an economist, we always say that ;-), I have a feeling, and that's all it is, that it is representative if not over represented for those that actually read the damned things (as I do).

Just To Confuse the consumer

[u16084]

Reading past the first 10 lines of the agreement, the avg consumer just clicks Agree... You waive your right to everything...

May cause death

[jtownatpunk.net]

First day on the job, I was getting settled into my new office and checking out my computers. The Mac needed updates so I started the process. The EULAs came up and I was skimming the first few lines while I talked to my boss. The word "death" caught my eye so I started reading that one aloud. It said something like "use of this software may cause death". He didn't believe me until he saw it for himself.

What could I do? I need to keep my systems up to date. So now Apple's in the clear if I die as a result of using their software.

A new hobby for the bored

[Antony T Curtis]

If you have the time and the money, here is a new hobby for you....

1. Buy lots of software at your local big-name retail outlet.
2. In your excitement, rip open the boxes and get access to the EULA.
3. If the EULA is on the CD, open the CD case, load the CD and get to the EULA.
4. Disagree with it.
5. Return the software in opened packaging, for a full refund.
6. If your big-name retail outlet refuses then the software vendor *must* refund it,
7. No you will not pay for shipping. You will happily throw it all in the trash can if they refund the money.
8. If they don't want to refund, take them to small claims court.
9. Argue that the full EULA should have been visible on the outside of the packaging in reasonable size type.
10. If you are vision impaired, argue that the Braile EULA should be on the packaging too or that typeface should be large print.

Remeber to keep copies of your receipts and correspondences!

Re:A new hobby for the bored

[suv4x4]

"If you have the time and the money, here is a new hobby for you...."

Here's a better one: start tracking the victim software developers 24/7 and when they spot you, shout out loud: "You're a phony!"

Disclaimer: You should seriously consider against this or the other hobby duggested by parent if you have traces of a life happening (or a possibility for such to happen in the nearby future).

Re:A new hobby for the bored

[Pofy]

>4. Disagree with it.
>5. Return the software in opened packaging, for a full refund.
>6. If your big-name retail outlet refuses then the software vendor *must* refund it,

Why would anyone have to refund you? Remember your step 4, you did not agree to it and hence there is no contract and thus what is stated in it is of zero validity and not binding to anyone.

any EULA longer than about 2 sentences means...

[maillemaker]

Any EULA longer than about 2 sentences means, "Please bend over now."

I never read them.

I'm going to use the software when I want, however I want, and your EULA is just an annoyance that I have to see how fast I can click through.

Steve

OMG, this thread is making me so HOTT!!!

[Anonymous Coward]

I ANAL, too!

a/s/l ?!!!

Phone call to Tech Support

[gsmalleus]

I once called a computer manufacturer on an issue regarding an EULA, they claimed it didn't apply to me because the EULA for Windows was between Microsoft and them.

Question about EULAs

[Anonymous Coward]

Can't you just claim that you didn't hit the agree button. Like maybe your dog bumped the space bar with his nose, or someone under the age of 18 who isn't legally permitted to enter into contracts installed the software? Or what if you are under 18? Are you not legally permitted to install the software without getting your parent or gardian to hit the "accept" button?

No, no, no!

[Anonymous Coward]

EULA's are a big scam. There is no reason to think that they have any legal force. Clicking a button called 'Accept' does not constitute entering into a contract. I reject all EULA's (regardless of whether I press a button while installing the software) and thus my rights vis a vis the software are whatever copyright law says they are.

We need far more high profile skepticism of EULA's. Why do so many people accept the premise that they are binding and worry about the details?

STOP LETTING THEM SET THE TERMS - REJECT EULAS!!

Let Me Explain "Consumer Friendly"

[ewhac]

This simplifies EULA terms in a consumer friendly way similar to care labels on clothing, nutrition facts on food and warnings on hazardous materials.

The only consumer-friendly shrinkwrap "license" is the one that isn't there at all. Anyone who would regard such a monsterously unethical instrument as valid deserves everything they get.

After 30 years of propoganda and misinformation, when only 1/3rd of consumers even bother to read your so-called "license", that should serve as a fairly strong indicator that your ruse isn't working.

Schwab

Any real gotchas?

[jaypaulw]

The times I've read EULAs have been related to finding out if I am allowed to install a second copy on a laptop (which sometimes you can) or sell my copy of the software (which sometimes you can)

I've never come across any *real* gotchas, obviously they can do whatever they want to the software or really anything at all - everything works fine so no complaints from "userland"

What makes you think vendors want them understood?

[Anonymous Coward]

They don't. They want to be able to enforce their desires against you if you do something that makes them unhappy for any reason, and to be totally protected from anything you can do if you are unhappy. They also want to be able to stick it to you in a wide variety of ways and to leave you totally unprotected if they choose to do so.

Remember UCITA, the thoroughly tilted law drafted by large software vendors? Virginia has it in its purest form. Maryland enacted it but one of their (very few) amendments states that once you've agreed to a EULA, you actually have to be able to retain a copy to see what you agreed to. (Vendors would prefer to point you to their latest version, regardless of whether or not that was the one you accepted.) The American Bar Association refused to endorse UCITA partly because they set up a committee of lawyers and the members of the committee couldn't even agree on what the provisions of UCITA meant.

Bottom line: they don't want EULAs understood, just accepted.

EULA's

[Tantor12]

I have to comment on this because I went to the site and looked at one of his sample 'deeds' that is supposed to summarize the World of Warcraft EULA.. and he totally got it wrong in a few areas. I do agree that EULA's need to be clearer.. but the entire "Deed" mentality he has on his site is misleading in the worst way.. it implies ownership, and most software is purchased under a license agreement and there is no ownership involved. It's also interesting to see all the arm chair lawyers here spout nonsense.. there have been real court cases about EULA's and some very significant items in them have been upheld and deemed enforcable.

Re:EULA's

[Pofy]

>it implies ownership, and most software is purchased under a license
>agreement and there is no ownership involved.

Purchase means ownership, a transfer of it to the purchaser. hence if you purchase something (which you do in the shop for example), you have ownership. Don't be fooled into thinking something else. I am sure there are cases that does NOT involve purchase, there might be places were you rent software instead, in such a case, there is no ownership transfer. An alternative that is perhaps not used much comercially is that someone lend you the software, in such a case there is no owenrship transfer of course either.

Good idea, small improvement

[Bill, Shooter of Bul]

Why waste your time for a little benifit, and minimul damage to the offending companies? Go for the gusto! Go for the Class Action Lawsuit! IANAL, so I cannot actually say if this is a potentil case for class action. However, no class action lawsuits make sense to me. So this might be a good cannadite. I guess you'd have to decide which was more evil, class action suits or software licencing.

Re:Good idea, small improvement

[sconeu]

Because $BIG_SOFTWARE_COMPANY will settle the class-action by giving away vouchers for more sneakwrap-ridden software.

Individual Small Claims cases are an annoyance to $BIG_SOFTWARE_COMPANY, and if they don't show, you get an automatic judgement. Imagine a million people doing this... it adds up.

Re:Good idea, small improvement

[Antony T Curtis]

I never see the point of the class action suits... Big wow, each member gets a $10 voucher.

Better to attack the company with millions of small cuts.
They would bleed more.

Re:Good idea, small improvement

[Antony T Curtis]

IANAL, Class action suits can only be done once.

But you can keep going back to the small claims court.

Imagine, you can keep buying the same software and keep going around the merry go around again and again.
If the judge asks, the only reason you need give is that "I thought it was a new version,"

You do not lose your rights to sue again for another occurance of injustice in the small claims court. In a class action suit, usually one of the settlement terms is that you can never file a claim against that company ever again.

IMO, class action suits was an invention of the lawyers and big corporations for their mutual benefit.

Re:Good idea, small improvement

[Bill, Shooter of Bul]

It was my impression that the setelment was usuall acompanied with a promise from the company to stop doing whatever it was that got them in trouble in the first place. But I could be wrong.

Re:Good idea, small improvement

[sconeu]

No, it's usually with no admission of fault/guilt.

Re:Good idea, small improvement

[mpe]

Why waste your time for a little benifit, and minimul damage to the offending companies? Go for the gusto! Go for the Class Action Lawsuit! IANAL, so I cannot actually say if this is a potentil case for class action.

That might be exactly what $BIG_COMPANY wants you to do. Since in the former case they have to fight many lawsuits (in many jurisdictions) as opposed to only one.

Re:It's about the other stuff though, root kits, e

[stinerman]

The original reason why laws were written down is so that the citizens can know what is legal and illegal. That way they would presumably know the penalties for illegal activity which would serve as a deterrent to crime.

If the laws or contracts are written in anything other than common English that any random person could reasonably understand, then there is no benefit at all to having written them at all. Lawyers exist almost solely because laws are not written in common English, but in Lawyerspeak. Some of the stuff they come up with is harder than reading Perl! They perpetuate their existance by writing laws in Lawyerspeak, which means you likely will need a lawyer for very mundane issues such as taxes (which, they're in with the accountants on increasing the size of the tax codes), landlord issues, etc.

Perhaps if more EULAs were written in common English, more people would read them and refuse to install software that asked for the equivalent of a first-born child.

EULAlyzer

[antdude]

There is a program called EULAlyzer that could help to understand the EULAs clearly and better.

Re:EULAlyzer

[Kjella]

There is a program called EULAlyzer that could help to understand the EULAs clearly and better.

Let me guess - it replaces every EULA with a picture of the goatse.cx guy and a big neon sign saying "<-- YOU".

Re:EULAlyzer

[antdude]

Nope, it just looks for keywords and shows the user them.

obfuscation is the goal

[karlandtanya]

EULAs are genarally abusive to the customer.
They can usually be summed up in 3 statements:
1. It's not our fault if something goes wrong. Don't bother suing us.
2. If you do something we don't like we may choose, to sue you. We get to pick the jurisdiction. You'd do better to settle. Trust us on this.
3. We get to change the rules whenever we want.

The publisher does NOT want the customer to read or understand the EULA.

It doesn't matter....

[zogger]

...until software comes with some sort of normal consumer warranty "suitable for purpose" "works as advertised" and etc.

Until then, most EULAs are just variations on claiming it won't work as advertised most likely and really isn't suited for the purpose at hand, but you can try it anyway.. They should just cut to the chase and do a one liner - "you are a sucker and retard if you accept this magic beans accumulation and expect it to work, now, gimme my candy!"

Re:It doesn't matter....

[Pofy]

>...until software comes with some sort of normal consumer
>warranty "suitable for purpose" "works as advertised" and etc.

Check your local consumer sales law, most likely there is no exception for software, hence there allready is such a thing.

Decided not to agree with my EULA. Now what?

[dinther]

Just torn open the packaging from the CD/DVD. The sticker say's this software can not be returned to the retailer after opening the package. During install I am presented with an EULA and I do not agree with it.

Now what! say goodby to my $100 and toss out the software? because I can not return it. So I agree. All EULA's are agreed to under pressure because you have no other option since software returns are almost never possible.

In my opinion all software should be returnable to the retailer provided the CD packaging has been unopened. Packaging should contain a EULA in a printed form so it can be read wintout opening the CD/DVD packaging.

And all this still doesn't warrant the stupid content of these EULA's. I never ever read a EULA and treat a software product purchased in a store just like anything else I buy it a store.

"It's mine!"

Re:Decided not to agree with my EULA. Now what?

[Buran]

Yes, you can get your money back.

You paid with a credit card, didn't you?

If the store refuses to take the goods back, in violation of most EULAs, your credit card company will yank the money out of their merchant account and hit them with a punitive chargeback fee on top of that. Sure, you have to attempt to return the goods first, but once you have, the bank will take an attitude toward the store of too-bad-so-sad.

Credit cards are very useful for protecting yourself against dishonest merchants. And I consider this sort of thing to be very dishonest.

I just let my cat handle the EULA

[ribuck]

I let the cat click the "OK" button for me.

I don't care whether or not the cat reads the whole EULA before clicking.

I NEVER read them

[stewwy]

Whats the point? I might if I was acting for a company. but I'm going to do exactly what I want anyway and no EULA is going to stop me. I always assume they are heavily biased towards the company anyway, and fortunatly I live in a country (UK) where you cannot have your consumer rights taken away from you by a 'whatever happens its not our fault' EULA.

Actually they don't.

[Opportunist]

At least here, they have (translated): By agreeing to this license, you agree to..."

For the simple reason that conditions you could not know at the moment when you had to agree are void.

As a "voluntary" feature, it's doomed to fail

[Opportunist]

As it has been stated here before, it's not in a company's interest that you can actually understand the EULA. It's in their interest to keep you as confused as possible, with the only exception being the things that you MUST NOT do. The things that they're allowed to do to your computer (e.g. load you with spyware or transmit information about you to them) is hidden in lines of legalese, and your rights are simply not mentioned at all.

So unless they are forced to use "labels" akin to the ones you have in clothing or use easily understandable terms that don't require you to have a degree in CS and law to actually know what's going on, this simply will not happen.

What I COULD see, though, as a good marketing idea is to create a page where you "translate" the EULA from legalese to readable English. You'll probably have more hits than google in a while.

How to make a statutory right unalienable

[tepples]

Just become something is explicitly legal in a jurisdiction doesn't mean a party can't contract out of that right.

"(2) Any provision of any contract or agreement that waives the right specified in subsection (1) is null, void, and deemed contrary to public policy." So once the legislature enacts a statute containing the above language, now how does the multinational corporation force the individual to contract away that right?

it is very hard for a court to find a "take it or leave it" type of disparity in bargaining position when the purchaser has a separate, bona fide option for what they are attempting to contract for.

The finding of fact in United States v. Microsoft Corporation was precisely that the purchaser does not have "a separate, bona fide option for what they are attempting to contract for." What is the alternative to Microsoft Windows? And what is the alternative to proprietary video games?

Hey!

[Indiana Joe]

No talking about the EULA!

Demon customers

[tepples]

So once you have made a EULA-related chargeback at each major chain and have been banned from each store as a demon customer, where are you going to buy copies of proprietary software? Or where are you going to find Free software that does the same thing on the same hardware?

Re:Demon customers

[Buran]

Oh come on. It's not as if I can't get the same thing in a million other places. And if a store bans someone for actually getting their money back by force for a store's wrongly refusing a return (there have been lawsuits over this), they're just asking for a horrid reputation and very bad press in newspapers and on television. That will lose them sales and send customers to competitors who don't treat the customer like dirt just for exercising their right to override staff stupidity. Companies know that further cheating someone who has been cheated once already is one of the worst things they can do for their reputation. (You gave Best Buy as an example; I already refuse to shop there due to their bad practices and I tell others not to shop there too).

I've had places I've never even heard of help themselves to my credit card before (and yes, I changed the account number) and not only did I do a chargeback but I also gave out their names very blatantly and multiple people I know will never shop there. And my bank took the money back. If they want to whine at me, they shouldn't have cheated me, huh? And I feel no remorse for grinding them even farther into the ground if they don't learn their lesson from having been punished once.

DMCA gives EULAs teeth

[tepples]

once the purchase is made the user needs nothing more to use the software.

Other than that the software is encrypted on the disc, and decrypting it without accepting the contract is a violation of the anti-circumvention provisions of the Digital Millennium Copyright Act and foreign counterparts?*

* Not applicable in Canada.

Re:DMCA gives EULAs teeth

[geminidomino]

Other than that the software is encrypted on the disc,

Err, that assumes you're either using a DVD or a game with some kind of stupid protection on it.

Re:DMCA gives EULAs teeth

[RenatoRam]

Err... like most of the recent top-hits, for example?
(just reporting heard impressions: I do not buy games nowadays... I have free adventures in ScummVM and no time to play them either)

Re:DMCA gives EULAs teeth

[tepples]

Err, that assumes you're either using a DVD or a game with some kind of stupid protection on it.

Not necessarily. Any publisher of proprietary software can choose to store the install data in an encrypted file.

Re:DMCA gives EULAs teeth

[geminidomino]

Hit Games, maybe.

Real software, they generally don't bother.

Re:Open Letter to Zonk

[Whiney Mac Fanboy]

Gee...mabye it is hard to be so insightful and informative...but actually, it's back up to +1 now, pretty much invalidating your argument.

Well, its -1 now, pretty much invalidating your argument.

You know - you'd think someone using the handle "trip master monkey" wouldn't take themselves so seriously :-)

Very open to abuse, still

[bugnuts]

It's nice to have a laundry tag, however these can have the biases desired by a software house. They can claim it doesn't collect personal information while requiring a website login that collects personal information, for instance.

This system would only work well if an independent agency made the tag, and did it in such a way that the tag itself wasn't binding, and couldn't be used against the company (or the agency making the tag). In other words, I believe this is either highly-biased, or a legal land mine to step around.

Rentals are subject to sales tax in Indiana

[tepples]

A lot of EULAs seem to say (as far as I can understand them) that I don't really own a copy of the software--I just have a license to use it under the terms of said license. Now, if I'm obtaining a license and not really buying anything, can such a transaction be subject to sales tax?

Blockbuster is a chain of DVD and VHS video rental stores. It charges sales tax in at least the State of Indiana.

Are we not missing a point here?

[Ceribia]

Has everyone forgotten that we have the choice to just not buy the software? Its not food, nor is it water, we can live with out it. If you don't like what a company is doing, don't buy from them! If you don't like a company's EULA, don't buy from them! It's the same with piracy, if you don't like how much the company is charging don't get the product! It really is that simple.

Re:Are we not missing a point here?

[Antony T Curtis]

If you don't like a company's EULA, don't buy from them!

And just how do we get to read the EULA for a paticular company's product without purchasing it?
I, for one, am not blessed with ability to read the EULA from the CD enclosed within a shrinkwrapped cardboard box... No matter how long I press the box against my forehead.

Re:Are we not missing a point here?

[Ceribia]

They're available online often, though I can understand not wanting to take the extra step. Ounce you have bought the software and read the EULA ((It being too long is not an excuse for not reading it)) you can still say no, and you can return it for the most part.

Re:Are we not missing a point here?

[Jorgensen]

EULAs may well be available online. But legally, they bear no relation to the contents of the box on the shelf...

So... if I was considering buying Microsoft Windows, should I have to hunt for the EULA on the microsoft web site? or perhaps on the PC World web site?

The basic principle still holds: If you're only *told* about the full terms and conditions AFTER you've bought the goods, a refund is in order. If this is not the case, then I'm moving into the sales business - looks like I can make a lot of money there!

Re:Are we not missing a point here?

[anthony_dipierro]

And just how do we get to read the EULA for a paticular company's product without purchasing it?

You could try asking the sales associate. Maybe she'll even let you open up the box right there in the store and read the EULA. Or maybe she'll tell you that you can't read the EULA unless you buy the software and open the package, and you can't return the software after you open the package - in which case you have two reasonable choices. 1) Ignore the EULA. 2) Don't buy that software from that store.

Then again, what do I know? I don't buy proprietary software.

Re:Are we not missing a point here?

[zCyl]

Ounce you have bought the software and read the EULA ((It being too long is not an excuse for not reading it)) you can still say no, and you can return it for the most part.

Where do you shop that software is returnable?

Tell me

[Erik Hensema]

What's the difference between an EULA and the GPL, besides an EULA being 'evil' and the GPL being 'good'?

What makes the GPL legally binding while most commenters here seem to agree an EULA is not enforcable?

Re:Tell me

[daverabbitz]

The EULA attempts to be a contract and sets terms as to how you may use the software, but many believe it is not binding as you are supposed to sign a contract. The GPL only grants permissions to distribute the software, but has terms to nullify the license if you do not follow the terms.

In short IANAL, and the GPL doesn't attempt to tell you how you can use the software only how you can distribute it. And AFAIK, at least where I live (NZ), copyright law reproducing copyrighted works, but not how you may use a work.

I think...
Definitely talk to a lawyer before basing a business off of breaking the EULA.

Who Cares?

[Anonymous Coward]

EULA's have little to no validity. And it's already been shown that they ARE NOT legally enforceable.

I can simplify all of them:

[It's a thing]

You are a slave. We are your masters. Give us your money. It is illegal and therefore immoral to disobey us. Bow down.

EULA's are a joke

[BCW2]

Most EULA's are unenforceable for two reasons:

1. They are written in legaleze, not a spoken language. Since no one has a lawyer standing next to them to translate that crap when they install software, if it can't be understood, it's garbage. M$ was challenged on this issue recently and I haven't heard the outcome yet.

2. They are written as glorified liability wavers. No liability waver has EVER stood up in a U. S. court. Every lawyer says to have one but they know it's only value is to intimidate 90%+ of the consumers into not filing a suite.

Making Sense of Software EULAs

[WeeBit]

The idea of breaking down a EULA and simplifying it is nothing new to the online community. Several articles in the past have links to websites that offer insight on what to look for, and points to the worst offenders. There is even a tool out there that points out the bad parts, and even the good parts of a EULA. (...If there is such a thing as a good EULA). Two blogs below point to the best I have found on this subject. I have done everything I can to point out to the public to read those EULA's. The public I have delt with all say the same thing. "EULA's read like a book, and they all read as though the user has a law degree." A EULA never has anything in it for the person wanting to use the software. It's all about the software vendor. One EULA even states that you can't post, email, or publish any part of their EULA online etc. If I can find that one I will let you know the software company that has that dandy piece of work in their EULA on the Internet. Unless someone here knows which software company has this EULA with their dandy piece of work in it? Sorry to say that right now the software vendors can pretty much put what they please into their EULAS and the public has to grit their teeth and bare the burden, or don't use the software. Most download it anyway, they have no choice but to use the software because it's in their price range, it runs better on their OS, or there is no better software on the market. The vendors are not stupid, they know what they are doing. No laws are in place except for the few scant spyware laws, that so far they have managed to bypass. So they can write the ELAS to suit themselves to a "T". Meanwhile the public are the ones that have to deal with it one way or another.

http://blogs.zdnet.com/Spyware/?p=710 Cool New Resource for EULAs November 28, 2005 Posted by Suzi Turner @ 9:27 pm

http://blogs.zdnet.com/Spyware/index.php?p=657 Demystifying EULAs September 15, 2005 Posted by Suzi Turner @ 11:23 pm

False Sense

[slummy]

To me this seems like a false sense of security for the end user. Sure, they're outlining the license in a dumbed down format -- but what about the crap that's in said EULA they choose to omit? Leverage shifting loopholes tend to hide very nicely in technical jargon.

Why I don't read EULAs

[Anonymous Coward]

At work: I don't read the EULA because it doesn't matter -- I was told to install the software by my boss.

At home: I don't read the EULA because I pirate everything. If I'm rebellious enough to use software without paying for it, then I'm certainly rebellious enough to disregard the EULA.

EULAs

[JerryLs]

A EULA is a long, legal document explaining why you, the user, who just shelled out $300, is being allowed to "use" their product. How nice of them. It (the EULA,) exists to insure that the company is covered. It should be evident that persons who abide by the EULA are honest to begin with. Companies losing millions to piracy are mostly being hit by criminal elements, not honest folk. To that end, the only proof needed for use of software should be some proof of actual purchase. As well, the big software companies could let up on the honest with a short paragraph saying the purchaser should not give copies to friends and/or relatives. No big copy protection needed, just some trust.

Those are not EULAs in the sense under discussion.

[Anonymous Coward]

Blizzard's so-called EULA was a binding contract because it was presented before the purchase and agreed to before money changed hands (the monthly service fee to connect to their service). Of course these "EULA" have been tested and accepted by courts -- they are traditional contracts. However, standard EULA's, the ones presented by a piece of software after that software has already been purchased, have by no means been "tested" in the way you would have us believe.

Trust me, centuries of common law contract law prevent the abomination known as EULA's (those things you click on after a sale has taken place) from having any binding effect on the new owner of a piece of software.

Because it doesn't matter.

[anthony_dipierro]

Unless you plan on selling the software, the EULA just doesn't matter. 1) It's probably not legally enforcible anyway, and 2) Even if it is, you're not going to get caught if you break it.

Sure, this sounds great ...

[ScrewMaster]

This simplifies EULA terms in a consumer friendly way similar to care labels on clothing, nutrition facts on food and warnings on hazardous materials.

And nobody will bother to implement any of those things because it isn't in their perceived benefit to do so. I mean, food products have been labelled in a consistent, informative manner for over a century, right? Oh, I forgot ... it wasn't until they were forced to by Federal regulation. I see the same thing being necessary here, but I'm not holding my breath.

You don't need a license under copyright law

[Anonymous Coward]

Your "A" that class notwithstanding, what you're saying isn't true.

You don't need a license under copyright law to install and use software on your computer. Read section 17 USC 117, which specifically exempts as infringing any activity you would normally engage in when installing and using shrinkwrapped software.

Just because a software vendor asserts you need a license doesn't mean he's right. And that's not the basis on which EULAs have been upheld, when they have.

The EULA on all my programs is simple.

[mw13068]

The EULA on all of the programs that I use is very simple.

Here's a summary:

• Freedom 0 The freedom to run the program, for any purpose.
• Freedom 1 The freedom to study how the program works, and adapt it to your needs.
• Freedom 2 The freedom to redistribute copies.
• Freedom 3 The freedom to improve the program, and release your improvements to the public.

• Restriction 0: I may not distribute software covered under this EULA to others without giving them all the freedoms that I have.

Welcome to the beauty of the GNU GPL.

how to null the ELUA

[Anonymous Coward]

get someone to install the software for you
then you never have to agree to the ELUA
and as they never asked you if you agree to it
then you are not bound by it
and as the software dose not tell you when you are violating the ELUA while using it how do you know

so if you buy a pc with software pre installed
and it gets set it up on your desk by a 3rd party instalation company
and no one in your company has to agree to the ELUA anyware in the process

does that make the ELUA legaly binding then, and for it to be inforced when no one in your company
has had to accept or read the ELUA in the whole proccess

the software was provided and there was no reqiurement on our company to comply with your ELUA what ever it says

lawyers ARE the problem!

[SonicSpike]

Ever wonder why it takes an attorney these days to do anything besides paintyour house?

Here is the problem: attorneys DO NOT BELONG IN LEGISLATURERS!!!!

People that make a living off the law, should not be the ones WRITING the law.

I think the bar associations of this country are the white collar mafia.