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Cory Doctorow on Shrinkwrap Licenses
An anonymous reader writes "Web privacy advocate Cory Doctorow is on about shrinkwrap licenses, in his latest essay. They've always been onerous. Now, Doctorow says the new EULA in Vista and even the MySpace user agreement could put users at risk of being sued. He closes with: 'By reading this article, you agree, to release me from all obligations and waivers arising from any and all [everything].'"
By reading this article, you agree, to release me from all obligations and waivers arising from any and all [everything].'
This shouldn't be an issue here.
I suspect a court wouldn't find most such licenses binding.
The government can't save you.
In many countries shrinkwrap licenses or license agreements that you can only agree to after actually buying the product, or that are "implicitly agreed upon" are not legally binding and are contrary to public policy. None of the things included in those "contracts" are legally binding and that includes the exclusion of warranties etc., even if written in all upper case.
OMG companies really care more about themselves than they do about us? They want their rights to surpass ours? Surely it's because fundamentally we are all pirates, hackers and thieves just waiting for a chance to steal, defraud and otherwise screw them over. This should come as a surprise to NO ONE. They behave as though it's us versus them, thereby making it us versus them.
I know, I know, RTFA is so passe... but the point the guy was making was not that Microsoft was going to do this. The point was that some company is going to go bankrupt, and their obligations & contracts will get bought by somebody with the mentality of a patent troll. And that's when people will start getting sued. And if he/she/it's successful, it will encourage others to do the same.
Have you been touched by his noodly appendage?
And if he/she/it's successful,
I'd say it's more likely that we'll all simultaneously win the lottery at the same time. I'm not too worried about it.
I don't respond to AC's.
You haven't read the article, have you? (I know, I know, this is Slashdot)
He wasn't talking about Microsoft, he was talking about the equivalent of patent trolls. He was talking about being sued by someone who buys a failed company with whom you have such an agreement.
I can't imagine Microsoft suing a customer over some small print in the EULA. That's just dumb.
Then why is it there?
I hope you don't agree to a lot of contracts relying on a belief that they won't be enforced because "it's just dumb".
This latest corporate fad for retaining a claim to sue while offering a soothing "pledge" not to under vague, unenforceable conditions is lame in the extreme.
-=Maggie Leber=-
If your average user could get to that point in a legal proceeding more than, say, 0% of the time, it'd be important that heshe wins.
But they basically can't. So bend over and click "Accept".
My turnips listen for the soft cry of your love
Do not try to read the dupe, thats impossible. Instead, only try to realize the truth
What truth?
There is no dupe
Kinda off-topic, but I was wondering. Given that a EULA contains a huge amount of intellectual property, and that the lawyers who drafted it thus have the right to permt/allow/deny every instance of its use, is it legal to quote from EULAs?
Shouldn't there be something you have to click through before reading a EULSA.. something that says basically "you cannot view/use/think about this EULA except under the terms define below... "
My turnips listen for the soft cry of your love
Then why is it there?
You haven't spent much time working with lawyers, have you? It's just a CYA.
I don't respond to AC's.
n/t
My turnips listen for the soft cry of your love
Microsoft is mentioned in one paragraph, in page one, and the point about people getting sued is on page two, and refers to a company going bankrupt, being bought out by a company that doesn't sell anything (the troll), and the troll suing. Last time I checked, Microsoft sold actual products and was in no danger of going bust. Several other examples of questionable EULAs are given.
How you turned this into the whole article being about Microsoft suing people, I can only imagine.
I'm scared of numbers that can't be written as a fraction. It's an irrational fear.
...for stealing his book title:
http://craphound.com/?p=189
Good job there's no shrinkwrap on books eh?
If you find this post offensive, don't read it!
It's kinda of the reverse of the old line about STDs.
"remember you are having sex with everyone they have ever been with"
In this case its
"remember you are trusting every future owner of the ip"
Repeal the 17th Amendment TODAY! Also Please Read http://www.gnu.org/philosophy/right-to-read.html
That would never happen ... (SCO + Caldera anyone?)
- Michael T. Babcock (Yes, I blog)
Cory has written stories that I enjoy. You haven't. I have a suggestion as to where you can stick your "SuperBanana".
What was once true, is no longer so
Then why is it there?
The general motivation is to protect the company from lawsuits. There is the idea that the company has a lot of money and the user doesn't, and so this makes it possible for users to sue the company for mistakes without the company having any recourse. So by having these EULAs they can prevent frivolous lawsuits. Fair or not, that's the motivation.
But the article makes another point, which is that like patents, a troll could buy the remains of a company who has tons of users who agreed to some type of EULA and then sue them. Not that the original company would do this, but that a troll would.
Cheers.
But still softwar installations have become very painful for many reasons. Everyone installs a link in the every user's menu, in the system tray in the desktop, install programs that run all the time when the computer boots, keep looking for updates bug your for upgrades etc etc.
sed -e 's/Chuck Norris/Rajnikant/g' joke > fact
It isn't a new problem. Consumer credit contracts and insurance policies used to be terrible for the amount of impenetrable language and user-hostile terms. Don't fool yourself, most courts enforced those contracts, even if they were very one-sided. Legislation and regulatory action were required to eliminate the worst abuses.
Mea navis aericumbens anguillis abundat
When's he going to get a new haircut? Nice flattop jackass. Is is true that you refer to your hairstyle as "The Magic Kingdom"?
Bullshit - Microsoft is one of the biggest funders of the BSA - and I don't mean the "Boy Scouts of America". They threaten their customers with audits all the time.
I'd say it's more likely that we'll all simultaneously win the lottery at the same time.
This message has been brought to you by the Department of Redundancy Department.
I put the 't' in electrical engineering.
1) I am your master
2) You are my slave, you shall obey my every command directed to you.
3) You will on every Dec 26th starting at noon stand on one foot in a shopping mall or other crowded public place and howl 3 times, each howl being at least 6 seconds long, with a pause of at least 3 seconds between howls, and the howl being loud enough to be heard by at least 5 strangers 5 metres away. And you will try to get your friends to do the same thing as well.
4) In event you are not capable of doing 3), you shall disregard all EULAs by other parties and not create any yourselves.
5) This being on Slashdot, any offers to sacrifice your first born will be laughed at and dismissed.
No two people have ever read the same article / book , etc.
... where, if part of the contrat is illegal, then the whole contract is made null. In other word for all those country, making statement for example to make user sign up their basic right, or even consumer-protection right, is illegal, would simply nullify the EULA. So... The left over won't do shit in such case.
C. Sagan : A demon haunted world:
http://www.amazon.com/gp/product/0345409469/
visit randi.org
The BSA is concerned with issues of copyright infringement, not EULA violations. Those are unenforceable except to the extent that they overlap copyright.
File under 'M' for 'Manic ranting'
Many of the posters in this topic seem to have adopted the "that'll never happen" mentality. After all, there's no real chance of a corporation *successfully* suing people over these outrageous EULAs, is there?
I would like to remind those posters of the methodology used by the RIAA - threaten, harass, sue, and in the unlikely case that the victim actually puts up a fight, drop the case and run away.
Consider how many people, in the face of a mere *threat* to sue from the RIAA, have rolled over and paid the amount that the RIAA was demanding? Perhaps these people are cowards. More likely, they simply calculated that paying up would be much cheaper than hiring an attorney and fighting it out.
A EULA troll could exploit the same methods.
And the only thing that could put a stop to it would be a firm ruling by the courts that EULAs are in fact non-enforceable. A ruling which the trolls would avoid like the plague by using the cut-and-run tactic whenever faced with somebody who appears inclined to fight.
After reading TFA, I sat back and attempting to count just how many of those EULAs I had clicked through without bothering to read (after all, everyone *knows* that they are non-enforceable, don't they?). I can't be sure, but the number is most certainly at least three digits.
I suspect that most *present* EULAs simply don't contain anything that could be used for this purpose. That doesn't mean that *future* EULAs won't include them *deliberately*.
How long before Wiki has an entry titled "EULA bomb"?
Don't tell me to get a life. I had one once. It sucked.
Given that a EULA contains a huge amount of intellectual property...
Actually most EULAs consist of the same language used in other EULAs. In that sense they are full of what in copyright is referred to as "scenes a faire," or components that are common to a particular type of work. For example, a movie about the Middle Ages might show some poor wretch gnawing on a piece of stale bread. This is so common that that particular scene in itself has no special creativity.
EULAs have at best a thin layer of creativity in the selection of certain stock phrases in order to compose a whole. In that sense they are probably akin to literary compilations, which have a very thin layer of copyright over the selection and presentation of the collected works. In the case of EULAs, I think it would be difficult to say that "You agree to indemnify and hold harmless..." and other stock phrases are anything more than scenes a faire.
I was talking with a rather high-powered copyright lawyer about this a few months ago, and he agreed with my assessment. There doesn't see to be any real pertient caselaw on this, so all opinions are equal until someone finds reason to bring suit for copying of EULA terms. I can't really see why any company would bother with it though. The language of a EULA is not something worth protecting, because in itself it does not produce revenue.
Read the EFF's Fair Use FAQ
How long before spyware and virus start using them to sue users, anit virus apps, anit spyware apps, and so on for removing them and how long before that start using DRM and the DMCA as well?
http://blawg.bsadefense.com/
Lost your license key, but still have your original CD and sales receipt? Not good enough for the BSA. Read all the gripes that businesses have about having to over-buy "just in case" the BSA "requests" an audit.
Dogdude says: You haven't spent much time working with lawyers, have you? It's just a CYA.
localman says:The general motivation is to protect the company from lawsuits...So by having these EULAs they can prevent frivolous lawsuits. Fair or not, that's the motivation.
The reason to have a clause in an EULA, or to have an EULA at all, is to intimidate the customer into abandioning rights they might otherwise exercise or otherwise cooerce their behavior. For example, the doctrine of first sale, or as localman points out, the right to sue for failure to perform on implied warranty of merchantibility (which I don't consider a "frivolous lawsuit" if a product has failed to reasonable perform, a judgement for a court to make, not a product support minion).
The only thing that makes such an "agreement" effective is the threat of enforcement...and the forum for that enforcement is the civil courts. "They'd never sue" to enforce a EULA clause is wishful thinking in the extreme; they'd sue the instant that they thought it would advantage them in acquiring maximum revenue.
-=Maggie Leber=-
In the United States, both forms of license agreement are binding. However, they must be presented in such a way that the mythical "reasonable person" would find them before using the product or service being licensed. For example, you can't place the shrinkwrap license on page 52 of the user manual for that new Dell. It has to be obvious, easily-spotted, and not buried in the box. With clickwraps, the Specht v. Netscape case established that they must be presented in a fashion such that it is clear and obvious that there is a license involved. You as the end user can elect not to read it, but you have been presented the opportunity to read it, so the law assumes that you have.
However, contract law in the United States still provides that bizarre terms in a licensing agreement will be held invalid. That does not mean that the entire contract is invalid, just that the offending sections would be. For example, if I buy a new iPod and the license agreement states that the first $10k I make next year will be sent to Apple in order to fund their 2007 New Years Eve party, such a term would be found by a court to be outside the boundaries of a license relating to an iPod purchase.
None of this means that EULAs aren't a pain in the ass. They are a pain to deal with, even for lawyers. I worked on one a while back, and I can see why they become so complicated. Corporate lawyers want to protect themselves from users who see juicy targets in successful companies. For example, EULAs relating to Internet services always have sections dealing with reliability of service. Companies have to expressly say that they are not guaranteeing 100% uptime, or someone will come out of the woodwork and sue them, saying they had a reasonable expectation of 100% uptime because the company marketed itself as a very reliable provider. Companies put in a lot of redundant language because they are trying to make it abundantly clear as to what they are not agreeing to and not guaranteeing. That way they they can defend themselves in court by saying that anyone who had even glanced over the EULA would understand that the company went out of its way to inform the user.
Unfortunately the effect is a complicated, hard to read document. Contract lawyers are slowly starting to change their approach. I've seen a few EULAs that use far less language, in an attempt to make the contract more intellible. Their argument in court would then be that although they didn't put in redundant language, their language was brief and clear enough that it was more likely to be read. I personally think this is a smarter, more common-sense way to go.
Read the EFF's Fair Use FAQ
Because the software "requires" you to? Not even remotely good enough. I've installed lots of software on my computer that "required" an EULA agreement that I wasn't interested in reading so I bypassed it and got the software installed anyways. There are dozens of ways that this is accomplishable, one of the most least technical ones involving one of my cats that likes to play with my computer keyboard if I leave it pulled out from my desk and I'm not sitting at my computer.
File under 'M' for 'Manic ranting'
I make them work to my advantage. If it's legal to bind a unilateral contract to another party, when I encounter a EULA "acceptance" screen on my PC, I simply use a post-it note to replace the language with my own. Something like "By installing the software after the user clicks "I accept," the copyright owner grants full and unconditional rights to the user. This includes, but is not limited to, the right to copy, distribute, modify and reverse engineer the software without limitation."
Fair is fair.
"National Security is the chief cause of national insecurity." - Celine's First Law
OTOH, the typical web click-wrap done before payment might well be valid. Ditto for free downloads.
1 - to indemnify MS against any harm caused by its software to your business. That frees them from the fear of being expected to come up with a few hundred thousand dollars every time an exchange server crashes and two hundred salesman lose importan e-mails that cost a company money.
2 - to stand in for "rigerous maintenance" of its copyrights and trademarks - so that they need not fear losing control of their trademark by dint of not demanding that anyone anywhere who uses the MS logo or Widows name will put put a color of doubt on their title to the trademarks.
Then the MS corporate legal team puts its wet dreams in writing and attaches that as well.
-GiH
The Slashdot blurb says, "the new EULA in Vista and even the MySpace user agreement could put users at risk of being sued." Which is just plain stupid. You're always at risk of being sued the text of a EULA doesn't change that. The question is could you be held liable (aka lose).
Imagine this hypothetical:
... what's the worse that will happen? You'll delete one file? I'm not condoning piracy. I'm just saying with virtulization, I can try your crappy software, and once I realize it's crappy, I can undo any "damage" or consequences you threaten me with (spyware, viruses) by either having 20 identical clones around or at least weekly snapshots.
I realize I had inadvertently agreed to an EULA after installing some software. But as you can see, I was prepared for this action. Because I was emulating a real (Windows) PC in a virtual environment, I was preparing myself for future situations. You see, my real host (primary) OS is a free, open source OS, and I use open source virtualization. This combined with proper snapshots, ensures my due diligence in making sure I can accurately restore said PC to such a state of where it was before I agreed to a n EULA I didn't agree with. (end of hypothetical)
Even if you've pirated the guest OS
In the meantime, I'll stick with software I can *prove* isn't crappy... you know the kind you can freely overlook the source and change it if you'd like.
If work wants to provide me with a MS OS-based laptop (along with plenty of licenses as they're a partner), all the better.
Otherwise, I'm more than happy to free the OS from the hardware.
FLR
There are people out there who license their shrinkwrap? That doesn't make any sense. I just buy mine in rolls from the office supply store. I can understand licensing something less tangible like software, but shrinkwrap?
... and then they built the supercollider.
I never thought I was alone in my wholesale rejection of such "contracts," but it's nice to see validation from industry luminaries from time to time.
Schwab
Editor, A1-AAA AmeriCaptions
Well, there are two conflicting schools of thought. One is the ProCD line of cases, where the EULA is part of the overall sales transaction that included going to the store and buying the box; so long as you can reject the terms and return the software, if you agree to the terms, they're valid, since they don't come after the sale, they're just a delayed part of it. The other is from Kloeck v. Gateway, IIRC, which says that the sales transaction doesn't include the EULA, and thus while they could arguably be agreed to, they aren't normally and thus aren't enforceable. Ultimately, IIRC, it all comes down to precisely how you interpret UCC 2-207. Personally, I think that Kloeck gets it right, apart from general dislike for EULAs. But ProCD has more supporters. And a legislative solution, restricting adhesive licensure somewhat, would be best.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
It's only that last 10% of software that I absolutely refuse to install. Usually there's only a passing mention of software from some different company, in one line, near the end, to indicate a dozen pieces of spyware bundled with your program. With that, I "opt out" and delete the program/installer, and look elsewhere. For software that more than a handful of people would ever want to use, there's always some other alternative, with a license that isn't so incredibly underhanded.
Certainly, Windows XP and Vista qualifies. So long as my copy of 2000 (or NT4, 98, 95, Win 3.11, Dos 6) works for the Windows-only software I only occasionally need to use, I'm not even going to CONSIDER upgrading. And no more machines pre-loaded, either. I can go to pricewatch find a fully customizable, no-OS system cheaper anyhow. Since I don't use credit cards... No. Nor do I care.
When returning products to Best Buy, however, I do stand at the front of the line, reading the paper they want me to sign... verbatim. They ALWAYS tell me it's just a standard form, and that they'll give me a copy to read later... AFTER I sign it. I'm more than happy to hold up their line, since they insist I agree to the legalese they've thrust upon me, for no good reason.
Slashdot gets worse every day... Pipedot: News for nerds, without the corporate slant
"In some places," maybe.
In the US, there's an exception spelled out at 17 USC 116 that allows you to make copies incidental to installing and running computer software. You don't need a copyright license you to do these things. The EULA, if it's enforceable, isn't a copyright license, it's a condition of sale.
But lawyers are advocates, and clients make opinions. At least publicly stated ones. The money against the BSA is very diffuse since big/medium.biz always signs full contracts. Only the little guy has to deal with EULAs.
In ProCD, who is the contract between, exactly? Do you have links to those two cases?
EULAs act as if they are permission from the publisher to run the software provided you abide by terms X, Y, and Z. Except that you don't need permission to run the software from the publisher, because 17 USC 116 says you can anyway. So as a contract, it seems like there's no consideration. Microsoft is offering you a permission you don't need in exchange for your compliance to the terms of the agreement.
EULAs as a condition of the sale on the other hand might make sense, except that EULAs talk about the publisher granting this and that right, while the receipt says you bought the product from Best Buy. If the EULA is a condition of sale from Best Buy, why does it say Microsoft requires X and Y in order to Z? After all, you have no relationship with Microsoft, only with Best Buy. Microsoft is a third party.
Reduce, reuse, cycle
After I closed my paypal account, I had some spam from a market research company about paypal. I did not do their research, but emailed back with a rant (if it keeps an employee busy for even a few minutes, then I've managed to successfully waste some company money). Of course, I formatted the email like a n00b (i.e. the reply above the quoted text), but I made up a disclaimer below the text (hoping they would miss it):
I never got any reply, but if I did I might have posted them some kind of invoice. It'd be a win/win situation - either I get a grand or a court rules that email disclaimers or EULAs aren't legally binding (OK, maybe I'm being a little optimistic).
Car analogies break down.
I read (or at least skim) any license attached to any software I run. It's usually the basic stuff, and while a little bit lawyerese (in other words, precise), it's usually not that hard to understand. It's also usually reasonable, given what the software can do.
For instance, Doctorow specifically notes that an MS EULA makes sure you grant permission for Defender to delete files on your PC. Guess what: that's the whole point of Defender: to delete malware, which could be in (gasp!) any file! Oh noes!
EULAs exist for basically two reasons:
1) To limit the legal exposure of the company providing the content (music/movies/software/whatever). And, err ... duh, that's a good thing, for both the company and you. If that company had no way to limit its legal exposure, it wouldn't be able to do business. The risk would be too large; it would only be a matter of time before some angry user had sued the business principals into the poorhouse for some perceived slight.
2) To explain the terms under which the content is sold/licensed/rented/whatever to you. You may not agree with those terms, but there they are, and you are given the choice. You may not bother to read the terms and excercise the choice, but you were at least given it.
Are Doctorow and the other EULA-haters in this thread suggesting they'd rather not know what their choices are? Or are they suggesting any entity that wants to release content for money or for free should have no rights or choices in the matter, just tossing their content over the wall and letting the rest of the world do whatever they want with it?
For instance, Doctorow specifically notes that an MS EULA makes sure you grant permission for Defender to delete files on your PC. Guess what: that's the whole point of Defender: to delete malware, which could be in (gasp!) any file! Oh noes!
guess what: "to delete malware" doesn't equal "to delete any file". nice try, though.
To bring it back on topic: Cory Doctorow might write amusing fiction. He has neither the education, training or background to be considered qualified to give anything resembling legal commentary.
If I can get the patent on that, I'd be rich!
Have you been touched by his noodly appendage?
What ProCD is saying re: returns is that the terms of sale of the software include the terms of the EULA. The EULA is presented after the buyer has taken the software home, but it's all one big transaction. If the buyer rejects the EULA, then he has rejected the entire sale. This isn't a breech, it is a rejection of the terms of the offer. That's why returns have to be possible. If the user can't return the software to someone for his money back, then he lacks a real opportunity at the time of EULA-reading to reject, which would tend to jeopardize the idea of EULAs being a part of the initial purchase from the store, which is where the ProCD court sees their legitimacy as coming from.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
In ProCD, who is the contract between, exactly? Do you have links to those two cases?
ProCD didn't really explore who the contract was between, but it was between the software publisher and the user. The precise nature of the retailer's involvement wasn't an issue in the case, so it wasn't looked into.
ProCD is here and Klocek is here.
Except that you don't need permission to run the software from the publisher, because 17 USC 116 says you can anyway.
You mean section 117.
ProCD was interesting anyway, because it actually dealt with public domain information -- telephone numbers -- rather than copyrightable software per se.
Your objection is interesting, but AFAIK no one's actually made it in court.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
This seems like sophistry since there are lots of fairly convenient mechanisms to get consent. Things like product activation or updates. Of course they have marketting negatives, but then so are the EULAs which ought not be hidden. From UCITA on, publishers have been trying to tilt the playing field so their onerous terms become irrefutable.
Oh, I see -- the cash payment is viewed as a deposit.
You could look at it like that, though I wouldn't necessarily use that precise wording.
This seems a violation of common-law sale
Who has that? The law of sales here is governed by the UCC.
particularly the doctrine of first sale
No, not really. First sale is only a limitation on how copyrights may be used. It doesn't have any impact -- at least, given the current precedents -- on how contracts and terms of sale may be used. Thus Alice cannot order Bob, using the power of her copyright, to not resell a book she sold to him. But Alice can condition her original sale of the book to Bob on his agreement to a contract that prohibits resale.
You could make a decent policy argument against this, but AFAIK no one has managed to yet.
What happens if the purchaser resells the software without installing it? How could a subsequent buyer get a refund?
Well, there was one precedent which supported the idea that a non-using purchaser is only an intermediary and isn't bound by the terms in the box so long as he doesn't open the box. This would tend to indicate that the later buyer can get a refund, but it's unclear as to from whom. But IIRC, there was another case to the opposite, and if you follow the ProCD logic then the latter is more likely correct.
From UCITA on
UCITA is pretty dead. Two states adopted it, several others have anti-UCITA laws to defeat it, and no one is looking at it any more.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.