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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].'"
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=-
Not to mention that with a click-through license, there is no way of knowing who agreed to the "contract". I could get my underage kid to agree to the licensing terms, and he will not be legally obligated to abide by them because he is not allowed to enter into a contract at his age. And I can use the computer afterward without having agreed to any terms at all.
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.
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