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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.
The whole point of the EULA is to ensure that there are so many conditionals that you'll be snagged by at least one or two unpalatable in any given jurisdiction. It doesn't matter if 95% or more of the EULA is outright illegal in your state or country; there'll still be enough leftover to have you by the short 'n' curlies.
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?
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=-
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
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.
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
... 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
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
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
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.
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.