UK Report Slams EULAs

draevil writes "Britain's National Consumer Council has completed an investigation into the practice of software End User License Agreements(EULAs) with the conclusion that many consumers are signing away their legal rights and agreeing to unfair terms, which they could never have scrutinized before purchase. The report also acknowledges that even if the EULA were available prior to purchase, it would be unreasonable to expect an average consumer to understand the terms to which they were agreeing. Here are the full report (PDF) and a summary." The NCC recommends that the European Commission bring softwre licenses under the same consumer protections that apply to other products in the EU.

Comments

Unfair Contract Terms Act 1977

[tagishsimon]

UK consumers who have reason to contest contract terms would likely be protected by the Unfair Contract Terms Act 1977.

Re:They didn't review the GPL

[sconeu]

GPL is a distribution license, not an EULA. Section 0 specifically says you don't need to agree to it to use the software.

GPL doesn't take away any of your (end users) rights under copyright law, it adds additional rights.

GPL (at least GPL2) is readable and pretty much understandable by mere mortals.

Re:Where's my signature?

[sjbe]

IANAL, but how does clicking a button on a VB form constitute a legally binding signature? A signature isn't the only way to legally agree to something. There are verbal contracts, contracts and licenses agreed to by an action (think GPL), the Uniform Commercial Code which sets the terms of many sales unless both parties expressly agree to some alternative arrangement, and others. A signature is just one way (albeit a common one) to acknowledge your agreement to something.

In college I asked a law professor about EULAs and his take was that (generally speaking) EULAs are enforceable only if the buyer has had an opportunity to review them prior to the sale. I think this is a reasonable argument, especially since in practice you cannot return opened boxes of software. He would be the first to acknowledge that this has not been widely tested in court however so take what I'm saying with however much NaCl suits you.

Re:No need.

[reebmmm]

Lies and damned lies.

I think that the parent's post is probably one of the favorite myths of this site. And, as a matter of law, it is simply not true. When you "accept" GPL software, you "accept" a few very important things:

2. Basic Permissions.

All rights granted under this License are granted for the term of copyright on the Program, and are irrevocable provided the stated conditions are met. This License explicitly affirms your unlimited permission to run the unmodified Program. The output from running a covered work is covered by this License only if the output, given its content, constitutes a covered work. This License acknowledges your rights of fair use or other equivalent, as provided by copyright law.

You may make, run and propagate covered works that you do not convey, without conditions so long as your license otherwise remains in force.

***

15. Disclaimer of Warranty.

THERE IS NO WARRANTY FOR THE PROGRAM, TO THE EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT WHEN OTHERWISE STATED IN WRITING THE COPYRIGHT HOLDERS AND/OR OTHER PARTIES PROVIDE THE PROGRAM "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PROGRAM IS WITH YOU. SHOULD THE PROGRAM PROVE DEFECTIVE, YOU ASSUME THE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
16. Limitation of Liability.

IN NO EVENT UNLESS REQUIRED BY APPLICABLE LAW OR AGREED TO IN WRITING WILL ANY COPYRIGHT HOLDER, OR ANY OTHER PARTY WHO MODIFIES AND/OR CONVEYS THE PROGRAM AS PERMITTED ABOVE, BE LIABLE TO YOU FOR DAMAGES, INCLUDING ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE PROGRAM (INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR DATA BEING RENDERED INACCURATE OR LOSSES SUSTAINED BY YOU OR THIRD PARTIES OR A FAILURE OF THE PROGRAM TO OPERATE WITH ANY OTHER PROGRAMS), EVEN IF SUCH HOLDER OR OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

In this sense, it is an agreement with END USERS. Among other things, it grants to the end user the permission to run the software. It also addresses distribution, but that is not the point.

I also states that you get it without any warranties (non-infringement, merchantability, fitness for a purpose, etc.). And it states that even if you think you had damages because of the use of the software, you'd have no right to recover anything.

I'll point out, most people think that limitations on liability that limit your damages to $0 as some of the most heinous parts of EULAs.

If you don't agree to those terms, you can reject the offer.

Even under the terms of most EULAs (and most case law), a EULA is only effective if you have some right to reject: return, refund, etc. ** Contrary to what some think, that right to reject doesn't have to be "easy" or obvious. **

The Borland "It's like a book" license c. 1980s

[davidwr]

In the 1980s, Borland products came with a "treat it like a book" license.

It was written in Plain English. It essentially said you could trade, lend, buy, sell, resell, etc. as long as no more than one person had copies at a time and that the software wasn't being used on more than one computer at a time.

Re:return-to-store test case

[Anonymous Brave Guy]

The judge should rule that either:

*you had a contract with the store, in which case the product did not meet ordinary merchantability standards i.e. it would not work without imposing other obligations not present at the time of the contract, in which case you can void the contract

Part of the problem here is that in the UK, while you have some protections if you buy something that comes in a box, the general legislation (basically the Sale of Goods Act) may not apply to downloads that are purely electronic in nature because of some legal loopholes. It's not clear that under those circumstances there is any requirement of merchantability, suitability for a particular purpose, or similar.