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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.
But I always felt that EULAs, especially 'shrinkwrap' ones, never met the old tests for a contract:
- a 'meeting of the minds'
- agreement in exchange for 'a valuable consideration received'
You can't talk about Wikipedia's flaws on Wikipedia
Would have been awfully nice to see the GPL considered side-by-side with these other licenses.
Does the GPL also create an imbalance between the rights of the distributer and the rights of the consumer?
-fb Everything not expressly forbidden is now mandatory.
If I've signed something away, there should be something in writing with my signature. I don't have it, and I bet the software companies don't, either. IANAL, but how does clicking a button on a VB form constitute a legally binding signature? If I hack the installer program and remove the form, does that mean I'm not bound by the EULA (even if it tells me I'm not allowed to hack the installer program)?
!#@%*)anks for hanging up the phone, dear.
Considering they object to 10 page EULA's for products I wonder how they feel about Terms and Conditions for product and services bought online? Last time I signed up for a server host I read through about 15 pages of terms and conditions which were contained with a tiny scroll box and that company was UK based. As far as I can tell the reasons they give for objecting are equally valid for every UK ISP I've signed upto and every service I've bought online. Should be interesting to see where it goes.
If you are presented with a contract by a company, you can cross out sections of the contract that you can't live with. If the company's agent accepts that contract, they are bound by it. (subject to vagaries of contract law)
If I were to write a utility that would allow me to electronically cross out sections of an electronic EULA, and then the program (the owner's agent) accepted that modified EULA, would both parties be bound by the new contract? What if my utility allowed me to add sections as well. i.e. If this MS program crashed, MS will pay me $1,000,000
Most EULAs will allow you to print them before accepting them. I could make the same modifications to the paper copy as well. Even if there was a pre-clause that said the EULA couldn't be modified, I could cross that out too.
So would such a program mean the end of EULAs as we know them? Would software publishers have to fall back to straight copyright and save the legal mumbo-jumbo?
All ideas^H^H^H^H^Hprocesses in this post are Patent Pending. (as well as the process of patenting all postings)
If you are presented with a contract by a company, you can cross out sections of the contract that you can't live with. If the company's agent accepts that contract, they are bound by it. (subject to vagaries of contract law)
If I were to write a utility that would allow me to electronically cross out sections of an electronic EULA, and then the program (the owner's agent) accepted that modified EULA, would both parties be bound by the new contract? What if my utility allowed me to add sections as well. i.e. If this MS program crashed, MS will pay me $1,000,000
Most EULAs will allow you to print them before accepting them. I could make the same modifications to the paper copy as well. Even if there was a pre-clause that said the EULA couldn't be modified, I could cross that out too.
All ideas^H^H^H^H^Hprocesses in this post are Patent Pending. (as well as the process of patenting all postings)
"The NCC recommends that the European Commission bring softwre licenses under the same consumer protections that apply to other products in the EU."
Software companies has enjoyed unprecedented loose consumer protections. In fact, no protections has existed at all. The only protection is really the laws about advertising. That is, the software should act and do something that atleast is near what the adverts says.
If EU would bring normal consumer protection to software it should also work as expected. That is, it should not crash and burn without the manufacturer fixing it for you. With the same protections as for hardware it would cost countless millions to make your users the beta testers.
My work as an sysadmin would more be about tailoring solutions and less about getting expensive systems running with bandaid, duct-tape and broken patches that shouldnt be there in the first place.
Its about time software stops being treated like books and start living under the same rules as everything else. If a patch hooses my system the most i can hope for today is a patch regardless if it costs me millions in business. Most often in my case the answer has been "buy our next version, it really works this time, promise, cross my heart".
Things like this would punishing poor quality and i think that is really about time. Right now software really sucks.
HTTP/1.1 400
I'd love to see someone do a return-to-store test case:
Go to a Big Box Computer Retailer, use cash to buy an expensive item you know the manager won't "just let you return" in the interest of customer satisfaction, take it home, open it, start to install it, click "no, I don't agree," then try to return it. Use cash so it's clear you don't have recourse through your credit-card company.
The store says no. File a several-hundred-dollar-plus-court-fees small-claims action.
Wait for the store to transfer the case to regular court. Amend your suit to include legal fees and triple damages for being an ass, offering to settle for the original purchase price plus legal fees incurred so far all the while, so the judge knows you aren't being an ass.
Wait for the ruling that the contract was not complete until you click on "yes, I agree." 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
or
*The store is acting as an agent for the software maker. You gave the store owner funds to hold until you entered into a contract with the software maker. If you did not enter into the contract you have a reasonable period of time to seek a refund from the store.
In the worst case, the judge will let the store off the hook but allow you to add the software maker as a co- and later sole-defendant, and rule that the software maker owes you a full refund plus sales tax. In this case you will be out your legal fees though.
In any case, there will be a ruling giving consumers protection up to the point that they say "yes, I agree."
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
A contract is binding when you agree to it. I have always been tempted to simply mail them a letter before installing the software in which I say "I am writing to inform you that I do not agree to your EULA, and I do not agree that I need a license to use this software. Since you sold me these nice shiny CDs containing the software, I am going to go ahead and install it. Have a nice day." Now this violates the Do Not Poke The Bear principle, but is on firmer legal ground than just ignoring it and hoping it will go away. The question is, when their lawyers send you a reply, what can they argue about? You didn't violate copyright (you bought a legal copy from the owner). You didn't agree to a contract so it isn't breach of contract. What legal grounds do they have to say "don't use our software", other than "we don't give you permission"? And who says I need their permission? It's my computer. If nothing else, their demand letter would have to include a refund check, otherwise they are in violation of their own EULA.
The evidence I point to the most is that I work for a state university. As a state employee I can't sign anything for the university, it all has to be sent to legal. Have to make sure that everything is kept in a row as far as what the state agrees to. However they've told us we can just click through on the licenses on software. Clearly, it is because they don't believe they are enforceable, and they are a rather cautious lot.
As for being a contract it fails in several ways:
1) As you noted, there's no exchange. A contract MUST have an exchange to be valid. Even if you do something like quit a claim to a house (like you helped your kid by co-signing for it and now you are giving it over to them) it will still read "For the sum of $10 and other valuable consideration." Why? If there wasn't an exchange, the contract would be null.
2)It's ex post facto. Contracts have to happen before the sale, not after. That's why when you buy a house all the loan documents and such are done before you take ownership, before money changes hands. You can't try and say "But you agreed to this!" after the fact, you do it before hand or it is too late.
3) Not open to negotiation. That's what the "meeting of minds" thing means. A contract has to be open to negotiation. You don't have to meet face to face or anything (often it is done through the mail) and you certainly don't have to accept what the other side proposes, but you have to be open to it. You can't hand them a contract to sign and then have no way to get back to you.
4) No proof of agreement. That someone clicked "I agree" means nothing. There's no proof you agreed to it, or indeed that you were capable fo doing so. What happens when a minor buys a game and installs it? A minor can't enter in to a contract on their own, the parents never cosigned, etc.
There is really nothing about an EULA that meets the normal standard of what a contract is. If they want a contract governing their software, they need to have you sign it beforehand. However I'm going to guess that if people are presented with a 10 page wodge of text (EULAs are longer than any rental agreement I've seen) to read and sign when they try and buy an Xbox game, that it'll prove quickly to be an unworkable business model.
You don't get the chance to review the contract before you sign it.
Sign it? I've never signed a EULA. I might have clicked 'I agree' but that carries no legal weight, at least in the UK. They need my signature.