Slashdot Mirror
Two New Class-Action Suits Against EA Over DRM
In September, we discussed a class-action suit filed against Electronic Arts over the DRM in Spore. Now, two new class-action suits have been filed that target the SecuROM software included in a free trial of the Spore Creature Creator (PDF) and in The Sims 2: Bon Voyage (PDF). If this sort of legal reprisal continues to catch on, EA could be seeing quite a few class-action suits in the future. One of the suits accuses:
"The inclusion of undisclosed, secretly installed DRM protection measures with a program that was freely distributed constitutes a major violation of computer owners' absolute right to control what does and what does not get loaded onto their computers, and how their computers shall be used ... [SecuROM] cannot be completely uninstalled. Once installed it becomes a permanent part of the consumer's software portfolio ... EA's EULA for Spore Creature Creator Free Trial Edition makes utterly no mention of any Technical Protection Measures, DRM technology, or SecuROM whatsoever."
Also, this is not a contract. Clicking 'I agree' is not a legal way to sign a contract and it is not legal to unilaterally add conditions once a deal is done (once you gave them money, they can't force more conditions on you). They know this, this is why they call it a license. However, a license cannot only grant you rights, it cannot remove them from you.
Hence, EULAs are bogus.
Slashdot anagrams to "Sad Sloth"
The courts do not see it that way. I've seen a number of cases were EULA's were deemed valid, I have yet to see one where the EULA was deemed invalid (though parts of it being unconscionable are probably common enough).
Liberte, Egalite, Fraternite (TM)
Some courts have upheld EULAs in the past. In some cases they have even upheld shrinkwrap EULAs that you cannot see until after you have accepted them (where a 'reasonable person' would have expected the clause to be present in the contract). I am not a lawyer, but I strongly suspect the parent poster isn't either and you should think twice about taking his "EULAs are bogus" advice.
The U.S. District Court of Kansas in Klocek v. Gateway [2000 U.S. Dist. Lexis 9896, 104 F. Supp.3d 1332 (D. Kan., June 16, 2000)] ruled that the contract of sale was complete at the time of the transaction, and that additional terms included in the package did not constitute a contract, because the customer never agreed to them when the contract of sale was completed.
There ya go.
But really the case *I* want to see is one where software installation pops up a click though EULA, the person clicks the EULA's DECLINE button, and then proceeds to complete installing and using the software anyway. It's not particularly hard for a programmer to write a utility to do that.
US law Title 17 Section 117 explicitly states that you need no license whatsoever in order to lawfully install and run software you have bought. So you have explicitly declined their EULA contract offer (which is what an EULA actually is, nothing but a contract offer), and you have perfectly lawfully installed an lawfully use the software. By declining the EULA you receive no license and receive nothing else the contract offers, but generally EULA offer nothing that you want or need.
THAT is the court case I want to see. There is absolutely no legal reason you need to accept an EULAs. You don't need it. It's just that they make it really inconvenient to install it without clicking the agree button. In the case I described they have absolutely no hook available for them to hang a claim of contract acceptance. They sold it to you, you declined the contract, and you perfectly lawfully proceeded to use the software you bought without any contract and without any license.
Actually I believe there is a valid argument that a purely local process of clicking the "accept" button on your own computer and involving no one else and doing nothing you didn't already have the right to do, that that would validly establish a contract either. However that is a far more disputable situation and it seriously has the appearance of accepting a contract. I think judges are going to have a hard time seeing past that appearance of contract and ruling against it unless there is a a clear ruling on my reject-and-install example first. Once it is clear that you *can* legitimately avoid the contract then they will be far more accepting of the legitimacy of other means of avoiding the contract, more accepting of more subtle arguments on what exactly what act does or do not indicate binding acceptance of the EULA contract offer.
-
- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
What about the DMCA?
Thoughts?
My first thought is to puke.
My second thought is that "click yes to continue" ranks about three levels below ROT13 as a technical protection measure.
The DMCA is a totally incoherent clusterfuck of a law. I have actually read most of the judge rulings on DMCA-circumvention cases, and I don't think any of them have managed a coherent construction of the critical issues. They apparently decided if they like or dislike what you are doing, dodge the undefined aspects, and then conjure some very creative narrow discussion with little connection to anything in the actual law an no connection to anything any of the other judges have ever ruled. If the judge views you as some naughty hacker doing something to annoy wholesome businessmen, then he rules against you. If he decides the businessmen are abusing the DMCA then he makes up some excuse to toss the case.
Some judges would likely be more than willing to hit you with the DMCA in a ROT13 case but I think.... I hope... that few would actually buy into "click YES to continue" as an effective technical protection measure. But yeah, I can definitely see some company pushing that argument. Puke puke puke.
-
- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.