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Will the FTC Target EULAs Next?
A few weeks ago, we discussed news that the Federal Trade Commission was planning to look into DRM and the way its characteristics are communicated to customers. Now, Joystiq's Law of the Game column speculates that EULAs could be on the FTC's list to review as well.
"I would be willing to guess that within the next few years, the often maligned End User License Agreement ('EULA') may fall into the realm of being regulated as further 'consumer protection.' Is it necessary? ... The first and most common method [of consumer protection] is what is known as a 'plain language requirement.' The idea is that contracts written by lawyers are full of legal terms and are written in such a way that it takes a lawyer to decipher the actual meaning of all of the clauses. ... on the complete opposite end of the spectrum, it could be required that companies abandon EULA contracts all together in favor of a collection of FTC approved bullet points. The development and legal communities would, I assume, vehemently oppose this idea, but it is possible. Basically, the FTC would come up with a list of things all EULAs include, then a list of optional provisions that the licensor (the game company) could include."
I would be willing to guess that within the next few years, the often maligned End User License Agreement ('EULA') may fall into the realm of being regulated as further 'consumer protection.
It won't because it was never meant to be 'consumer protection' and that is quite a perversion of the EULA's real purpose: 'corporate protection'.
It is dangerous to be right when the government is wrong.
I thought EULAs were by and large found to be toothless since the customer must open the package to agree to it. By which point the transaction is complete sans EULA.
EULAs are in my book stupid but mostly harmless. It makes the company feel like its ass is covered but you can't agree to sign away rights. You can't agree to be a slave regardless what you sign.
I suppose the FTC could make them officially impotent but it's not high on my list of priorities.
I prefer software that works, thank you very much.
(No, not all Free Software is broken, but by god are the closed source commercial alternatives usually not just better, but so much better there's barely even a comparison to be made)
it was never meant to be 'consumer protection'
Of course it was. It always ways. The EULA is there to protect the corporation from its consumers.
Soon EULAs and mail hoaxes will be impossible to distinguish.
By having read the above paragraph, you agree to send your fist male son to our slave mines in Burundi. You also implicitly declare that all your bases are belong to us.
If you don't agree with our user agreement, you have to immediately send the product back to our factories, located in the third moon of planet XN-24-Pu3d. Failure to do so in the next five seconds may result in your incarceration and, possibly, sudden death.
This is an speculative opinion made by the poster of the article this thread is referencing, not a new bit of news.
This shouldn't be posted until there's someone with a little more authority on the decision than a columnist saying it.
Defective Logic
Which programs are you talking about?
I don't know about Photoshop and GIMP as I don't use either of them but all of my most used applications are Free Software:
Pidgin, Firefox, Irssi, TuxGuitar (like Guitar pro but cross-platform), VLC, etc.
So a comparison can definitely be made.
But don't let facts get in the way of your trolling.
Anyone actually think the government is getting involved to make EULAs fair for consumers?
I mean, think about it. Right now, they're basically fairly unenforceable without the corporation and EULA in question having to go to court and at the minimum get a decision in a particular case and maybe set an individual precedent.
If EULAs basically have no or very little legal weight currently, what's the purpose of the FTC getting involved, unless it's to give them force? Especially now that there's a more media-and-entertainment-industry-friendly government in power now.
Having the FTC get involved means that EULAs will then have a legal framework of government regulations to back them up. It's certain that any such regulations will allow consumers to get bent-over all legal-like, either by what's actually in the regulations, or what they allow by omission and loopholes in the wording.
In looking out for citizens' rights and interests vs corporate interests & profits, I trust the government about as far as I can throw the US Capitol Building.
Cheers!
Strat
Progressivism (aka US 'Liberalism'): Ideas so good they need a police/surveillance-state to enforce.
If this is for real...
The EULA's are bad enough as they are....So lets hope the FTC doesn't screw this up, and leave enough loopholes in it to cause the consumers to cry foul.
EULA's are not very enforceable: users don't agree to them and they are contracts of adhesion.
No papers are signed, both parties do not generally agree, and they are filed with unconscionable statements.
Almost all EULAs claim to limit users right to resell the software, however this is unenforceable due to the First-sale doctrine
Copyright gives sole right to its holder the right to create copies of works, however it does not allow that holder to control what their work is used for after it has been purchaced. (besides having purchasers not make more copies of it)
Even that text you linked to is too complicately put and somewhat inexact.
The fact is:
1. Developers didn't _need_ any extra protections against unlawful redistribution, since a copyright law had existed in the UK since 1710 and in the USA since 1787. The Berne Convention was signed in 1886.
Why does software need special protections? A book or newspaper for example is pretty clearly protected by copyright: you may not unlawfully distribute copies. You don't need EULAs for books or newspapers, so why do we need them for software?
2. The EULA -- in its generic "software license" form -- is actually as old as the first software ever sold, and was based on a loophole in copyright law: it mentioned being copied generically, but computers needed to copy a program from punched cards (later tape, later disk) to memory to actually run it. So some wise guy figured out: ah-ha, to make a copy they need a license, so we can dictate our terms to them.
That's how the idiotic concept of "licenses" for software was born.
Note that it wasn't some loophole that allowed unlawful redistribution. You still couldn't use it to copy IBM's software to another deck of cards and sell it, since that would already be forbidden by normal copyright.
It was a loophole that allowed a plain old power grab. There was this literal-minded interpretation of the law which could be mis-construed to mean: you can't use this software at all unless we grant you a license to copy it to memory. No court would have taken it that way, and if any vendor had actually tried to use it that way it would have put them out of the market right there and then. But it was enough to make people accept the notion, rather than go to court to have it clarified.
Which then got used to weasel in more and more onerous restrictions on the user. Because, hey, if it's a license, we can set the terms of that license.
But it never was any kind of protection against actual unlawful acts of the consumer or anyone else. It was just a way to bypass the normal consumer laws and restrict your existing liberties.
3. The loophole has actually long been fixed, but the idiocy of a license for software has perpetuated. Just because everyone was already used to that notion.
And the conditions continued to grow more and more absurd. Not only it generally bypasses consumer laws entirely (e.g., first sale right), it's grown to include such bullshit clauses as "you can't give it a bad review", or "you may not use it together with our competitors' software" (right up to "and we can disable it if you do"), or "we may spy on your in any way imaginable", or essentially "we can unilaterally and retroactively change the terms you 'agreed' to retroactively, in a patch you can't refuse."
(MMOs for example love to change terms and conditions like that, and refusing it essentially disables the software you've paid for. No fallback to using the old version with the old conditions or anything. At least theoretically you can refuse to install even a Windows security patch if it tries to retrofit the EULA, but you can't refuse a WoW patch without essentially disabling your software and forfeiting your remaining paid time.)
4. And since that loophole no longer exists, we hear more and more idiotic strawmen used to justify it.
E.g., that otherwise you might imagine that you bought the rights to MS Word itself instead of just a copy of it. Excuse me? When was the last time anyone went on court record as thinking he bought the whole rights to War And Peace because he bought the book from Amazon? The concept of buying a copy is and was already very clear to everyone, and already defined by copyright laws. Books don't need the extra EULA to clarify that, music doesn't, DVDs don't, etc. Why the f-word is software so special that people couldn't possibly understand the same distinction there?
5. Basically what I'd like to see clarified once and for all (by the FTC or anyone with the legal power) is to declare the whole idiocy illegal
A polar bear is a cartesian bear after a coordinate transform.
Yet every time it's more convenient for them to say "You bought it! It's yours!", they get to say that too.
If you lose a book, no one would say you get a free book - you bought the book. Sure the book is covered by copyright, but that doesn't mean you "licensed" the book. You lose it, then you have to get another one.
But with software, if you lose it, it's "Oh, sorry, you bought the software, it would be piracy to get another." It's in their favor to consider it "yours" for that. But in almost every other way, it's a "License!" that they have full control over.
IMO, one or the other. If it's just a license, then as long as it's registered in some way, if I lose it, give me a new one. If it's mine, then let me sell it when I'm done.
Right now, the corporation wins no matter what I do.
> The development and legal communities would, I assume, vehemently oppose this idea, but it is possible.
> Basically, the FTC would come up with a list of things all EULAs include, then a list of optional provisions
> that the licensor (the game company) could include.
Why would anyone oppose that? Standardizing license clauses reduces everyone's workload. A small company would not need a team of lawyers to write a EULA. And the user will be able to tell what each license means without having to read the whole bloody lawyer-speak thing. This is good.
For major applications, I can agree with you much of the time.
For utility programs and minor applications, I often find a far different situation. The commercial program needs to justify its existence, so they tend to feature-load it to the point of making it an overpriced and annoying pile of crap. Meanwhile, the F/OSS app just does what its intended to do, and doesn't get in your way.
The EULA is there to protect the corporation from its consumers.
Think of it as a corporate condom. It enables the corporation to screw its customers without worrying about the consequences.
Those who can make you believe absurdities can make you commit atrocities. - Voltaire
This is not difficult, in fact it's much easier than actually writing software. Here's the license.
Easy to read and not objectionable... eh? We put the bulleted summary at the top so that the key points would be visible in the UI.
Other companies don't do this because they choose not to.
I hate steam for this reason. You can't resell your games.
Of course, just about every Windows gamer loves Steam. I guess you don't need to set the bar very high to get a PC gamer to buy your game. It's no wonder onerous DRM is on the PC.
The really irony is that it Steam actually makes games very easy to pirate. No need to get wait for an updated no-CD crack. No need to enter serial numbers. No need to have media physically present. No need to make a PITA backup copy of the copy-protected CD.
Really, Steam makes it painfully easy to pirate games. Valve mostly creates single-player games so it hurts them even more.
Actually, it's even funnier. IIRC in India they actually tax licenses. So if you have an actual license, say, to make a movie based on someone's book, the government wants its share of that deal.
So they took this to the logical conclusion: if Microsoft's software is licensed, not sold, the license tax should apply.
Microsoft actually tried to prove to the court that it's a sale not a license.
Funny stuff.
A polar bear is a cartesian bear after a coordinate transform.
(this is coming from an anarchist who hates all government)
I am sick of fifty page EULAs that allow big corporations to spy on my and delete my files at will. It's time to throw Steve Balmer in prison for claiming that he can commit fraud and get away with it! (that's in the XP SP2 EULA)
More consumer protection is socialism!
We don't do socialism. They had consumer protection in the Soviet Union and look where that got them.
If you look into the history of this, you will find that in the past, corporations have tried the EULA concept on just about every type of product other than software, and have been shot down in the courts every time. I don't remember the specifics enough to cite the case properly, but there is legal precedent stating that if you go into a retail store, put down your money, and walk out with a product that was on the shelf -- barring any prior agreement with the store or manufacturer -- then you have PURCHASED that product, not "licensed" it, regardless of any language on the package. And most particularly, regardless of any language that is IN the package.
I really wish I could remember the specific case because it has direct bearing on this issue.
Even though I do not have that information at this time, I can still safely say that the EULA concept has been tried on just about everything, and the courts have very consistently rejected the idea. You can't place "after the fact" conditions on a purchased product.
Note that this concept does not hold, however, if you purchased your product direct from the software company, say for example, and agreed to a EULA before the sale. In a case like that, the EULA may be enforceable.
At the time if you broke the copyright and copied the file for your own personal use after paying for it, the total damages were nil.
Therefore, since the UK had it as a civil tort not criminal one, the license could be broken at will and no recompense was due the copyright holder since no damages were incurred.
Then the US and BPI/FAST/FACT got criminal tagged on to the civil law and that all fucked up because they didn't change the personal use clause.
The problem is that there is not a major retailer anywhere in the United States that, as a policy, will give refunds on software once the package has been opened. The software companies know that, because THEY were the ones who lobbied the retailers to put those policies in place. They did not want people buying a product, copying the disk(s), then returning it to the store.
So the clause that states that one should return the software if one does not agree to the EULA is misleading, probably to the point of actual fraud. The software companies are very aware of the situation, so telling customers to return a product is like telling them to anything else that is impossible, like swimming the Atlantic Ocean unaided.
This makes the EULA even more a "contract of adhesion", since despite the return clause, there are actually no viable alternatives.
Also, your analogy is not valid. A warranty is NOT a "license". They are completely different concepts. Since you brought it up, however, let me say that manufacturers and retailers have tried the EULA concept on just about every kind of product in existence -- included printed books -- and in EVERY case except for software, the courts have rejected the concept. Why should software be any different, when it gets its day in court?
have pretty consistently upheld the idea that the "first sale doctrine" applies to software, just as it does to books. In other words, you walked in to the store and bought it, and you have the right to sell it when you are done with it.
used to have what they called their "No Bull license agreement."
The agreement stated (I am paraphrasing but this is pretty close): "Treat it like a book. Use it only in one place at any given time."
In other words, you could install the software on different machines, say at home and at work, as long as you only used one of them at a time.
Seems pretty darned reasonable to me. Of course the lawyers took over and they don't have that in their license anymore. Too bad.
I've said it before but what is the actual point of them apart from allow the companies to discharge all responsibility for everything, ever?
Hence there's not been one EULA I've taken the slightest bit of notice of, and I'm sure I'm not the only one. They are a waste of time.
You are quite correct because the EULA is all about covering your ass as a company. Most of it boils down to "You're paying us for this software and we're not even going to promise you that it will work, much less work properly. If it doesn't work, you're screwed. Have a nice day."
2 cents,
QueenB.
HDGary secures my bank
starts with understanding how deep the corporate penetration will go.
how about protection from unreasonable eulas?
3. The loophole has actually long been fixed, but the idiocy of a license for software has perpetuated... I would argue that it never really existed, and EULAs have been BS from day one. Making the "copy" in computer memory is the primary intended use of the software's distribution media. To say you can't make that copy means the product is "unmerchantable" and "unfit for its intended purpose". It's just like selling you a book, and including a note on the last page saying you had a right to read it only under absurdly limited conditions (sitting in a genuine Barcalounger chair, under a genuine GE 50/100/150W three-way lamp, while drinking a genuine Starbucks Grande Mocha double-shot half-caf). Total nonsense!
Most software EULAs are "shrink wrap" licenses, which have yet to be fully supported by law in the United States.
As I have mentioned elsewhere, at least in regard to retail goods, EULA-type "contracts" have been pretty consistently rejected by the courts. In fact, they have been tried for almost every kind of retail good besides software, and I am not aware of a single instance where EULAs were upheld. In fact, there is very strong court precedent for the concept that if you bought it off the shelf in a retail store, you have actually purchased, not licensed, the product no matter what the language on the package. Licenses -- especially "after the fact" licenses -- do not apply to purchased goods.
I see absolutely no reason why software should be any different.
Bingo. That's _exactly_ why I said, "and if any vendor had actually tried to use it that way it would have put them out of the market right there and then". Any vendor going to court arguing that you bought a copy but it can't copy it to RAM, would have effectively made the case that the goods they sold cannot be used for the intended (and explicitly stated) purpose.
But originally the licenses were pretty benign. It was little more than a clarification that yes, you may make that copy, and nobody bothered going to court to make a case like "we didn't need that clarification anyway." Remember that in the beginning it was only corporations and government institutions which could even afford a computer at all. These tend to not waste lawyer money to clarify ideological points. If they get a piece of paper saying basically, "no, we're not going to sue you for using the software you bought", that tends to be enough. It's an absurd piece of paper, but meh, who cares?
Unfortunately that's been the start of a slippery slope. Once people got used to the idea of "licensing software", it went downhill. But again, even if someone in the beginning would have foreseen such a slope, it was people who don't fight legal battles for the future common good.
A polar bear is a cartesian bear after a coordinate transform.
Something I have long wondered about but never seen an answer to is what happens when a person under 18 buys a computer game and installs it himself. Minors generally can't be held to contracts, right? So are minors not allowed to install their own games without violating copyright? If a minor does install a game, what are the legal ramifications? Of course the game companies know damn well that a huge percentage of their customers are going to be under 18. I have never seen a "If you are under 18, get a parent to click yes!" box pop up on a game EULA.