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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."
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.