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Don't Like EULAs? Get Your Cat To Agree To Them
An anonymous reader writes "Anne Loucks built a device which, when her cat steps on it, can click the 'I Agree' button of a EULA. Who knows what the lawyers will make of this sort of madness. Can a cat make a legal agreement? Does it need to be of legal age? She lures the cat onto the device, and the cat steps on it of its own free will. Anyway, folks who hate EULAs now have another tool to make the lawyers freak out."
Call me crazy, but since you built a device to allow your cat to agree to EULAs, wouldn't that mean you authorized the cat to act on your behalf - regardless of how inept a decision maker it may be?
Track your TV Shows with your iPhone - FREE
Just have your underage kid click. They cant enter into a contract.
Of course if this happens too much, they will require you to produce a CC# and SSN for each EULA that gets sent back to the company. Or even force you get it at the store you bought the box from.
---- Booth was a patriot ----
Hey it could be worse. It could have been bears and we all know we can trust those godless killing machines.
Well, there's spam egg sausage and spam, that's not got much spam in it.
You don't want catbert, the evil HR cat from dilbert to agree anything for you on your behalf. NOT. EVER!
Just sign the EULA, pussy
Tell me about it. EULAs are retarded.
Unless they practice law
We know them as rules lawyers: the people who try and find convoluted, novel ways to evade the rules without exactly breaking them. Courts are real familiar with them, and over the centuries have developed lots of ways to deal with them. The easiest response to this I see is "Since the cat's acting at your behest, you've authorized them to agree to the contract for you. Since you authorized them, you don't get to argue whether or not they're capable of doing what you authorized.".
Just ask some neighbor kid to install your software for you, one that's too young to enter a legal agreement. Seems much more simple, and unlike this cat device, gives you plausible deniability to claim "I didn't even realize there was a EULA, let alone agree to it."
I went to eat some animal crackers and the box said, "Do not eat if seal is broken." I opened the box and sure enough..
What the fuck is this shit? Seriously.
No, really. Does anyone sane actually think this would have even the tiniest chance of working?
Can a cat make a legal agreement?
A cat is property, not an individual. Animal law has been quite unsuccessful in breaking out of that mold. So, no, a cat can't make a legal agreement anymore than your keyboard and mouse can.
However, the cat here is just a tool for you to accept the agreement. If you set up a device to automatically agree to a license without you fully reading it, you've still manifested an intent to accept the terms, whatever they may be. I don't think a court would have anymore problem with holding you to the contract than if you used machine to automatically stamp a signature on a stack of paper contracts. It wouldn't matter if it worked on a timer, on a RNG, or on the fickle movements of a cat so long as you set it up to happen with certainty that it would eventually happen (because you can't proceed with the installation without it happening).
If it's for-profit but free, you're not the customer -- you're the product (e.g., the Slashdot Beta's "audience").
Troll? It's a serious question. What the fuck IS this shit? And I am referring to the article.
What the fuck is next -- "Don't like contracts? Have you ink pen sign them! Simply coax your ink pen (through digital manipulation) into signing a facsimile of your name! Oh imagine the lawyers dismay!"
So seriously, what the fuck is this shit?
I give the lady an A for effort but it won't hold up in court. She will help to line some lawyer's wallet.
Virginia is for lovers. EVE is for griefers.
"She lures the cat onto the device, and the cat steps on it of its own free will."
Doesn't really seem to be free will then, does it? I mean, is the term "free will" even allowed in the same sentence with "lures"?
What doesn't kill you only delays the inevitable
It's smarter and doesn't claw me.
-- Tigger warning: This post may contain tiggers! --
This may be an amusing piece, but having the cat do your bidding is really no different from having the mechanics of a keyboard and GUI software cause the "I Agree" button to be activated, particularly if you're coaxing the cat and adding the device solely for the purpose of circumventing agreement to the EULA.
...pushing the button with a stick. Most of the EULAs and TOS that she has used her cat to click are probably unenforceable but for other reasons, not this.
Warning: this article may contain humor, sarcasm, parody, and perhaps even irony. Read at your own risk.
i think this lady was on my phone once
Haha! Negative equity isn't a problem for me, I don't have to pay back my mortgage, because I got my goldfish to sign for it!
Combination - fun iPhone puzzling
I have a box in which I seal a cat along with my computer and a radioactive isotope. I connect an electronic monitor to the cat, and it is rigged up to click the "Agree" button if the cat dies.
If you cause the "I Agree" button to be clicked, even indirectly by a cat, you are just as bound as if you had clicked it by hand yourself. There are a variety of possible ways to get out of a EULA; this isn't one of them.
(To my knowledge, nobody has been foolish enough to actually try this sort of defense, so it's *conceivable* that I'm wrong. But, I would be very surprised.)
Well, actually- it points out the absurdity of a contract without a signature.
SJW: a person who perceives an injustice, and while correcting it, commits a greater injustice.
Funny, this doesn't LOOK like Idle...
I tend to edit the EULA before I click "I agree". Usually, I just clear the box to which I'm ageeing.
That won't take you off the hook. By luring the beast onto the device and having it agree to the EULA, you're employing the it as your proxy or agent, your utensil or tool, your...um, what's the word...your cat's-paw.
I've calculated my velocity with such exquisite precision that I have no idea where I am.
A CAT IS FINE TOO
What if someone bypassed the EULA entirely (e.g. hacking the installer so that "I Decline" still continues).
Since you've never agreed to the EULA in the first place, you're not disallowed from hacking it (consumer-unfriendly millennial laws not withstanding).
My cat successfully changed my email password when I was out. I still don't know how that furry demon could have pulled it off as my email wasn't even open at the time.
Oh yes, she also wrote a fairly extensive message using notepad as well that same session, but I couldn't read it. Guess xer wewnunpoxcwerwbwyty is only understandable to cats.
Then you can claim that either Schroedinger accepted the agreement, or the software company killed your cat.
Well, actually- it points out the absurdity of a contract without a signature.
A contract doesn't need a signature, dumbass. It's just a convenient way to prove you agreed to the terms. An EULA does exactly the same thing.
When will malware authors make a virus that automatically accepts EULAs. They'd be doing us a favor.
If you make the cat click on the 'I Agree' button, doesn't that make the cat the actual licensed end user, not you? Meaning you're actually using your software unlicensed (gasp!)?
And many EULA:s won't even hold in court.
If builders built buildings the way programmers wrote programs, then the first woodpecker would destroy civilization.
The EULA was invented by Microsoft, making new ground in the world of contracts.
It is a unilateral agreement, just like the "if you open this, you agree to our terms" mentality.
It is NOT a binding contract, since until you open, install and read, you cannot have a meeting of the minds necessary to a valid contract. Wishful thinking to many. NOT a binding Contract.
I am not a lawyer, but I was not born yesterday either. Five elements of a contract are :
The contract must be for legal purposes
The partied must be of sound mind and able to enter into the agreement
The terms must be available before the contract can be entered into.
There has to be an understanding BEFORE the contract can become "real"
There has to be consideration for both parties
EULA's and shrink-wrapped contracts fail on two of these points.
The 'Catch 22' effect is in full force. You cannot know exactly what you
are agreeing to unless you open the package. I say shoot anyone who tried
to enforce this stuff, and the lawyers who believe this crap.
Plus many KIDS click YES
What the fuck is next -- "Don't like contracts? Have you ink pen sign them! Simply coax your ink pen (through digital manipulation) into signing a facsimile of your name!
Well, if your cat agrees to a contract, it doesn't mean you have agreed to it, hence you are not authorized to use the software. The pen on the other hand, has no free will (try disproving that in court), so it acts as a medium through which your will is enforced. Please go back to taking a class in critical thinking.
FreeBSD bounties
Personally, I'm disappointed that companies keep calling me and treating me like just a "user".
More of them would get my business if they actually treated me like a member.
Here is an excellent talk from TED making the same point about the rules and the humanity of business:
http://www.ted.com/index.php/talks/barry_schwartz_on_our_loss_of_wisdom.html
...but this is simply asinine.
If you make your cat click an agreement, you are clicking the agreement. It's no different than putting on a pair of gloves and clicking the agreement. Do you honestly believe that the "It wasn't me, it was the gloves" defense would hold up in court?!
If someone says he and his monkey have nothing to hide, they almost certainly do.
Does anyone know of a case where a company has successfully enforced a EULA?
Think Deeply.
I seriously doubt any company could put a clause that requires something from the user that would ever stand up in a court of law. Besides, you generally agree to them anonymously, so it isn't like they could actually track you down to ask for that firstborn you promised them.
Other than some pretty weird copyright statements like the latest Facebook TOS I've never really seen anything that made me look twice in an EULA (and no, truthfully I don't generally read them).
Again, even with the "we own your stuff" type agreements, I think it is just another attempt to completely cover their own asses and prevent users from trying to sue them for publishing stuff they posted publicly out of their own free will. Yes it is going too far, but you can't blame them for trying... well I guess you can blame them for whatever you want really ;-).
...followed by "Delete."
Does anyone remember the cartoon "Freakazoid"?
If it hadn't been for the cat..
A contract doesn't need a signature, dumbass. It's just a convenient way to prove you agreed to the terms. An EULA does exactly the same thing.
Correct, it doesn't need a signature. However, some proof of a 'meeting of the minds' is required. A click-wrap agreement doesn't necessarily provide this.
My blog
Copy the CD, usually the file with EULA is in EULA.TXT or similar in a directory. Change it. Reburn. Install. IF the CD/DVD is required in the drive, put the original when needed. All my EULA says something like "AEPERVIUS RULEZ" when i agree on them.
C. Sagan : A demon haunted world:
http://www.amazon.com/gp/product/0345409469/
visit randi.org
This is not news! I have a mouse that has been accepting EULAs for years!
I've been doing that for years...Yeah, that's it...I've been doing it ever since the first click-through EULA. Yeah, and I carry my cat with me everywhere just in case I ever need to download software.
Well, actually- it points out the absurdity of a contract without a signature.
Ever heard of an oral contract?
"Anyone who [rips a CD] is probably engaging in copyright infringement." - David O. Carson
My and my cousin Vinny kill people for a living.
Do you really think I'm bound by some stupid license? Bah.
"I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
I can haz EULA?
I wouldn't want my cat being petted by those gigantic, thick hands.
I didn't do it.
Nobody saw me do it.
You can't prove anything.
IANAL, but there has been trials (incidentally also featuring a Simpson) where the defendant said he didn't do it, and wasn't required to say who did. Prosecution was required to show he did. You don't really have to frame your cat, but if you're a dog-person it's understandable.
...she doesn't have to use force.
If my kid installs it, the kid isn't of legal age to agree to any contract - what does $MEGACORP do in the face of that?
EULAs themselves are rather brittle and fragile anyway, even legally. I suspect that once challenged head-on in court (notice that no corporation is really willing to do that), it'll come apart like a house of tissue paper in hurricane-force winds.
Quo usque tandem abutere, Nimbus, patientia nostra?
...the argument which is stated in above comments frequently, is that since the device was created to allow the cat to accept the EULA, that it's giving the cat permission to act in your behalf (or however you want to state "allowing it to be tracked back to you").
This may be true. However, what if the cat just randomly walks across your keyboard and hits the correct button without any direct help? It seems to me that the above situation would discount that argument (even though I'm sure lawyers could find something else, obviously).
"Intelligence has nothing to do with politics!"
-Londo Mollari
If only there was some way to mould the contents of a cat box into the words "I Agree" or "I Don't Agree" and mail them to the company behind a particular EULA. Probably illegal to ship through the mail, however.
Legally cats are objects, under your same responsibility as other objects. You might as well build a machine to automatically agree to EULAs, that would be just as if you agreed yourself. When's the last time blaming the dog (or the cat) worked for you anyways?
You just got troll'd!
It's not a 'device' it's two pieces of fucking cardboard. I agree with the parent, this is fucking stupid.
I say don't drink and drive, you might spill your drink. Before you get behind the wheel just stop and think.
Just say it was the cat, who'll ever know you just committed perjury? Besides, my cat just tacitly agrees with everything I say.
My cat can refuse the Vista EULA, format the hard drive, install debian, and launch a lawsuit to get the money back for the useless OEM-Vista sticker. Not yours.
My understanding is that they primarily serve the purpose of protecting software companies from frivolous lawsuits
I would argue that if this is the objective of EULA's then they have failed miserably. SCO is a shining example. There is no shortage of frivolous lawsuits against software companies.
I have an SPLA posted on the front of my computer, very clearly labelled, and in big bold print.
It basically states that by allowing your software to be installed on this hardware, you (the software provider) agree to the following.
1) Your EULA is null and void.
2) Your software cannot make any changes unless I agree to them beforehand.
3) Your software cannot call home unless I authorize it, every time (this is enforced via firewall rules outside the box).
4) Your software cannot interfere with the operation of any other software on the hardware installed to. (prohibits viruses, malware, adware and automatic disabling software)
5) Any violation of the above terms can constitute a cyber attack against the hosting hardware, and treated as such, and dealt with using the strongest legal measures available at the time of attack.
Granted, my SPLA will hold up in court as well as their EULA, but it is posted, and yet their software installs - so they are as bound by my terms, as I am by their terms.
Who is general failure, and why is he reading my hard drive?
I CAN HAS LAWSUIT?
A mandatory LOLCATization of a picture in the article - LOLCAT conversion complete
Face your daemons!
... THEIR cat typed @[=g3,8d]\&fbb=-q]/hk%fg followed by DELETE...
Awwwww... FREAK OUT!
Everyone keeps trying to "solve" the "problem" of ways to use software without agreeing to the terms. What happened to the simple expedient of using some alternative software? I know the Slashdot users feel entitled to do whatever they want with other people's work, but that's such a poor justification from so many perspectives. Can anyone solve this quandary for me without expressing it in terms of their own greed?
So, you're claiming that the cat most likely rejected the EULA?
Thank you, Edward Snowden.
"Arguments from authority are worthless." —Carl Sagan
I'd argue that since you were the one that "coaxed" the cat onto the device, for the sole purpose have having an "I Agree" button pressed, that your will was done through the cat. I'm not sure why this is any different than pressing the button on a mouse. You're still deciding the outcome. You decided to either coax the cat onto the device... or not. It most likely was not the cat's idea to go through this exercise.
yvan eht nioj
Do they have your signature, do they have a spoken contract, do they even have any communication of acceptance? No, but they don't seem think a judge will require any evidence of agreement before holding you to page after page of "boilerplate" mixed with "gotcha" legalese.
Did they already take your money and give you your product before even showing you a EULA? Yes, but they don't seem think a judge will care about "first sale" doctrine when deciding how valid that EULA is.
Does the EULA offer you any new rights beyond what copyright already allows you to do? Does it offer anything of value in exchange for what they claim you're voluntarily giving away? Usually no, but they don't think judges will bother worrying about "consideration" anyway.
Are they trying to disable the advertised features of their product until and unless you agree to additional terms made after the sale? Yes, but they seem confident that a judge won't invalidate terms agreed to under duress.
And up until now, legal challenges looked like they could go either way. But what if we used a cat? That's foolproof! Surely if a cat clicked the button, no judge would possibly enforce that EULA! That's been clear since Plessy v. Whiskers! Case dismissed!
If you've seen the movie Untracable, this rings a bell. This seems to be working on the idea that the "bad guy" in the movie is infact innocent. Now, I don't know about you, but that's not personally how I feel.
If I manufactured a way to get a cat to fire a gun, aimed the gun at someone (Tab to the ok button), and got the cat to fire the gun, I can't see me being considered innocent, and I certainly don't think I should be considered innocent.
Although, where you draw the line is certainly iffy. I'm not quite sure where I stand on this. The way I see it, either a) People are responsible for what they agree to but don't read. They are lazy, and so get shafted b) Some sort of regulation in what rights people can sign away.
No matter how difficult you make it to accept a EULA, you can't force people to read it, and it's always going to be possible for people to accept without reading. But you can't really ban contracts... Maybe some sort of iffy misinterpretable law about obscuvation of contracts?
-- All your booze are belong to us.
Get a bottle of tequila. Drink at least a quarter of the bottle. Take pictures or a BAC test or get witnesses or something so you can later prove you were hammered. Click "I agree." You can't be bound by a contract you sign while inebriated, so you didn't really agree. Much cheaper than cats in the long run; no need to worry about feeding and cleaning litter boxes and cuddling and such. Plus getting drunk is fun!
What the fuck is this shit? Seriously.
Yeah, I was just about to say the same thing...referring to the 70% of the bullshit that clogs our legal system today.
Oh, and that's Judge Retarded to you mister. Better address him by his proper name. And don't forget his trusty sidekick, Mr. Utterly Common Senseless, Jr., Esquire...
There are plenty of cases in which EULAs have been enforced so you should probably stop spreading this crap. The only portions of them that have been struck down are those provisions that wouldn't be allowed in any contract.
Since he seems to want to own everything that ever was, and ever will be, in the Internet, he might as well have your bloody EULA as well.
It's real easy, just set a fake email account with one of the many aliases that Mark Zuckerberg is known to use, and sign it with that. Note, this list is not exhaustive:
Schroedinger's Brexit: The UK is both in and out of the EU at the same time!
I'm no lawyer, but if you do find you need to defend yourself in court becuase of a broken eula situation and you used your cat, seems like it would be a simple matter for the other side to argue that the cat acted as your agent, making you fully responsible for breaking the thing. So when your cat acts on your behalf heed the James Bond music in the background of your head, laugh, and prepare for the suite, I guess.
Python: 'And then suddenly you have a language which says "we're all stuck with whatever the whiniest coder wants".'
Contracts without signatures are commonplace and legally accepted as enforceable today - I haven't physically signed a contract or agreement for a mobile phone, bank loan, credit card or overdraft in 5 or 6 years, its all been 'I accept' on a web page. Tell the banks that those aren't legally enforcable and you will get laughed at.
However your point that EULA's don't really offer much legal protection or legal weight is still probably valid (IANAL of course).
Actually, you and your cousin Vinny are an example I was going to make here.
If I "encourage" you two to shoot someone, regardless if I'm there or not, does that free me from any criminal responsibility? Nope. I'd be willing to bet that I'd be sitting in jail waiting for my conviction (bah, who needs a trial) on 1st degree murder.
Instead of using you and Vinny, what if I rigged up a shotgun (with a hair trigger, of course), through a pulley, to the cat's collar? At the time an intended victim was in front of the shotgun, I call the cat, and it shoots. I don't think there's a jury in the world that would go for the "Oh no, the cat did it." defense.
I know there's been at least one conviction where a guy set up an "anti-intruder" system at his house. He tied a string to the doorknob, which lead to a shotgun mounted in the hallway. Someone broke in, and was shot (surprise). Through his action or inaction, he caused the final result.
A shrinkwrap/clickthrough agreement is a joke at best. I would be more concerned about being hit by you or Vinny (since I haven't pissed off that many people, I doubt I'm a target yet), than I would be about even hear a word from a lawyer about some shrinkwrap agreement. But you never know, the economy is starting to really suck. Maybe big businesses will start trying to cash in on their shrinkwrap licenses.
Serious? Seriousness is well above my pay grade.
I agree THIS IS MADNESS!
This screams to me about the case, years ago, where someone utilized someone elses AOL account and did malicious things. That someone being a family member who lived in the same house. forget how it turned out.
If they say 'the person is not responsible, it's the cat' then that argument would be used by a lot of people and a lot more people would start to own cats.
This is silly topic.
I do not support "The Man". I also do not support your irrational stupidity
The download begins and I have personally agreed to nothing.
This same strategy could be used with small dogs, children (preferably the neighbors'), or even a carefully crafted button presser that moves up and down as the wind sways a tree outside your window. Mother nature is responsible for the license agreement! I swear!
Who knows how well this might hold up in court, and who cares? EULAs are something of a joke to begin with, as they have no physical signature. Still, if you are worried about legal safety, maybe your cat will be as agreeable as mine.
How about reading the article, that be a good place to start figuring out what the fuck this shit is.
That if you use the software, you're agreeing to the terms of the EULA. So your cat can click all it wants to during the install process, but if you ever use the program, you're agreeing to the terms. It just doesn't prompt you every time you fire it up.
The Cat WILL tread on it at some point.
No need for coercion. Just time.
One could say that the cat doesn't understand the contract, but I haven't read a EULA that most people understand anyway.
Does it make you happy you're so strange?
A cat is property, not an individual. Animal law has been quite unsuccessful in breaking out of that mold.
Really? That's funny, because the proliferation of bullshit services like doggie spas, animal medical insurance(take your "property" for shots lately? shit ain't cheap), and FULL burial services (to include certain not-so-bright individuals willing all their monetary possessions to Fluffy), all kind of make me think otherwise.
If you set up a device to automatically agree to a license without you fully reading it, you've still manifested an intent to accept the terms, whatever they may be.
Looks more to me like you've manifested an intent to defraud, obtaining the use of the software and its benefits without holding up your end of the ELUA's alleged bargain.
Courts have methods for dealing with THAT, too. Starting with holding you to your end of the contract and escalating drastically from there.
Tell them that your cat clicked the agreement on a device you built for the purpose and you're convicted from your own mouth.
(Of course IANAL and the legal system is FULL of surprises, even for people who AAL.)
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
What's this, the "Cat ate my homework" defense?
My school teachers didn't accept that one, and I'd bet the judge won't, either...
Still, pretty funny.
There are three kinds of lies: lies, damned lies, and statistics.
Correct, it doesn't need a signature. However, some proof of a 'meeting of the minds' is required. A click-wrap agreement doesn't necessarily provide this.
In which case the EULA was invalid regardless of whether you clicked it or you coerced the cat into clicking it.
However, assuming it was, if anyone seriously thinks that having the cat click the button would make a blind bit of difference in court, they're an idiot. The law for the most part doesn't operate remotely like a stupidly pedantic Slashdot argument (*), and this *is* the law we're discussing.
IANAL and I don't claim to know exactly why the alleged legal argument behind this device would be thrown out of course, but I'm pretty sure that it would- probably because (as others have suggested) you had deliberate intent to click the button and hence "agree" to the EULA.
(*) Yes, the law can be manipulated by stupid pedantry, but pedantry involving of laws and legal rulings, not stupid pseudo-logical bullshit up-their-own-arse arguments involving sub-intellectual drivel about the free will of animate and inanimate objects, etc.
"Slashdot - News and Chat Sites Deviant". (Click "homepage" link above for details).
I give the lady an A for effort but it won't hold up in court. She will help to line some lawyer's wallet.
The only thing that lines lawyers wallets are bullshit laws. You know, like the ones EULAs are made of.
But, no, it CHOSE to walk over it. Without understanding that this would be agreeing to an EULA.
Just like you agreed to the EULA despite not knowing what the fuck it means.
Not mandatory. Not obligatory. Played out.
Let's run this shit into the ground!
everything in moderation
The cat does not take action without the human intervention. It does not matter the process it still comes down to if the human makes a specific action and it guarantees one particular response than the human made the decision. If the cat has the ability to click no and the same action or sets of action can lead to the cat taking either option then I would say it was not the human's will.
Only slightly better legal advice than "Don't like your girlfriend? Tie the knife to a dachshund and call it an animal attack."
"Anyone who attempts to generate random numbers by deterministic means is living in a state of sin." -- John von Neumann
I'm amazed you got through the lameness filter. However, if I had mod points, you could have them.
Honesty may be the best policy, but by process of elimination, dishonesty is the second best policy.
Click enter with your penis or, so I'm not accused of being an insensitive clod, a stylus gripped betwixt the vulva. Be sure to photograph the event and keep this evidence with your important papers. If your face isn't in the picture be prepared to sign an affidavit that those are your genitalia.
... with your junk. Be sure to bring the matter of how you signed the EULA up at every opportunity. At some point everyone involved is going to want to stop the proceedings out of a desire to be far, far away from you.
If the EULA becomes a problem so that the courts become involved just the submit this evidence during discovery as proof that you did agree to the EULA
The idea is to disgust the opposition until they give up whatever compensation they were looking to get. You might make it not worth it to sue you (and your goodies).
It's a frivolous lawsuit against several software companies. Kind of my point that EULA's and frivolous lawsuit protection have little correlation at all.
Can I use a robot cat?
Well, if your cat agrees to a contract, it doesn't mean you have agreed to it, hence you are not authorized to use the software. The pen on the other hand, has no free will (try disproving that in court),
The court would probably (in more legalistic language) tell you to **** off and stop wasting their time with pseudo-legalistic intellectual wankery that had nothing to do with the case anyway.
so it acts as a medium through which your will is enforced. Please go back to taking a class in critical thinking.
Good luck using that as the basis of a legal argument in court. You're seriously saying that *legally* having the cat click the button instead of the pen would made a difference because the cat had "free will" (despite the fact it doesn't- and never could- understand contracts and arguably has no free will in that respect, and also that the *intent* to get it to do that was yours)?
In fact, it's not just that this is a stupid legal argument. It's that it's a stupid argument full stop for the exact same reasons. "Critical thinking", my arse.
"Slashdot - News and Chat Sites Deviant". (Click "homepage" link above for details).
You don't need to be 'authorized' to use software you bought anymore than you need authorization to eat a pizza you bought.
No, copyright law doesn't stop you. If you have software, you are allowed under the law to make an installed copy of it, and make incidental copies into memory and swap.
EULA originate from before the law allowed that, under the theory that they could impose rules on you in exchange for 'letting' you install and use it. Which shouldn't have been legal, they can't sell you something that's manifestly unsuited for the purposes they sold you it for, and if you refuse to agree to the contract it's completely unsuitable as it deliberately doesn't work at all. If the box says you can use it in a certain way, the software has to be able to do that, or they are in violation of consumer protection laws.
But regardless of whether that logic used to work, it doesn't now, as the law says if I'm have a piece of copyrighted software, I have the right to copy it onto the disk, into memory, into swap, wherever I need to copy it to use the damn thing.
As I don't need their fucking permission to install and use the software, I don't need to agree to the EULA. I can, if I'm stupid, or I can get a cat or minor child to do it. (Or some random person off the street...they are rather unlikely to violate the EULA if they aren't using my computer.) Or edit the installer to not display that box.
And, on top of all that, I have the right to make backup copies, too. (Not 'one' copy, that's a misreading of the law. Any copy I make is legal if it's 'a' backup copy, but that simply means 'a' copy I just made is legal if made for backup purposes, not that I can only make one of them. Each and every copy is legal if it is for the purposes of backup, there's no requirement there be only one.)
If corporations are people, aren't stockholders guilty of slavery?
As has been discussed here very recently, this is yet another case of poorly socialized nerds fantasizing that there is some kind of perfect "legal hack" that will instantaneously invalidate decades of case law. It ain't so.
The "unsecured wireless AP" defense won't work. The "I just put software that I own on a server, I never made copies" defense won't work. The "I didn't do what I was required to do so the EULA doesn't apply to me" defense won't work.
Similarly, the "that bag of cocaine isn't mine, I've never seen it before" defense is continually tested and honed in thousands of jurisdictions around America, but it still doesn't work.
Breakfast served all day!
I am amazed by all the posts complaining that this is "retarded". Guess what, folks... she may not be completely serious.
The same woman also claims that, if you watch the three best Star Wars movies in order, they make a story arc different from what George Lucas had in mind overall.
http://www.ohesso.com/essays/essay004.htm
She also devotes a whole essay to explaining how her friends like to drink beer out of a prosthetic leg.
Next up: Slashdot analyzes the wisdom of Steven Wright to decide which of his suggestions are best not tried out in real life.
P.S. Her funniest essay is "I Like Babies". It's not what you expect... or, if it is, you are very strange.
http://www.ohesso.com/essays/essay002.htm
steveha
lf(1): it's like ls(1) but sorts filenames by extension, tersely
This is just begging to be discussed by the article series featured on Slashdot last week, "You Are Not A Lawyer", which had the stated purpose to "try to disabuse computer scientists and other technically minded people of some commonly held misconceptions about the law (and the legal system).":
http://yro.slashdot.org/article.pl?sid=09/02/10/1749208&from=rss
At the time, the comments were filled with snark about how it is an unfair stereotype that geeks don't understand the law and try to "hack" the law with overly cute tricks. This article is the stereotype.
Experiment:
1. A second cat button is added to allow one to reject the EULA.
2. The cat and the buttons are in a box where no one can see.
3. The monitor is shut off when the EULA is displayed.
4. Box is shaken or otherwise agitated for about a minute.
5. Your monitor is turn on and the software may or may not work. (repeat from step 3 if EULA still displays)
6. Use the software or dont, but we will never know whether the EULA was ever agreed to or not.
Note: this provides working software about half the time. I can show you a complex formula that statistically matches this probability perfectly, but a working model for the underlying reality is out of reach using current scientific understanding.
Usage of the software constitutes acceptance of the EULA. Displaying it during install is a formality. Have your cat, drunk underage neighbor, automated device or whatever click "I Agree" all day long. But as whenever you're using the software, you're agreeing to the terms.
I thought the same thing at first, but then I read the article. I'm pretty sure it's intended to be a joke....besides he tabbed over to the button, and he lured the cat over. I can't imagine this would hold up in court. If the guy who made this "device" is serious, then yes....wtf indeed.
~Lianne
Correct, it doesn't need a signature. However, some proof of a 'meeting of the minds' is required. A click-wrap agreement doesn't necessarily provide this.
Too bad courts disagree with you. And this includes the 7th Circuit, which is one of the most influential courts on economics in the nation.
Fuck the system !
Especially with the lame setup in the article...
Let's see how it works with my kitty. She needs no coercion or cardboard target to agree. She will step on keyboard willingly, as it is between the chair and a favorite window. She could very well be of legal age by now too :) Since she usually comes from the left she may well decide to hit tab first and deny if i have not fed her enough tho.
She also likes to chat in my race lobby and prefers the bumper cam view pointed backwards even tho this a bit rough on us human drivers.....
Do you honestly believe that the "It wasn't me, it was the gloves" defense would hold up in court?!
"If the glove doesn't fit you must acquit"?
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
My cat watched those FBI warnings at the beginning of movies as well.
Posted anonymously of course...
i'm in ur EULA remoovin' ur liability
You can fool some of the people all of the time
Why is it I have mod points when everything good is already at +5, and everything stupid is already at -1, but when something good is at 1 or 2, I don't have mod points? Damn moderation system, why aren't you reading my mind? Slashdot has been around for how long now, and it still doesn't do that one little thing?
Step 1: Build Mind reader
Step 2: Profit!
See how easy that was?
It's a preview for the next season of "The Office." Apparently Angela got a new cat. Hopefully Dwight disposes of it promptly...
I think you're probably right. Still, before stating a legal opinion, you really should state your legal training or (I assume) lack thereof.
Fair enough. I am not a lawyer, but I am a law student who has had Contracts (a did decently in the class). I've never seen case law on the matter, but I remember asking a similar question to my professor about machine-assisted acceptance, and it's really about manifesting the intent to accept the agreement.
Most EULAs start off with language like the following:
YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE. IF YOU DO NOT AGREE, DO NOT INSTALL, COPY, OR USE THE SOFTWARE; YOU MAY RETURN IT TO YOUR PLACE OF PURCHASE FOR A FULL REFUND, IF APPLICABLE.
(Text copied from the Windows XP Home Edition EULA.)
Thus the contract has set forth the method of acceptance. If you perform actions that a rational, objective third-party would assume manifests agreement to these terms, then you have accepted the contract. If your cat-based device -- that you set up -- installs the software for you, that alone probably manifests acceptance (if by a strange, Rube Goldberg-esque manner), because most people, when presented with the facts of cat as property, would say that you "installed" the software.
(Aside: If you use the software after installation, that definitely manifests acceptance, rendering the entire matter moot.)
This is pretty much basic offer and acceptance material.
If it's for-profit but free, you're not the customer -- you're the product (e.g., the Slashdot Beta's "audience").
You don't know what you are talking about. Numerous EULAs have been brought to court and the majority of them have survived just fine.
Your point is very clear - but I could leave my laptop to a shop, a handy cousin or anyone really and they could install and agree to things without my consent.
Not so clear now, I think.
Yes, I should not lend my computer. I should, I should. But when my TV breaks I bring it somewhere to fix. Same with the computer.
Really, it's not that clear-cat.
Dennis Onstenk
So the concept of the EULA (exactly as it exists nowadays) has been challenged and carried through? Where? I'd genuinely like to see it.
Quo usque tandem abutere, Nimbus, patientia nostra?
I suspect that once challenged head-on in court (notice that no corporation is really willing to do that), it'll come apart like a house of tissue paper in hurricane-force winds.
I think the issue with EULAs is that not many people have the money to fight a corporation over them. Over here (not sure if its a UK or EU law) we have some quite specific laws making EULAs unenforceable. I believe its because terms cant be forced on the user after the sale has been made.
I believe that ruling was on whether the act of clicking 'I agree' constitued consent. Click-wrap agreements are often unenfoceable because they contain terms that are either contrary to law or involve giving up rights that cannot be waived in that manner. IANAL
My blog
You may be referring to this case.
"paranoid personality disorder specifically directed at anyone intruding into his home." Heh, yeah, a lot of people suffer from that disorder.
I thought that if you allowed the software to be installed on your machine, you were supposedly responsible for the EULA (whether or not you had actually read the thing).
Which is why, in my early training, I was encouraged to actually let the end user read the license when I installed the software.
Also, if programming a button that your cat can step on to click accept would absolve you of responsibility, then why not just write a randomized script that clicks yes or doesn't?
(Oh, but you'd have to run it until it clicked yes in order to install the software. Just like you'd have to coax the cat to step on the button. So you'd still be responsible for that "random" action, wouldn't you?)
Simple solution: For every piece of software you own, buy the software, then download a copy off the Pirate Bay. Claim you "just like to keep things in their boxes, like comics & stuff".
Now you never read, or agree to any EULA, and since you own the software I'd love to see the look on their lawyers faces if presented with this case :-D
It's stupidity at it's height. Not agreeing to the EULA doesn't put you in a stronger position. Without agreeing to it, you have no right to copy the software, and they'll just sue your ass for copyright infringement.
Wrong wrong wrong wrong wrong.
http://hardware.slashdot.org/comments.pl?sid=1117229&cid=26739771
and it holds up in court. Then they are going to go after you for piracy, because the cat didn't give you permission to use the software.
I'd be willing to bet this article is a joke. Taco, kdawson, timothy and the rest of them had a bet, to see if we'd actually read and discuss the article.
Now they're all sitting around, smoking cigars and belly laughing, contemplating when the circle jerk is going to begin. 'Cos it turns out they win, and we lose.
Shit, I'm embarrased I even clicked on the article. 200 Comments? Christ, we should collectively have a word with ourselves, cos this is ridiculous.
This isn't a story, it's not news, it fuckin retarded, end of...
I believe its because terms cant be forced on the user after the sale has been made.
This, I imagine, is why most boxed software has a sticky label on the flap stating that the product is sold according to the terms and conditions laid down by the EULA and if you don't like it, return the product to your vendor for a refund.
Though it still seems to me rather silly that you can't make an intelligent decision regarding whether or not you like it until you've read the EULA - which means you've got to break the seal, which means your retailer won't take it back....
It most likely was not the cat's idea to go through this exercise.
Strategic placement of food can fix that.
If your cat agrees with the EULA, i guess then you cat may uns the service. No, honestly, this is bullshit. Your cat can not agree to EULAs, because she cant read or understand the contract.
Then only your cat can use the software. You are welcome to use it when YOU accept the EULA, too.
It'll make them laugh at how naive you are... Now where was that link to the "You Are Not a Lawyer!" column?
What the fuck is this shit? Seriously.
Yes, it's BS but so are EULAs. It's bull crap that anyone can write pages of unreadable legal jargon in a tiny font and expect you to be bound by it without even the option of printing it out and showing it to a lawyer. The same with putting up unreadable signs and claiming they have legal meaning, it's bull crap.
Cats agreeing to EULA's is treating these 'legal professional' jokers with the insanity they try to force on the world at large.
Your original post said a click wrap agreement doesn't provide a meeting of the minds. Then you just said clicking "I agree" has been held to be a valid consent. Those two statements contradict each other. And just so you know, "meeting of the minds" is a different issue than a provision that waives a right that cannot be waived.
And by the way, if you are referring to waiving your right to fair use/reverse engineer, well good luck getting that part thrown out. IAALStudent
I wouldn't stick too hard to the signature. Signatures can be forged. The bigger issue might be "contracts where there's no real evidence of who, if anyone, actually agreed to the terms."
The most a software developer can prove-- at least as it seems to me-- is that it's unlikely that the installation progressed without someone clicking on "Agree". But IANAL, and I'm not sure if that would actually mean anything in court. Like what if someone else installs the software on my computer for me? Is he responsible for adhering to the EULA since he clicked "Agree", or am I responsible just for owning the computer it's installed on?
... there was comp.unix.shell usenet group. And there was weekly award for "most useless use of cat(1)". Although it is about unix cat command, not about real furry creatures, this article deserves such award.
There are others but this: http://en.wikipedia.org/wiki/ProCD_v._Zeidenberg is the landmark case. There is also a Gateway case that upheld the EULA.
Here you go:
http://lmgtfy.com/?q=EULA+upheld+in+court
IANAL, but I am a law student. The standard isn't a signature, it's an objectively interpreted manifestation of assent. So yes, by getting your cat to step on the mouse button, you are (yourself) manifesting agreement.
This is not to say that I don't think EULAs suck etc...
IANAL
YANAL
GTFO
If a minor or invalid accepts a EULA doesn't the legal responsibility fall to the legal guardian? Thus applies to pets?
After logging in slashdot still does not take you back to the page you were on. It's been that way for 20 years.
I'm not sure luring can allow free-will. Could the cat then sue for entrapment?
A positive attitude may not solve all your problems, but it will annoy enough people to make it worth the effort.
Bullshit. Nobody has tested the basic assumptions of a EULA, that a contract requires you to know about it before it you can be bound by it.
There's a big difference between a retarded judge who doesn't understand how contracts work and someone actually upholding post-sale contracts. We'll never be free of idiotic rulings, and never be safe from unfair charges, but there's a big difference between that and actual law.
In fact, many of the pro-EULA rulings don't actually hinge on a EULA as many proponents say. MAI corp for instance, is based on a signed agreement to respect any EULAs, not just a EULA. Total difference.
Lawyers just masturbate to the idea of EULAs and other abusive laws.
Citation, please.
"You can either have software quality or you can have pointer arithmetic, but you cannot have both at the same time."
Next, it will be a device allow 3 cats to perform executions.
Sorry but you are wrong. I don't have much else to add. Investigate it on your own.
Well, my understanding of a 'meeting of the minds' is a bit beyond consent. Granted, the only law class I've ever taken was an undergrad course on business law that seemed to concentrate mostly on contracts and liability, but my understanding is that a meeting of the minds is shown when it can be successfully proved that both parties fully understand what they are agreeing to.
Just because you 'consented' to an agreement does not mean that you fully understood the terms of the agreement -- IOW, not just consent but 'informed consent'. Signed contracts have been held null-and-void because one of the signing parties didn't fully understand what he was signing and that could be shown. One of the things that might show that you don't have a meeting of the minds is if you 'signed' away rights that you know that you can't sign away in that manner or that the contract's terms state that the parties are agreeing to something that is illegal. (Note that a contract that contains terms that are illegal can be held null-and-void for other reasons as well.)
You might disagree with my viewing it this way, but my business law professor, who is a lawyer, didn't seem to when I took that stance in a paper I wrote for the class. ;)
My blog
See my above comment and the one below mine and there's more if you scroll down. I'll add this one too: http://www.freedom-to-tinker.com/blog/felten/dmca-ruling-bnetd-case
An anonymous peer-to-peer EULA-accepting client! Maybe it could make screencap vids and records your specifically stating that you DO NOT ACCEPT THE EULA.
"You know you're narcissistic when you quote yourself in your sigs." -- PRoPAiN!
You can always get drunk...most contracts aren't enforceable if one party is incapacitated.
There is no way to prove who hit the OK button or how they did it. If you show a judge that your cat is capable of hitting the button that does not prove that your cat actually did it. This development, unfortunately, changes nothing.
No. It doesn't fix that. You did the strategic placement of the food for the sole purpose of getting the cat to perform the action. It was still your will for the button to be pressed. Not the cats.
yvan eht nioj
YES! Next time someone asks me to install some software I'll have to ask them to supply the booze.
If you are the legal guardian of your kid, you can be held legally responsible for his/her actions.
Same with the cat, presumably.
You can always get drunk...most contracts aren't enforceable if one party is incapacitated.
If you voluntarily incapacitate yourself by getting drunk, you're responsible for any and all contracts you enter into while impaired. See Lucy v. Zehmer, the "heh, sure, I'll sell you my house for $100. I'll even sign a contract. I know you don't have a hundred dollars on you- oh, crap" case.
You'd be much better off to claim that you started the installation then left the room. Evidently, when the agree-to-the-EULA screen came up, the cat chose that moment to walk across the keyboard/mouse/cat-button-device. You didn't know there was a EULA at all, it just installed.
Or better yet, just say you're computer illiterate and you hired a neighborhood kid to install it for you. He must have agreed to the EULA.
> What if someone bypassed the EULA entirely (e.g. hacking the installer so that "I Decline" still continues).
The court simply decides on a common-sense basis whether or not you accepted the law. The crazier the scheme you set up for the sole purpose of avoiding the EULA, the more likely they are to bind you to its terms (even if those terms are absurd). I believe there has already been one case not unlike this where someone was bound to the terms because they should've known about them.
If you really want out of a EULA, at least make your scheme simple and believable. "The kid installed it, and I never saw that EULA!" is probably one of the better ones (contracts by minors are voidable [but not void] unless they're contracting for "essentials" like rent or food or something). But even with that, you're better off to make sure that the kid bought it with his own money, or if it's a computer, that he/she set it up for you.
If you knew or should've known about the EULA, they'll probably enforce it. If it's obvious to them that you're trying to avoid the EULA, they're more likely to punish you by making you abide by it.
What would make this REALLY cool, is if it also gave a cat an electrical shock every once in a while...
Sleep your way to a whiter smile...date a dentist!
This is what puts "tard" in the "freetard".
It's stupidity at it's height. Not agreeing to the EULA doesn't put you in a stronger position. Without agreeing to it, you have no right to copy the software, and they'll just sue your ass for copyright infringement.
Wrong.
The law was changed/amended a while back to allow "incidental" copies to be made that would occur in normal use without needing any extra permission from the copyright holder, other than legitimate purchase. This was mentioned in a post above.
The company in question could attempt to sue for breach of contract or similar civil tort, but not under copyright law under the notion that not agreeing to the EULA makes any copy of data into RAM etc a copyright violation.
Of course, that may have changed as I'm not sure anyone has yet determined what all was slipped into the stimulus package at the last minute. Seeing as how the Democrats are famously in the bag for Hollywood & the RIAA/MPAA, it wouldn't surprise me if they added some kind of last-minute paybacks to these folks. As I understand, the text of the stimulus package was initially placed online in a searchable format and then, realizing their mistake, was quickly format-shifted to a non-searchable text. (.pdf? Not sure.)
Strat
Progressivism (aka US 'Liberalism'): Ideas so good they need a police/surveillance-state to enforce.
IANAL and I don't claim to know exactly why the alleged legal argument behind this device would be thrown out of course, but I'm pretty sure that it would- probably because (as others have suggested) you had deliberate intent to click the button and hence "agree" to the EULA.
Specifically, the legal argument is that the cat is an "instrument" of your will, particularly if you direct and entice the cat to step on the lever. You are therefore responsible for the contract.
It would be an equally stupid argument to claim that you didn't sign the contract, your pen did.
I put a text file at the root directory, reading more or less :
"By actually completing the install process on this computer, you accept to deliver a bug-free software, that will not nag me every 5 minutes with internet connection requests, not hog the cpu and memory and actually provide me with all the benefits you promised in your marketing brochure. This Eula allows you to install ONE (1) copy of your software and supercedes all preceding agreements that might exist between us. Ignorance of the existence of this Eula cannot be used as an argument not to deliver your promised benefits. If you do not accept those conditions, your software must fail to install. Otherwise, you recognize that you accept all those conditions and must perform as promised"
Now I'm covered... 8)
It takes 40+ muscles to frown, but only four to extend your arm and bitchslap the motherfucker
31578.^,opmo,piuhyrsqwz#
(cat walks on keyboard)
Having users sign on the dotted line before they fork over their money is great in theory. Now all you have to do is make sure the language of the contract is something an ordinary adult would understand.
Practically speaking, it's only useful for high-end/high-dollar contracts. Nobody is going to spend the time in the store reading through - or not reading through - and signing a separate agreement for every piece of software they buy. Online users aren't going to put up with that before checkout. Some will say "forget this, I don't need this software" and others will turn to piracy just to save the aggravation.
What America needs are some standardized, common-sense "don't copy this" rules that basically say "treat this like a book, only 1 installed use at a time, and don't share the media or copies of the media with people outside your household/family/business" or something similar that fits in 2 or 3 lines of normal-sized type.
Similar, short-enough-to-understand, clauses should be written for things like "not liable for lost data," "we store information on our servers, and here's how we protect it," etc. for those applications which need them.
Business- and organization-level licenses can be more complicated.
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
A third party may not convey a covered work if you are in an arrangement with said third party to receive stroking, food, or other incentives in exchange for undertaking the activity of conveying.
Definitions:
To "convey" a work means any kind of propagation that enables other parties to make or receive copies. Propagations includes copying, distribution, making available to the public, or building an input device to invoke the help of one or several members of another species to do so.
It runs Linux!
If you voluntarily incapacitate yourself by getting drunk, you're responsible for any and all contracts you enter into while impaired. See Lucy v. Zehmer, the "heh, sure, I'll sell you my house for $100. I'll even sign a contract. I know you don't have a hundred dollars on you- oh, crap" case.
Intoxication was not a significant factor in Lucy v Zehmer. The court did not believe he was actually drunk at the time. The real issue was whether he was actually joking about the intent to sell. They found that he was not joking, and even if he were, his manifest intention was serious and thus his hidden inner motive was irrelevant.
I am a geek attorney, but not your geek attorney unless you've already retained me. This is not legal advice.
So if I hooked up a large pad that was effectively a clicker, and laid it out on my grass. Later when J. Random Dogwalker went by and stopped to let his dog take a dump on my lawn again..
Bullshit. Nobody has tested the basic assumptions of a EULA, that a contract requires you to know about it before it you can be bound by it.
Well, yeah, no one has tested that because it's not a basic assumption of a EULA. You have to hit "I accept", so you expressly affirm knowledge of the contract when you do.
There's a big difference between a retarded judge who doesn't understand how contracts work and someone actually upholding post-sale contracts.
You should probably place an "I am not a lawyer" disclaimer on your post, somewhere near where you say that judges don't understand how contracts work.
You've got to remember, in software, there are two pieces of property: the tangible CD, and the intangible copyright. There are thus two separate contracts - one sale of the tangible CD, and one license of the copyrighted work.
"Encouraging" someone to murder is called conspiracy to murder and it's a different crime from murder.
The other example you give is called manslaughter.
Yes, these are all crimes, but they're all different crimes and are all tried differently!
Click-throughs have little or no legal basis, let alone the ability to hold a conspirator to clicking "OK" accountable.
In the UK, you absolutely cannot enter a contract without it being a fair contract. A fair contract is where both parties have equal opportunity to amend the contract and both have to agree the final terms before jointly signing it. If it's one-sided, "take it or leave it", then it is simply not a contract and has no legal strength.
Does my bum look big in this?
Maybe you should have her sign a contract, first, and see how that holds up.
A post a day keeps productivity at bay.
I vaugly recall a story about a EULA, which in the middle said something like "The first 10 people to actually read this EULA, and send an e-mail to freemoney@example.com before (a few months after the release) will receive $20."... and noone ever claimed it.
Anyone recall it better than me?
More notably, the concept of EULA itself might not stand up in court. If you want a legal tact, I suggest that one. EULAs are unfair and should be attacked at the core (didn't an EU court recently rule that EULAs weren't binding?). You bought the thing, you're installing a copy of your own, and that's that. Done. There are already laws preventing you from redistributing it and the like. No EULA is needed. Does a movie or music album come with such a thing? No. Should software? No.
That argument might be tough depending on where you are in light of ProCD, Inc. v. Zeidenberg , 86 F.ed 1447 (7th Cir., 1996). That court upheld a "shrinkwrap license" (aka EULA), on the grounds that the box notified the user that there was a license which must be agreed to before the product could be used. In other words, it was part of the terms of sale that you would have to accept the license.
The court also noted that warranties shipped in a box, sight unseen, are honored by every state (as opposed to the default UCC warranty when none is expressed), notes that the UCC allows sellers to come up with other terms of contract acceptance other than just buying the box (citing UCC 2-204(1)), and notes that a customer is free to return a product whose terms are unacceptable (with the kind of funny scenario of a box that has a surprise message saying "you now owe us an extra $10,000" which a customer can refuse by returning the product).
Full text of the decision, if you're interested. Courts are very split on whether to follow this decision or not.
If it's for-profit but free, you're not the customer -- you're the product (e.g., the Slashdot Beta's "audience").
Well, if your cat agrees to a contract, it doesn't mean you have agreed to it, hence you are not authorized to use the software. The pen on the other hand, has no free will (try disproving that in court), so it acts as a medium through which your will is enforced. Please go back to taking a class in critical thinking.
Your cat has no more legal free will than your pen does, and cannot consent to a contract. The cat, like your pen, is an instrument of your will, and you are responsible for contracts your pen signs and for EULAs you coax your cat into clicking okay on.
Why the need to even coax the cat? Leave the EULA open with the "i agree" highlighted, and let the cat pounce as usual. Pretty good chance it will hit the space bar. Oops, it was the cat.
It's absolutely idiotic to say "if you don't like the terms, return the software" but then make the manner of knowing what the terms are preclude returning the software.
That is what shouldn't be legal. All EULAs should be provided in outside-the-shrinkwrap envelopes for immediate, pre-purchase perusal.
Cue the resurrection of the fabled "skill testing question" to determine competence to understand a legal agreement.
Parity: What to do when the weekend comes.
Agreed. The device is little different from coaxing the cat into pressing the spacebar.
You don't need to be 'authorized' to use software you bought anymore than you need authorization to eat a pizza you bought.
No, copyright law doesn't stop you. If you have software, you are allowed under the law to make an installed copy of it, and make incidental copies into memory and swap.
No, copyright law does stop you. The reason you can make an installed copy of software is because you're explicitly allowed to under the terms of your license.
When you buy a CD of software, you're purchasing two separate things - a tangible CD, that you have full rights to resell; and a license to the intangible copyrighted work, to make limited reproductions, to "perform" it as necessary to utilize the software, etc. It is possible purchase just one or the other - you can buy the CD and never agree to the license and are thus not legally allowed to copy the software; or you can purchase the software online and never get the CD.
Not absurd at all. Not saying that the EULA is even a VALID contract, but if you don't sign the contract and carry on with the action anyway, it does take effect.
The main example was of a contractor who was offering to do a job for a particular person's house. They looked at the contract but they never got around to signing while the contractor did the work. They refused to pay and he sued. Their defense was that since they never signed they never agreed to anything. Guess what? It didn't hold up and they had to pay anyhow.
Yeah and he wind up losing his house to them as well. Can't remember the case though off the top of my head.
Why is common sense called that if it's not common?
Most EULA's are perfectly valid and enforceable when made part of a contract.
-fb Everything not expressly forbidden is now mandatory.
You mean you aren't already drunk before you get there? Ur doin' it wrong.
Now *that* would be news.
This is different from service animals, how? I'm pretty sure the law would see it that way. If you train an animal to do something for you, it's actually proving intent. Not only did you intend to click that EULA, you spent hours figuring out a way for your cat to click the EULA.
I did. I was told Peak vs MAI was an example of EULAs being upheld. And it thoroughly is not. Anyone who could say that isn't capable of reading at a high-school level. The case was closer to testing automatic acceptance of contract changes similar to how Visa operates than it was to testing hidden contracts.
There's a Gateway case that takes the EULA for granted, but which doesn't seem to actually provide any support for that view.
Can YOU, presumably the lawyer (student?), post a reference to a case that you claim is both valid precedent AND actually supports the idea that a EULA is equivalent to a real contract.
Regardless, it's clear to anyone WITHOUT a legal degree that a EULA isn't a valid contract. You may think otherwise but you probably also think the emperor is beautifully dressed. Even if a judge were to clearly state "EULAs are dandy contracts" that wouldn't change that he'd be wrong. Maybe wrong with the power to sentence you to jail, but that's just like GW Bush - dangerously wrong.
Contracts are already defined as things that require agreement and a meeting of minds. You can't have that in a hidden post-sale contract so you can't have a contract...
"Correct, it doesn't need a signature. However, some proof of a 'meeting of the minds' is required."
This is an easier hurdle than proving that consideration changed hands, when it didn't. It's the main reason EULA's aren't contracts. On the other hand, if you have a contract, you can make acceptance of a given EULA a clause in that contract. The Windows EULA is binding if your business has a contract with a vendor for a site license, and that contract says you accept the EULA.
-fb Everything not expressly forbidden is now mandatory.
I think you missed an episode or two. Angela already has a new cat and Dwight tried to burn the whole building down with it inside. You only have to watch the first few minutes, specifically 2:28-2:58.
Stop Global Warming!
Just say no to irreversible processes!
Not familiar with that case, but I'll (reluctantly) take your word on it. However, the easiest way to cancel a contract is to prove one party was incapacitated (for whatever reason). I find it hard to believe that anybody would be able to prove or disprove anybody "voluntarily" got drunk, so I'm not sure I buy that part of your argument. How can the legal activity of drinking alcohol be held against you? If I get drunk at home, then get solicited by you for something requiring a contract, saying I got "voluntarily drunk" holds no water.
If clicking using a mouse accepts the EULA, and clicking using a cat does, do we have to continue via dog, cow and then horse to see if any finally work?
Agree to these terms?
[No. Take me away.]
[Yes, absolutely.]
[I have no choice but to agree to these draconian terms, so yes.]
And I believe your argument of "booby trapping" something can be turned against you:
The software companies generally booby trap the software agreement, so basically any person will agree to it whether they are in their right mind or if a kid or cat is agreeing to it.
For instance, if I install Windows XP, the only option at one point is to hit F8 to agree to the license. Therefore banging on all devices (including the keyboard) will generally cause the computer to believe that you agreed to the license.
I do not believe a contract that has random scribbles all over it is considered a valid contract.
I still do not believe the EULA has been tested in court in any major country, as all law suits have assumed that it is valid, which might go against my/this argument.
In other news, IANAL.
I worked for an IT department for a while and was often installing software on the employees machine. Installing usually occurred when the employee wasn't working so they were never physically there to agree to the EULA. I mean who then would be responsible. Its my job to install the software so I could be viewed as being forced to agree to the EULA and the person using the computer never sees the EULA. The current contract method shouldn't even stand up in court since no one witnessed you signing it. Maybe they will start forcing you agree to it while send them a record over the internet of you doing it. Making you do it every time the program starts would also help...
Defendantâ(TM)s counsel conceded that Df was not too drunk to make a valid contract.
Also, the defense testified that Lucy tried to get the defendant drunk, but no mention of the defendant getting drunk "voluntarily". The contract held because, after investigation, it was determined that the guy really wasn't drunk, therefore the contract was valid. OH yeah, and I'm obviously NAL, but I can read.
This thought has crossed my mind in the past.
A simpler solution would be to just close your eyes and look away and click like a mad man. "Hey... I didn't knowingly click the accept button on the end-user no rights agreement!"
Informative? Ha, that's funny.
she snarled, hissed, then peed on it
This is an easier hurdle than proving that consideration changed hands, when it didn't. It's the main reason EULA's aren't contracts
Yes. Others in the thread focused on my understanding of consent, but I should have also added this very salient point: If you didn't click the 'I agree' button until after you paid for the software, then there is no consideration. The consideration happened as part of a different agreement, possibly with a third party. This was more true when most retail software purchases were made at brick-and-mortar stores.
These days, however, people are typically downloading software they buy from the Web and are agreeing to the EULAs at the point of purchase (at least with the more legally saavy vendors anwyay). If you agree at that point, then there is definite consideration there.
My blog
Rather than moderate, I'll point out that it was $50,000 rather than $100.
Res publica non dominetur
"Get me a beer" does not mean "drink it for me, too."
Pressing keys with a beer bottle or a pen/pencil as an extension of your hand is a binding action;
inviting a child or other "living extension" to participate is simply a matter of convenience, not
a legal remedy.
There is nothing to FEAR but NOTHING itself; and I fear there is a whole lot of nothing going on. --scorpivs
if it's through a hole in a sheet.
I think you missed last week's episode. Angela has loads of cats, including one for $7000 which she licks.
So your cat agreed to the EULA, and by doing so, gained a license to use the software, for themselves.
So you still have no license to use it...
The fact that the software is now installed on your PC, does not mean it is yours. You might as well torrent it.
Where's the big news?
This is a bit of a double-edged sword. A EULA is a license (that's the L part). If you don't agree to it, then you don't have permission to use the software. So while you may not be subject to the terms of the agreement, the owner of the software can come after you for copyright infringement (i.e. using their work without permission).
Read the ProCD case I cited above.
I wish there were more things that couldn't be in any contract.
Have you seen some of the things in a credit card contract.
-Changing the terms of the agreement as long as they notify you. You're only choice is to cancel the card and pay the balance in full. Instead of okay pay us back (on the original terms) but don't make new purchases. (Otherwise the new terms apply to those new purchases)
-Changing the cost of the agreed upon APR if you make a simple human mistake. Instead of just charging you more for new purchases it applies to your old purchases too.
-Putting things in such a legaleze language that it takes being a lawyer to really understand.
These things and more just shouldn't be done but they are, and with alot more then just credit card agreements. Things no sane person would really agree too. But really how enforceable is that crap if we banded together and fought back?
I know many will say that it's not your money. Which is why I put in the provision "any new purchases".
Jesus Christ. When I say 'People think copyright law says X, but it actually says Y', you'd think people would be smart enough to actually check to see if I'm correct before asserting that, no, it's X.
Title 17, Section 1, 117. Limitations on exclusive rights: Computer programs
(a) Making of Additional Copy or Adaptation by Owner of Copy. - Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or
(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.
Section 106 is the law that creates the exclusive rights of copyright holders to copy their own works, and no one else, and is the entire basis of copyright law. If you break copyright, you're breaking that law, all the other laws are exceptions of that law, making things legal. (Except 106A, which also makes it illegal to misattribute copyrighted works even if you don't copy them, and isn't relevant here.)
So saying 'Notwithstanding the provisions of section 106, it is not an infringement...' means 'Regardless of what the copyright law stated above would appear to say about all copies being illegal unless made by the copyright holder, it's actually not an infringement of copyright law to...'.
Here it is minus some extranous 'or's:
Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make another copy of that computer program provided that such a new copy is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner
It's right there in black and white, unless you think 'Installing software' isn't essential in 'the utilization of software in connection with a machine'.
You have the right to fucking install software that you 'are an owner of the copy of' without any damn 'permission', period, full stop. And make any copies in memory and swap and wherever you need to have the software operate.
If corporations are people, aren't stockholders guilty of slavery?
How does a EULA clickthrough prove I agreed? There is no way of telling who clicked the incredibly stupid button.
When my kids were still kids I always let them install the software. I never saw a EULA.
When my friends buy software and I install it, are they obligated to the terms of the contract they never agreed to and had no idea whatever of?
Free Martian Whores!
Arguing that the cat did it will be about as valid a defense as saying, "My Bic ballpoint pen clicked the button."
The courts won't care what device actually depressed the key, especially since this device was designed specifically to let the cat take the bum rap.
I use irony whenever I can, but my shirts are still wrinkled...
Fully 75% of all comments in this thread make a very, very loud "whooshing" sound. People take themselves WAY too seriously.
I only post comments when someone on the internet is wrong.
US law has similar restrictions on contract validity -- I beileve the term is "contract of adhesion".
But, US courts are, IMHO, often willing to reason backward to get the result they think "reasonable". The idea that shrink-wrap EULA are binding is so commonly asserted - correctly or not - in retail software sales that a court might well feel that it needs to find a justification for this, lest it upend the entire retail software market. If it were me, I personally would cheerfully say "well, you shouldn't have been relying on that mechanism to get what you want, and I'm not going to sign off on it just because you've done it for so long"; but would a court? I don't know.
In short, I know what I think of EULA, but I have no idea what their legal standing would be if fully tested. Nothing would surprise me.
>>>I know there's been at least one conviction where a guy set up an "anti-intruder" system at his house. He tied a string to the doorknob, which lead to a shotgun mounted in the hallway. Someone broke in, and was shot (surprise). Through his action or inaction, he caused the final result.
>>>
Yes. The Supreme Court decided that the Right to Life of the thieves was more important than the Right to Property of the victim trying to protect his stuff. I vehemently disagree. IMHO the thieves forfeit their right to life when they knowingly invade a private home with the intent to steal.
Also the SCOTUS ruling means that, if a thief breaks into my basement safe and accidentally locks himself inside (thereby suffocating), that is somehow my fault and I'm guilty of third-degree murder, because the thief's right to life overrules my attempt to protect my money/will/stocks. I swear the Supremes are out-of-touch with reality.
"I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
The fact that EULAs might be enforceable has no bearing on whether or not software requires an EULA to be installed.
Copyright law says, in Title 17 117, you can install software onto your computer without permission of the copyright owner. Ergo, you don't need to agree to the EULA if you don't want to.
That doesn't mean if you're silly enough to agree to the EULA that you aren't bound by it. (Although contracts need consideration on both sides, and I've never seen an EULA with consideration on the user's side except 'right to install', which they already have and hence is not a 'consideration'.)
If corporations are people, aren't stockholders guilty of slavery?
Further, the remedy of return is nothing but an attempt to conceal odious terms. The contract is already struck and monies paid. Why should a refuser be required to do certain things? They didn't agree to do anything. The return may be inconvenient, and might not be accepted by the store. Many have "no open software" return policies.
It is not as if obtaining proper EULA agreement is difficult or impractical -- just put a tear-off on the product. But publishers are afraid those will reduce sales. Well, they would know. So they sneak around. This should not be rewarded with any kind of legal recognition. IANAL
There is, of course, one major difference between those contracts and a EULA; both parties gain something. With a EULA, you agree to give up some rights, and the other party agrees to nothing.
I am TheRaven on Soylent News
"Just because you 'consented' to an agreement does not mean that you fully understood the terms of the agreement..."
Especially if a EULA is full of legalese. How is the layman suppose to understand that they are agreeing to, I wonder.
The point isn't written vs verbal, it's whether or not it can be proven that an agreement took place. Your "signature" there is your voice print. Note that when you entered into those contracts, you were informed that the conversation was recorded.
In Illinois, if they don't inform you that the conversation is being recorded and you don't agree to be recorded, not only is the contract null and void, but the person doing the recording has committed a felony and mey even go to prison.
The point is that without proof that you entered into a contract, you did in fact NOT enter into one. Your voice proves it was you that agreed, a signature on a written contract proves you agreed, but clicking "I agree" does not prove anything.
Free Martian Whores!
Comment removed based on user account deletion
At least you communicated with their agent (website). They know that somebody, at least pretending to be you, or under the control of a script pretending to be you, sent "I accept." They at least have an apache log that shows something was sent.
Compare that to a shrinkwrap EULA, where nobody knows what, if anything, happened.
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
My cat's name is Eula, so now I'm really confused. This cat and mouse game must stop!
Say hello to my little sig.
But it might work to push the button with your finger and just lie and say your cat jumpped on your keyboard during the installation process, and that you didn't see any eula. I wonder if they would then try to get you for using their software without a license. If they 'make available' *ducks* their own software, is a license implied? Is it ok to assume that reading a webpage with stories on it from a website the author runs is ok? maybe they didn't intend for anyone to see.. How the heck should I know...
...
You want to know what was really retarded? Protools is professional audio software with very tough anti-piracy protection, to the extent that it interferes with performance if you do not set up a dedicated boot partition with specific configurations. In all 5.x versions the EULA was presented in editable format. For every install I just hit select-all and delete, "I agree".
Fail!
War as we knew it was obsolete
Nothing could beat complete denial
- Emily Haines
Erm ... that's not even close to what Lucy was about. Lucy had little to do with intoxication. Straight from the op. Ct., "In was in fact conceded by defendants' counsel in oral argument that under the evidence Zehmer was not too drunk to make a valid contract."
Lucy revolved around whether the contract was valid based on "outward expression" rather than secret intent. Zehmer claimed he was "joking", despite talking for months about it, despite writing it down, despite getting his wife to co-sign it. The Court found that Lucy entered into the contract in good faith. If this contract weren't valid, how could any reasonable person want to enter into a contract ever without mind-reading capabilities?
And that's why Lucy is taught in every contract law intro class.
OTOH, if you say:
"I was never presented with this agreement." What can they do?
Any argument they have can be dealt with "Maybe it was a bug?"
Good luck proving to a jury you make bug free software.
The Kruger Dunning explains most post on
When I installed NT 4, there was a glitch in the install process and the EULA box was empty. I clicked on 'I agree' (to nothing) and the install continued. Some shareware app I installed many years ago tried to load the EULA as I was swapping floppy disks (I thought the installer had crashed - it turns out it was just slow) and an I/O error caused it to only load the first bit of the EULA - it stopped abruptly in the middle of the definitions of terms.
Now, I have no way of proving that either of these happened, but similarly the other party has no way of proving that I did see and agree to the EULAs. I wonder which a court would believe. If I claim never to have seen, and hence agreed to, the EULA, what happens?
I am TheRaven on Soylent News
However, the easiest way to cancel a contract is to prove one party was incapacitated (for whatever reason).
Actually, that's one of the hardest ways to cancel a contract. Courts are incredibly reluctant to let people back out of contracts once they turn sour by claiming they were unable to contract. The burden of proof is going to be a tough one, and there may still be reliance issues: if the other party reasonably believed you weren't incapacitated and entered into the contract justifiably relying on that, you're responsible for their losses.
Rather than moderate, I'll point out that it was $50,000 rather than $100.
(Poetic license for hyperbolic effect, combined with laziness of not wanting to look it up, combined with laziness of not wanting to explain the circumstances and whether $50k was significantly below market rate or not)
I think this is an incredibly great idea in terms of concept. its time we started managing back and not accepting everything... but collectively counter them..
obv there are large reasons why yours is funny and not valueable. They have no way of knowing whether or not the file is there much less whether they agreed to it. Further if they were able to read it you'd probably have a seperate case on your hands against them for 'hacking/snooping' on your computer.
Now if you could find a way to get them to actually do something to sign it that would be brilliant.. perhaps a call in to their techline / conveniant use of their automated responses. this would be quite interesting if there was someway in which you could get them to actually 'accept' it.
problem is getting them to 'do' that. when I install the program the license etc pops up and asks me. While not realistic, i have the opportunity to decline the license and not install. At which point you would try to return the software; likely be told they don't accept returned opened software, and if my understanding is correct you would have to contact the producer to receive a refund.. which is quite obsurd.
"Jazz isn't dead, it just smells funny" ~Frank Zappa
EdelFactor
Not sure what country you're talking about, but in the United States the law specifically says you are legally allowed. 117(a)(1). You can copy from the distribution media to your HD (if that's what you need to do). You can copy from HD to RAM (if that's what you need to do). You can make both of these copies, without any permission or license, and you still have not violated copyright law.
And realistically, before that was passed into law (maybe about twenty or so years ago?) those copies probably would have been Fair Use anyway.
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
With a EULA you gain the right to run the software.
I'm not saying I think they're a good thing, but you're wrong on that point.
Please note that this is Federal law. Several individual states have stricter copyright laws which may supersede the Federal statues, as long as they do not conflict with the Berne Convention. Try talking about moral rights in New York or California and you'll see the problem - there are three sets of laws, with antecedents in two entirely different legal systems (a big chunk of the Berne Convention is based on a French law that predates the idea of copyright) saying subtly contradictory things.
(I am not a lawyer, or an American, but my publisher is the latter and hires the former, so I get to have the fun task of understanding your crazy legal system in my spare time).
I am TheRaven on Soylent News
Reading a public web posting and running somebody's code are different things entirely.
Jesus Christ. When I say 'People think copyright law says X, but it actually says Y', you'd think people would be smart enough to actually check to see if I'm correct before asserting that, no, it's X.
And Jesus Christ, when people say "you're wrong in your interpretation because your premise X is incorrect" they'd normally think you'd not respond by reasserting your conclusion, still based on your incorrect premise.
Though I'm amused by the angry ranting lengths you went to to do so.
Let's try again, and I'll be more explicit:
If you have software, you are allowed under the law...
That first premise - "if you have software" - is the one you're happily skipping over. You still have to get a copy of the software. And as I was trying to point out to you, buying the tangible CD is not the same as purchasing a license for the copyrighted software. They frequently travel together, but they're independent transactions with independent contracts and independent obligations and rights.
You have the right to fucking install software that you 'are an owner of the copy of' without any damn 'permission', period, full stop. And make any copies in memory and swap and wherever you need to have the software operate.
You know, swearing doesn't make that whole "you are an owner of the copy of" bit irrelevant, no matter how hard you try.
That's bullshit. How do the string and shotgun know that I have an intent to steal?
One can legally trespass on property to rescue somebody. One can also legally trespass on property to call emergency services. Perhaps this "thief" were doing one of those? You wouldn't know since he is dead.
Booby-trapping your house is not legal, nor is killing trespassers, and neither of them should be. A thief locking himself in a safe without your knowledge is different from a thief being shot dead from a shotgun set to automatically kill anybody who enters your home.
No existe.
If 1/4 of a standard 750 ml bottle of tequila gets you drunk, you're featherweight.
In the UK, you absolutely cannot enter a contract without it being a fair contract. A fair contract is where both parties have equal opportunity to amend the contract and both have to agree the final terms before jointly signing it. If it's one-sided, "take it or leave it", then it is simply not a contract and has no legal strength.
That's true of English law, but not Scottish law. Scottish law allows contracts one-sided contracts (i.e., does not require consideration from both parties).
Instead of using you and Vinny, what if I rigged up a shotgun (with a hair trigger, of course), through a pulley, to the cat's collar? At the time an intended victim was in front of the shotgun, I call the cat, and it shoots. I don't think there's a jury in the world that would go for the "Oh no, the cat did it." defense.
Of course not. Everyone knows that cats don't come when you call.
Redundancy is good And also good.
You're an idiot if you think having some other person or animal click through the EULA means it's applied to them and not you. No more so than having someone else sign your name on a check at your direction means that person is on the hook for the money.
Actually while there can be conspiracy to murder , if you are considered as acting as my instrument and kill someone on my behalf then I'm guilty of murder.
I knew someone convicted of murder in just such a case. she was found guilty of murder when her boyfriend killed her estranged husband, despite being somewhere else at the time of the killing.
No one has the balls to do that though because they know they'd lose sales.
God spoke to me.
The court, in addition, noted the ability to and "the opportunity to return goods can be important" under the UCC.
So what if there is no means to reasonably return the product? Online downloads, and companies that won't refund your money for purchased software that's been opened.
That case appears to have dealt with some very specific issues, not the idea of the EULA in and of it's self.
Mostly dealing with reselling someone data.
In fact, it hinged on UCC 2-606; which is about inspection, not EULA's.
Wikipedia says this:
The issue presented to the court was whether a shrink wrap license was valid and enforceable.
that's not really correct, it should say:
The issue presented to the court was whether this shrink wrap license was valid and enforceable under these specifications.
The Kruger Dunning explains most post on
I don't have to entice my cat to click anything. She does it all the time on her own.
Damn annoying cats.
No. No. No. No. No.
Encouraging somebody to commit murder--who then acts on the encouragement--is being an accomplice to committing murder. The encourager is just as liable as the killer for murder.
Conspiracy to commit murder is talking (combined with at least one step toward the murder) with one or more people with the purpose of committing murder. No actual killing is required. Conspiracy is often punished more lightly than the actual offense.
That's basic Anglo-Saxon common law.
Take the rest of parent's post with a big grain of salt.
Agreed. Could've at least been a cool platform the cat walks on. A fucking cardboard cutout...bad Slashdot...wasting my time
I believe in the UK you cannot be held legally responsible for anything your cat does. Cats, unlike dogs, are officially considered to be quite beyond the control of a mere human. How would that place this lady legally?
PS : I did enjoy her essay about liking babies.
I was expecting a wire and a microswitch at least, maybe attached to a serial port with a custom driver that sent a fake space keypress back to the operating system :(
Not cardboard over keyboard.
The phrase "I Accept" has become the internationally recognized slang for "GET LOST YOU SLIMY CREEP".
Tell me honestly, have you _ever_ clicked on an "I Accept" button with the intent in your mind to be bound to every term (of which you are lucidly aware) of an EULA?
No. You didn't.
The thought uppermost in you mind at the time of going "Click" was one of...
So that's it. Somebody create an web site explaining what the phrase "I Accept" means. (You can reference several of my posts on slashdot and the like).
Then somebody else can create a Wikipedia entry referencing the other web site.
Wait a few months until it makes it's way into the latest dictionaries and the like.
And there you have it. In court you say, "But didn't you know, the commonly accepted meaning of "I Accept" is "GET LOST", see here in this dictionary of common usage, and I really really did mean that when I clicked on that button.
The reason why booby trapping one's property is prohibited is because it puts EMTs, police, and firefighters at risk if they ever had to break into a house to save the sick SOB that would think of such a stupid thing to do in the first place.
I am becoming gerund, destroyer of verbs.
While that is true, the "kitty" bit does make me think of another important question: what about kids? I don't know how many times my kids have gotten themselves a PC game, even those specifically designed for kids, and the EULA would leave my 40 year old brain hurting trying to understand all the legal bullshit. Which makes me think WHO exactly are these EULAs aimed at? Surely they can't think the kid is going to understand that much bullshit, and I doubt most parents are sitting there by the keyboard when little Billy is installing his Age appropriate game he got to pick himself at the Wally world.
And what about all the legal bullshit in these things? I have a college education and reading some of these things would take several hours going through Groklaw trying to understand the mounds of legal manure they pile in these things. How in the hell is the average Joe going to understand squat with these things so dense?
If the courts are going to rule these things are enforceable then there really ought to be some ground rules written. The language should have to be in clear non legalese that anyone with an average IQ can understand without hiring an attorney. And there should be ZERO EULAs in software marketed to kids IMHO. Frankly the insanity of the language in these EULAs is just beyond most folks comprehension. I have read a few that I bet lawyers would be scratching their heads and getting a headache trying to figure out, so it is no wonder folks just go "clicky clicky, next next next" instead of reading the damned things.
ACs don't waste your time replying, your posts are never seen by me.
Instead of using you and Vinny, what if I rigged up a shotgun (with a hair trigger, of course), through a pulley, to the cat's collar? At the time an intended victim was in front of the shotgun, I call the cat, and it shoots. I don't think there's a jury in the world that would go for the "Oh no, the cat did it." defense.
Yeah and that defense also didn't work when it was the opposite case where the cat rigged a shotgun up to me. Our legal system's bias towards cats is total bullshit!
The enemies of Democracy are
So, I should get my cat drunk before getting it to click on the EULA?
It might get me out of the EULA, but then PETA will be all over my ass.
HA! I just wasted some of your bandwidth with a frivolous sig!
Why cant I just click next when I put a DVD in to watch in stead of having to sit on the "do not pirate" screen. I'd love to have my cat hit next.
Correct, it doesn't need a signature. However, some proof of a 'meeting of the minds' is required. A click-wrap agreement doesn't necessarily provide this.
Too bad courts disagree with you. And this includes the 7th Circuit, which is one of the most influential courts on economics in the nation.
Judging by our nation's economic situation, that should tell you something about how great their "influence" is.
I ahve actually read some of those cases, and none of them are really about the idea of EULA's. Some of the defendents tried to make that a defence, but sinc'e it wasn't at the issue at hand, they didn't really matter.
Take the Blizzard vs. BNet case.
Using someoones hadware or software to reveal information has always been frowned upon. That's why the IBM BIOS had to be broken in a "clean room" environment by people who had never seen it.
SO some EULA'sr parts of EULA can be enforceable.
SO do say a EULA is binding or a EULA isn't binding is like saying contracts are binding or contracts are not binding. Some contractrs are(most probably) some are not.
I could have a line in my software EULA that said you had to only where blue underwear for the rest of your life, and it really wouldn't pass mustard in court.
Of course, many of those case reflect back to the U.C.C.. I wonder what will happen when someone doesn't have the option to take back software? I would wager in that case, the EULA would be tossed out whole cloth. Of course the defendant needs to present that in a trial as a defense to see.
The Kruger Dunning explains most post on
The publisher doesn't know whether the cat clicked agree or disagree. They don't even know if the cat clicked anything at all, or was ever inside the box in the first place.
Even quantum physics is less messy and more intuitive, than the pro-EULA faction's arguments.
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
House owner should have had an ETAA (End-Thief Access Agreement) inside the house.
"Anyone entering this household unlawfully agrees to indemnify the householder against any and all accidents and injuries that may befall the entering person. Entry of house signifies agreement."
they are accepted, but lets see when large scale fraud happens at a real case that tests this specific premise is brought to court.
The Kruger Dunning explains most post on
I think that's called the Reiser defense.
(sorry, it had to be said)
I understand court really isn't the most convenient way, but can't a retailer be legally forced to accept a return on the basis of disagreement with a EULA?
Slashdot social media options: AIM, ICQ, Yahoo, Jabber and Mobile Text. Why no MySpace?
The End User Licensing Agreement is typically an executory contract.
You accept the contract/license when you load the software onto your computer. This is always at the top of the contract. If you understand that much, then you have assented to the rest of the contract.
A person can't successfully argue that they should get out of their mortgage because they didn't really understand the mortgage paperwork. They signed it (they assented), and they're stuck with it.
The same thing applies to the executory contract. If you load the software, you're signifying your acceptance of the contract's terms. You won't later be able to claim that you did not understand those terms.
Think about it for a moment. I make a contract with you, then I have to prove that you understood it? How silly is that?
Seriously, a 2 year old could come up with a better argument.
I think this is the definiton of a slashtard lawyer.
No idea.
But if faced with accepting a refund for a £100 piece of software or going to court and - if losing - setting a huge precedent - which do you think the retailer's going to choose?
I don't think that works if they don't actually let you see those terms and conditions beforehand. A box that says "you have to agree to the included EULA" doesn't exactly tell you WTF the EULA will demand from you and if its terms are acceptable. Since you have no possiblity to reject the EULA without losing money once you open the box it's a bit hard to argue that you really had the option to accept or decline.
Justice is the sheep getting arrested while an impartial judge declares the vote void.
God I hope not!!
I'd wager that sex with most women, especially the first time is with her drunk. When was the last time anyone picked up a chick while out, and got laid, and she was stone cold sober?
Light travels faster than sound. This is why some people appear bright until you hear them speak.........
They why do we have gun laws? Guns don't kill people, just like pens don't sign contracts. People kill people, like people sign contracts. Maybe we need more laws against people and less laws against guns. And nuclear weapons don't kill people either... Only people can kill people.
So why can't I have a nuclear weapon?
If telephones are outlawed, then only outlaws will have telephones.
If you don't agree to the EULA, you don't have a license. Without a license, you are just infringing. This is just stupid.
Mumumu MMMONSTER KILL!
How much is your data worth? Back it up now.
There are plenty of cases in which EULAs have been enforced.
Really? Can you give some examples?
I don't think any of the shrink wrapped software EULA are legal as there is not a two-way agreement before purchase. You are offered no additional value for agreeing to it. And you can't call up Microsoft and say "I don't agree with the EULA, can you come and pick up the the software and give me a refund". You can't even return it to the store, as they have broken shrink wrap policies.
The law has a special rule for software that specifically permits installing it. That's why GPL programs can come without an EULA and you can reject the GPL without being unable to use the software.
Justice is the sheep getting arrested while an impartial judge declares the vote void.
You should probably place an "I am not a lawyer" disclaimer on your post
No, it's implied in that I have a view of law as being something derived from the will of the people and thus limited to the intent of the people, regardless of the words of the corrupt officials.
We wouldn't respect a law that was obviously racist, or such, so obviously personal morals trump the law. Indeed it is widely recognized that we have a duty to NOT follow unjust laws and that doing so is no defense in highest courts of the world.
In that sense, a contract is understood to represent an agreement between two people. No matter how you slice it you can't have an agreement that one party didn't know they were agreeing to.
Any judge who does not understand that obviously does not understand something fairly fundamental. If nothing else, then about the source of their power.
[...] near where you say that judges don't understand how contracts work.
Big difference between all judges in the world, and any specific judge. Do you understand the difference between singular and plural?
You have to hit "I accept", so you expressly affirm knowledge of the contract
Too little, too late. Literally. I require full knowledge of all contractual requirements involved in a transaction before I put out any money.
If they gave you the software box for free, with the idea that it would merely save you the download part of a online purchase, then the EULA inside wouldn't be overridden by the implicit contract of sale which, of course, grants full usage rights. (To the extent of the power of the retailer or the publishers whose agents they act as, to absolve you of any issues.)
There are thus two separate contracts
You on the other hand need the warning 'IANAL - or am a shitty one'.
Multiple pieces and types of property are frequently exchanged in a single contract. Or do you buy each of your groceries separately?
Further, there's a required standard for offering something for sale - namely that you expect it to work as advertised. If two separate rights were involved and you sold it without making this clear, knowing it to be misleading, you would obviously be cheating the customer.
(*) Yes, the law can be manipulated by stupid pedantry, but pedantry involving of laws and legal rulings, not stupid pseudo-logical bullshit up-their-own-arse arguments involving sub-intellectual drivel about the free will of animate and inanimate objects, etc.
That was all implied when you said "pedantic Slashdot argument" but thanks for clarifying all the same. :)
The enemies of Democracy are
Using the cat is way too complicated. By purchasing the software you have the right to use it. Which includes the right to install it on your own c computer. So just read the license, so "no fraking way I agree to that crap!" and click okay.
A click-thru license is a barrier to your existing right of use, and so is invalid. Clicking through is not assent. Ditto for shrink-wrap. Any license that does not present its terms to me BEFORE the sale is bogus. The claim that "you're only buying the right to agree to a license" is bullshit.
Don't blame me, I didn't vote for either of them!
I'm cat, and I'm fouranahalf
A typical bad example. Yes, it revolves around the EULA issue but what everyone misses is that Z knew the contents of the EULA and it had been communicated to him out-of-band as a requirement, after which he made a purchase. While it still superficially appears to validate EULAs, it says nothing about the usual case where someone just buys WinXP/etc from a box on a shelf.
Supporters of EULAs argue that by now we should all expect crippling-EULAs with software and by doing so we know well enough what we're getting into to be bound by any specific abusive nonsense contained.
Which is so obviously self-justifying that it shouldn't really need any refutation.
But don't forget the exception to the rule, where if the other party knows he's joking; then the manifest intention means nothing.
That was the first contracts case I ever read. Sadly, it was also the easiest to understand.
If you can read this, it means that I bothered to log in.
So let's see how this logically works. You admit someone 'buys the tangible CD'. If something is bought, it is owned by the person who bought it. (That's what bought means.) So the person owns a 'tangible CD', correct?
Definition in copyright law:
"Copies" are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.
A work is "fixed" in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.
A CD is a material object. The work can be both perceived, by running the program and simply by looking at files, and reproduced by copying it, both with the aid of a machine called a computer. The work is fixed onto the CD because the CD lasts long enough for you to repeatedly read it. (I haven't defined 'computer program', but if you attempt to redefine copyright law on that one, you'll end up with no copyright on computer programs at all.)
So a CD with a computer program on it is 'a copy of a computer program'.
So someone who owns a tangible CD does 'own a copy of the computer program'.
See, the problem is, you're right in that there's a difference between owning software and owning a copy of the software. You don't have the right to do whatever you want if you just own a copy, and that's exactly what you're trying to say. It's 100% exactly correct.
The problem is that law, in addition to granting right to the 'owner of the software program', explicitly says what 'owners of a copy of the software program' are able do without violating copyright, so you're now trying to invent an imaginary third category that is 'owner of a copy' without actually falling under the law that says what an 'owner of the copy' can do.
I'd actually be rather interesting in finding out exactly who you think 'the owner of a copy of a computer program' would be. It can't possibly be the copyright holder, they don't need an exception under copyright law to make a copy. So who is it?
If corporations are people, aren't stockholders guilty of slavery?
They sue you - as head of household - the owner of record.
The guy whose credit card took the $1500 hit from Dell. The guy who signed for the system when it was delivered.
The judge and jury doesn't have to believe you or your kid every time it becomes convenient to pass the buck.
I regularly use software with EULAs to which somebody else has agreed.
Does that mean I would be eligable to sue the company for something which the EULA-clicker supposedly no longer has the right to do?
And does it make a difference as to who owns the hardware? (i.e. sysadmin agreeing on a university computer, compared to a cat agreeing to something running on my hardware).
We wouldn't respect a law that was obviously racist, or such, so obviously personal morals trump the law.
Now, we wouldn't, but for a hundred years we had no problem with it. There are many laws now that are discriminatory that we have no problem with. This point doesn't represent reality.
In that sense, a contract is understood to represent an agreement between two people. No matter how you slice it you can't have an agreement that one party didn't know they were agreeing to.
Any judge who does not understand that obviously does not understand something fairly fundamental. If nothing else, then about the source of their power.
That sure is a broad claim to make, particularly when you acknowledge that both parties did know:
You have to hit "I accept", so you expressly affirm knowledge of the contract
Too little, too late.
But, let's continue:
Literally. I require full knowledge of all contractual requirements involved in a transaction before I put out any money.
The law doesn't. I don't believe there's any requirement that both parties to one contract have to have full knowledge of all transactions they will enter into at any future time.
If they gave you the software box for free, with the idea that it would merely save you the download part of a online purchase, then the EULA inside wouldn't be overridden by the implicit contract of sale which, of course, grants full usage rights.
No, it doesn't, under any understanding except your own. The sale contract does not, "of course", grant full usage rights. You buy a CD - can you install that software on every computer you own, your friends' computers, your neighbors' computers, etc? You buy a music CD - can you broadcast it, or play it in your nightclub?
No. You're wrong, and your post shows a complete misunderstanding of copyright.
Multiple pieces and types of property are frequently exchanged in a single contract. Or do you buy each of your groceries separately?
If I buy ten items from my grocer and one turns out to be rotten, I am able to exercise my warranty rights for that item alone while leaving the other contracts fulfilled and valid.
Look, I don't want to waste any more time with this, because frankly, it's getting boring. There are two types of property involved, tangible and intangible, and each has different rights. You have full rights to the tangible property because after purchase, the prior owner's rights are fully extinguished. You do not have full rights to the intangible property because after purchase, the prior owner's rights are not fully extinguished.
Everybody here, EVERYBODY, has done something 'illegal' with their computer at some point. Chances are, everybody in the West with a computer is a criminal.
It might even be safe to say that everybody in the West is a criminal, computer or no.
When a society gets to that point, certain events are generally predicted.
And hey, we're seeing them.
But that's okay. When the smoke fades and the dust settles, I believe we're due for the invention of warp drive.
-FL
most local/state/regional buyer's remorse laws supercede a company's return policy.
...
And as I was trying to point out to you, buying the tangible CD is not the same as purchasing a license for the copyrighted software. They frequently travel together, but they're independent transactions with independent contracts and independent obligations and rights.
When I walk into a store, find a game on the shelf, pull it down, and buy it, what did I buy? If I bought a CD with no license, then I can't run it no matter what I do. If I bought a license, then, under terms of sale, I bought a license without restrictions. How do I know it is without restrictions? Because they completed the sale without making any restrictions a condition of sale. If I open it up and there's a wrapper on the disk that says "you must agree to the TOS before you can use this" it isn't a condition of sale, isn't a condition of use, isn't a copyright restriction, and isn't involved in a license. A license is a contract. The *only* entity I dealt with that is capable of entering into a contract is the person I bought it from, and they didn't enter into any contract with me outside the sale. The software is free to assert some contract, and I'm free to decline the EULA and run the software anyway. If that's not the case, please let me know what I'm wrong about. The law (Title 17, Section 1, 117) is on my side for what I can do with a purchased CD. I decline all "licensing" and run my CDs under that federal law.
Learn to love Alaska
If someone else signs your name on a check you aren't liable for you, you loon. It would be entirely possible to have a check reversed on the grounds you had someone else sign it.
Unfortunately, if you try to get out of paying it by claiming you got someone else to sign it, you a) just admitted to committing fraud while purchasing whatever without intending to pay for it, and b) admitted to the entirely different crime of check fraud on your bank. Oh, and conspiracy to do those two things, too.
And, on top of all that, you still would have to pay for whatever, so you'd have to write another check. Actually, they'd probably demand cash.
So, it's not a very popular means of writing checks, consisting as it does of four counts of fraud and four counts of conspiracy shared between two people. And in the end wouldn't work.
As to how all this relates to the EULA: It doesn't. Installing software without agreeing to the EULA is not a violation of copyright law, and has not been for some years. Someone else agreeing to the terms does, indeed, put them on the hook, or not if they're a minor.
If corporations are people, aren't stockholders guilty of slavery?
Why can your kids install any software would be a better question...
With a EULA you gain the right to run the software.
According to law, I gain that right when I pay them for it in good faith. A EULA then removes my rights and gives me nothing in return.
Learn to love Alaska
I guess it's better to get your cat drunk and then make it use the device - let the lawyers earn their money
Of course a contract is not enforceable against you if you didn't agree to the terms. That is the case with ANY contract, not just EULAs. So no, ProCD is not a bad example.
And what you claim to be the usual case is actually not. When you install software you ALWAYS have to check the I AGREE box. You should read the Netscape case where the users didn't have to agree before installing. The defendants won that one. And if you want to claim something about the terms not being on the outside of the box, well then I suggest you read the ProCD case in its entirety and not just the wikipedia summary.
Please don't ever breed. The world doesn't need anyone else as stupid as you.
That first premise - "if you have software" - is the one you're happily skipping over.
No, he's not. You're just too stupid to understand his point.
You still have to get a copy of the software.
Which, as he said, he's already done - by purchasing it.
buying the tangible CD is not the same as purchasing a license for the copyrighted software.
WHY DO YOU NEED A LICENSE? If you've bought the software (on a CD) you've bought it. You don't need a license to use it anymore than you need a license to listen to a CD you bought, or to read a book that you bought.
I'm amazed that someone as stupid as you has managed to turn on his computer, let alone type in that post. Who's helping you?
Are these "plenty of cases which EULAs have been enforced" really cases where the judge ruled them to be enforceable?
Or maybe one party folded to save themselves from the attorney costs? Or even settled outside of court?
Last I checked, when I go down to the local software vendor and buy a piece of software. My contractual obligation for gaining ownership of the property is between myself and the agent of the merchant selling me the product.
At no point do I have any dealings with the manufacturer (unless the merchant is the manufacturer). Moreover, at no point does the merchant or it's agent make any mention of any EULA's that must be agreed to prior to the conclusion of our contractual agreement of exchange of goods in compensation for money.
The merchant and/or it's agent are agreeing to sell me the product, and it's contents, including what is contained within, to me. The ONLY limitations on my purchase are that they require an equitable exchange in money, and maybe agreement to adhere to a return policy (if they have one).
Those are the only limitations and agreements placed upon my purchase. In contract law, in order for a contractual agreement to be binding, there must be "consideration". Or an equitable exchange.
The "consideration" is that the merchant gets my money and I get the goods. AT THAT POINT I OWN THE GOODS. THEY ARE MY PROPERTY (within copyright limitations). So what "consideration" would the EULA owner be "offering" me? At this point I already own the contents. It is too late to include a limitation on my ownership and use after the fact.
I already own the contents of the product at this point, so any additional licensing inside the box is irrelevant.
In order for the licensing in the box to be binding, I must first agree to it PRIOR to conclusion of the contract. Since the merchant never mentioned, included or stipulated agreement to the EULA, I am not bound by it.
This is the equivalent of buying a car 100% cash down and signing the papers. And after you sign the papers and get in the car to drive home, the dealer comes out and tells you that before you leave the lot, you have to agree to sign some other contract saying that you'll do some other thing for the privilege of driving the car. The car that you already bought and paid for.
In REAL business, contracts are presented up front, BEFORE the contractual agreement is concluded. (Money exchanges hands).
Any large business would laugh at you and then sue the crap out of you if you tried to throw in an additional contract and force them to agree to it AFTER you already sold them the product and received money for it.
If you have no cat, I would recommend creating a contraption involving Lego Mindstorms and a Camera. You press a button, and the contraption rolls a pair of dice five times. If it ever rolls an even number, it presses the "accept" button. (Statistical probability is in your favor.) Furthermore, program it to recognize a EULA window so it starts automatically when one comes up.
I'd love to see the case of "Sony Corp. vs FATE".
And, if they weren't fair use, if you weren't legally allowed to use the software without their additional permission, then selling you the software was consumer fraud.
I can't sell you a car, and then refuse to give you a key to that car and try to sell you one. A car's purpose is to drive, it was demonstrated as if it could drive, and if I know it cannot drive in the state it is sold in, without the key, I have committed fraud by representing it as such. I can't cleverly motion at the car over there as what I'm selling you, while hiding the key in my pocket.
If someone buys a 'word processor' but instead gets only a program that prompts him to agree to give away random legal rights in return for said word processor, well, that software is 'unfit for the purpose sold' and is outright fraud. An EULA box is not a 'word processor' in anyone's dictionary. (Unless, heh, it's editable.)
You can sell someone half a product, or a product that is completely useless without an additional product. But you can't represent it as anything but that at the time of sale, even by implication. If you're calling something 'an X', it has to be able to do the things people expect 'an X' to do, and not require additional things to make it work. You want to sell things 'as is', you have to sell them 'as is'.
Ironically, the fact that they claim to 'give you something', the ability to install the software, which is required for a 'contract' to take place, (Consideration on each side.) exactly backfires for them here. I.e, if copyright law and contract law combined made EULAs legally required for the user to agree to, that magically makes the thing a violation of consumer protection laws that don't let companies sell products that don't work for the stated purposes.
If corporations are people, aren't stockholders guilty of slavery?
Just sprinkle catnip on the input device.
I bet she's disabling the device at other times making it not-so-random.
Engineering is the art of compromise.
now they will start to put captchas on EULA to make sure a cat or robot (I am sure some Slashdot readers know how to build a robot to push the OK button) doesn't just press the button and a person able to type the captcha and then press the OK button.
I am sure that parents will ask their child to come over and click the "OK" or "I AGREE" button because a contract is not valid if a minor signs it.
Remember, Slashdot does not have a -1 disagree moderation, and no, troll, flamebait, and overrated are not substitutes.
If you configured it to never send any completed file (although file fragments would work), did you actually upload a copyrighted work?
Not that I'd care to try it myself, but it's something I've wondered.
I suppose it's still "contributing" one way or the other?
I would challenge you to find a "Buyer's Remorse" law that applied to retail sales of a single payment. Those laws generally only apply to contracts, or in some cases sales where the buyer was solicited rather than sought out the purchase. I can't find a single would that would apply to buying Microsoft Office at Best Buy (for example) and I don't think you can either.
Well, my religion (Kilgore Troutism) specifically prohibits me from entering into agreements, and Bingo Himself tells us (in the marvelous Sermon From The Bar At The End Of The Universe) that "whosever entereth into one, yea, it shall be as if a sword were held to his child's head". So I'm pretty sure that I can get away with it. And, if I can't, I can always go into a deranged religious kill-frenzy. So using a cat would be overkill.
IAAL and that is not even close to correct.
The essence of a contract is the meeting of the minds between the parties. If you are too drunk to know what you are doing, it is impossible for there to be such a meeting of the minds. The cause of your intoxication is completely irrelevant - contract law is not in any sense about punishing parties for reckless conduct, only about holding them to terms they voluntarily and intentionally agree to.
On the other hand it is increasingly correct to say that if you deliberately get drunk you may have tortious or criminal liability for anything you do. There has been a gradual erosion of the ability of parties to use the 'drunk's defence' to escape liability for wrongs.
Time to go and read that YANAL blog from the other day, I think...
Read Pynchon.
In the ProCD v. Zeidenberg case, the court ruled in favor of the EULA, but said that the ability and opportunity to return goods was important under the Uniform Commercial Code used for the decision.
They'd be on much shakier ground if they didn't let you return the software. That said, you'd have to try to return the software and be denied refund, perhaps even by the software company themselves, before you'd have a case.
I completely agree with you on the EULA outside box idea.
I'm pretty sure that actually IS the case, at least here in Australia - if you can't read it before opening the packaging, then opening the packaging cannot prevent you from returning the software.
Read Pynchon.
That issue is a bit of a strawman. The question is not whether a EULA is enforcable once you have agreed to it, it's a contract. The question is whether you need to agree to a EULA to have fair use rights to a copy you have legally acquired.
The obvious answer is no, its simply a matter of how to use the material without agreeing to the EULA contract or forfeiting your fair use rights to material acquired by you legally through a path of authorized distribution.
This cat thing seems like a good idea. A cat can't enter a contract and the contract goes away allowing you to utilize material you don't need said contract to have the right to utilize.
When was the last time anyone picked up a chick while out, and got laid, and she was stone cold sober?
You do realize this is Slashdot right?
IANAL But AFAIK both parties must understand what they are agreeing to in order for the agreement to be legally binding. That is why on most important contracts you are required to initial each page and the part you sign also states that by signing you are saying you understand the agreement.
That is also why a child, the mentally incapacitated, and the drunk can not enter into a binding agreement. They are assumed to be incapable of understanding the agreement they are entering. Simply understanding that they are entering into an agreement is not enough.
Clicking "I Agree" is your acceptance of the EULA, not loading the software. It doesn't matter what the EULA says, including when it says it applies, if you never agree to it in the first place. If you do not accept the EULA, and then subsequently load the software then you are left with a legally obtained and distributed copy that was produced with the authorization of the copyright holder and your fair use rights. None of the benefits or the problems with the EULA would then apply.
I feel compelled to chime in here.
I seem to recall some installations where simply holding down the spacebar during install is enough to move on through the dialogs without having to do any mousing at all.
And sure, fine, at some point someone apparently clicked I AGREE. However:
Has there even been any agreement? Is it clear and provable in *any* explicit way that the I AGREE button was indeed clicked?
Who exactly has agreed? Is it clear in *any* explicit way *who* the parties to this supposed contract actually are?
What exactly has been agreed to? Is it clear in *any* explicit way that *both* parties actually have agreed to anything?
Again, what exactly has been agreed to? Is it clear in *any* explicit way that *both* parties *understand* what it is that they are ostensibly agreeing to?
Sure, there have been numerous court cases dealing tangentially with the issue of EULAs, and touching upon various aspects of EULAs. However, given the very real and extremely huge holes of as-yet-untried questionables regarding the legal standing of EULAs, it is disingenuous to say either 1) that EULAs are indeed wholly legally binding, or 2) that EULAs are indeed wholly not legally binding. The true nuts and bolts of EULAs, as they pertain in their entirety to general contract law, not just as they pertain in part to specific aspects of specific cases, have not yet been tested in court.
"What in the name of Fats Waller is that?"
"A four-foot prune."
I had a computer of my own to install programs on at 14. I don't see that as anything unusual in the least.
It is pitch black. You are likely to be eaten by a grue.
There was a lawsuit about this already, if I recall.
The issue here is the first sale doctrine, which essentially says that once the initial transaction has been completed, the terms cannot be changed without your consent.
Since you bought the software before viewing (let alone agreeing to) the licensing terms, you can not be forcibly prevented from using the software if you don't agree to additional terms presented after the fact.
HOWEVER, some software (like all MS software) says ON THE BOX that there are significant terms and conditions of use that you must agree to before you will be allowed to use the software, but that you may receive a full refund if you do not agree to them.
The lawsuit was regarding a copy of Windows preinstalled on a Dell PC, so this part wasn't part of the lawsuit. It is arguable that this notice would be sufficient.
Certainly, if it were not sufficient, Microsoft could mandate that stores keep copies of the EULA available as part of the retail sales display, and the box could inform customers that they must agree to the terms & conditions prior to use. That would almost certainly be acceptable, at least insofar as first-sale is concerned.
At least according to my untrained understanding of the legal issues...
wait, I missed something.
The result of the lawsuit was that Microsoft (or Dell, I forget which, now) was required to allow a user that didn't agree to the EULA for pre-installed windows to be able to "return" the copy of windows for a refund.
(under acceptable circumstances (see endless debate of acceptable above)) EULAS are contracts between you, and the company that makes the software. Therefore they have the software act as an agent on their behalf. I'd like to see someone modify the text that they see in the EULA and propose the modified contract to the company, by pressing "i agree". If the software, acting on the companies behalf, also agrees and continues the installation, does this mean that the company has agreed to the contract?
I'd like to see a case under these circumstances in court - either the EULA is a contract, with the software operating on the companies behalf, or it is not. If the software agrees to a modified eula, it should be just as binding to both parties as if both parties agree to a non-modified one.
She can pretend to be drunk when signing the contract, too.
If you must moderate, please moderate as irrelevent, not something bad, because I'm sure someone will find this interest
IIRC, in the ProCD case the software was purchased directly from the manufacturer. Probably the same with the Gateway case. Thus the analogy to an insurance purchase where the full terms are mailed later was appropriate. Add a third party distributor into the mix, and I think it's a more difficult case to make.
I'll sell you my house if you are too lazy to count the zero's on the contract. I'll put a few extra in for good measure.
If you must moderate, please moderate as irrelevent, not something bad, because I'm sure someone will find this interest
sgm,jty?_+;'pusy6a1
( My cat )
pusy? hmmmmm
Bitcoin pyramid: Join here: http://www.bitcoinpyramid.com/r/1427 it's FREE!
Um, no. In all of these cases, you've created a situation where you intend that an on-screen button will be pressed on your behalf. And, you've gone to extremely elaborate lengths to do so. The more elaborate and carefully reasoned the setup, the clearer it becomes that you are deliberately causing the button to be pressed.
And all of this for nothing. Because, suppose if we granted your argument that you did not agree to the terms of the EULA, but rather, it was a random accident, causally unrelated to anything you did, that the "Accept" button got clicked. Well, in that case, you don't have permission to use that copy of the software. So if your argument was right, you'd have gone to extreme lengths to achieve exactly nothing.
Are you adequate?
That's hardly good advice, stewbacca: DustyShadow's mother did that once, and the rest of us have been suffering ever since.
Mine had a Genesis at 2 and had their own PC at 5. I of course didn't let them loose on the net, but the eye/hand coordination, the typing skills, and the inquisitive nature of figuring out "how that works" has served them well in life. The oldest wants to be a doctor, while the youngest wants to do digital design work, like graphic art for posters and the like. So I think exposing them to technology has helped them a LOT more than just letting them veg in front of the tube like so many parents have.
I taught them to ask questions, use multiple search engines to find answers, explained how the game on the screen came to be through the use of things like WAD(remember those?) files and scripts. How to always look for .edu and peer reviewed journals for primary sources, how the Internet works, how routing looks for the shortest path, etc. So I have a feeling that whatever fields they choose to go into the lessons I taught them about thinking for themselves and looking for answers instead of giving up will help them through the journey we call life.
Of course I still get to hear the "dinosaur" jokes about my VIC20 and how we played games like the Atari VCS, but I think there is a gene that causes all teenagers to look at us as old farts. Of course I have to bite my tounge when all the girls are falling over the oldest for his "super cool retro" clothes like my 80s tour shirts and my Judas Priest Screaming for Vengeance satin jacket. I SO want to scream "He isn't retro! He just stole all my clothes!". And damned if you wouldn't know it, but they all fit him better than they ever did me. Twerp.
ACs don't waste your time replying, your posts are never seen by me.
Well since EULAs have no legal standing whatsoever within the realm of my own property, I don't really need to buy a cat for software I install on my own machine.
Hack the installer such that you do not need to agree to the EULA to install the software. There is no license agreement to run the installer, so you have not violated any EULAs. Also, as your hacking did not remove any device (or code) which prevents illegal distribution, you have not violated the DMCA.
it is only after a long journey that you know the strength of the horse.
It's instructive to pause and think a bit about why those defenses don't work. It largely comes down to the following: the legal system is designed to deal with unforeseen circumstances in a case-by-case manner as they arise, and adjudicate them according to some good general rules of thumb that have been passed down from previous cases that are analogous to the present one. This is very much unlike software, where the machine, confronted with a circumstance the programmer did not anticipate, will blindly and unreflectively apply the rules it's been given, in a completely literal fashion.
Are you adequate?
but I haven't got a cat.
It is if you can reasonably claim that you didn't KNOW there was a EULA. That's the problem with EULAs... they assume that I saw it. If I let my neighborhood kid install my software and I'm NOT THERE when he does it, I can reasonably claim that I had no idea there was a EULA at all.
If you want to claim that doesn't matter, congratulations, you just agreed to a legally binding contract by reading this post. My representatives will be at your house (with a truck) in a day or two.
Depends on how enlightened the court is.
It's best to have some witnesses on your side. Go hang out with your friend in your neighborhood bar where you know the bartender while the kid is installing software on your computer.
Let's grant that this works, for the sake of argument. The company is taking action against you in a court, you argue that you did not agree to the EULA on these grounds, and your argument is accepted. What comes next?
Well, this case is analogous to you taking some goods or service from somebody on the mistaken belief that they were giving it away for free. If all parties agree that you mistakenly and reasonably believed the goods or servie was being given away, all that shows is that you didn't steal (since you had no mens rea). You still did take something from them without their permission, and may still be liable for that. Probable outcome: you return the goods, or pay them for the service, and the matter is dropped.
So in the case where your EULA argument somehow worked, the best you could get away with is the vendor agreeing to drop the matter if you surrender all of your copies of their software.
Are you adequate?
An incompetent person cannot contract. The incompetent person must be able to prove their incompetence, though (usually with the help of a guardian and a lawyer). Incompetence is a defense--a person trying to prove a contract is not required to prove that the other party contracting was incompetent. The reason for this is probably practical--putting the burden of proving competence/incompentence is best placed on the party with the best access to the proof.
Am I getting you right? You're saying that if you click "I agree" when you really (in your own mind) "don't agree to it in the first place", then you don't have a contract? That's like crossing your fingers behind your back--an incompetent person can get away with that, but not a competent one.
Thanks for correcting me about the EULA.
Regardless of who or what clicks "I Agree", the first paragraph of most EULA's happen to state that by using the software you agree to the EULA. I would be willing to bet courts would find you have agreed to the EULA by using the software when the EULA says you agree to it by using the software.
not rational autonomy
Otherwise, if you're willing to click through it (or get your cat to click through it on your behalf) then it doesn't bother you all that much.
The big advantage of a dial-up connection is the agree button lights up before the contract text is displayed.
Extending this idea just a little bit further, suppose your kid installs a piece of software specifically designed to detect the presentation of EULA's and automatically agree to them...
...and officialy its presented as a firefox popup blocker plugin and actualy serves that purpose, is open source, and written and distributed by people in a far-away land where U.S. laws cannot touch them... with no mention at all about this other "bonus" feature, which is simply kept "secret"
"His name was James Damore."
Why go with something with a brain? Try using a Robot to move the mouse around and click at random (like a drunkard's walk.) If it should happen to click on the Okay button on the EULA, well, the robot did it!
IAAL and that is not even close to correct.
Yeah, those Restatement authors have no idea what they're talking about.
You may be a lawyer, but you're about a hundred years out of date. Are you an American lawyer or are you in some other jurisdiction?
Time to go and read that YANAL blog from the other day, I think...
... yeah, and while we're add it, we should also talk about lawyers who advise that where the other party reasonably does not suspect, that voluntary intoxication somehow makes a contract voidable. But I guess that would be too embarrassing for some people.
My cat just upchucked a hairball on the keyboard and walked away.
Have gnu, will travel.
This is kind of cute, but not really...
The person shows the elaborate process they go through to get the key pressed. I mean, if you were a paraplegic typing with a pencil stuck up your nose - you're still hitting the key. Or is the pen hitting the key? What if you white out just the key you need to hit so you can claim you knowingly hit it, but it wasn't marked.
I mean, cummon. This isn't worthy of slashdot. This is really lame.
Ace
That mental image will amuse me for a while.
"Hello 911? I just tried to toast some bread, and the toaster grew an arm and stabbed me in the face!"
I'm not trying to be tricky, but if someone asks a legal question on Slashdot about some true-to-life situation, people offer advice, but it generally comes down to "We are not lawyers, so don't try to act like one".
I find that sound advice.
And then, people are expected to react to EULAs and understand the legal ramifications (which they cannot possibly do) and a simple clicking of "I AGREE" is a commonplace thing to do, and I've never heard anyone seriously suggest that you should take the EULA to a lawyer to fully understand it.
Something strikes me as wrong about that those situations, but I can't articulate exactly what.
DEFIANTLY
Oh, you're right, but you're arguing from the wrong direction. Don't fall into the idea that there is such thing as a 'software license'.
<explanation>When you buy a copy of a computer program, those things they sell at a store on the shelves, that is what you have purchased...a copy of a computer program, as defined by copyright law. Usually a copyrighted computer program.
With that copy of a computer program, according to copyright law, you do not have the right to copy (or alter) it except on your own computer as necessary for your own use. (There are other things that it is illegal to do with it, such as kill people. Check your local laws.)
It was a normal purchase of goods that are slightly restricted by the government, like when you buy a shotgun you might not be allowed to fire it within city limits unless your life is in danger, or to shorten the barrel.</explanation>
At on point in that explanation did I utter the word 'license', and that is because there is no 'license' relevant to this, just like there is no 'elephant' relevant to this. The whole concept is entirely unrelated.
Now, this box may also come with something asserting more, or less, abilities than allowed by copyright law, just like your shotgun might come with some special permission to saw off the barrel if you pay the police some money and get a permit. (Unlikely, but possible.)
You can call this a 'software license' if you want. Although in actuality copyright 'licenses' are something else that companies that do to gain use of a copyright for a time, link companies that produce toys based on TV shows, and this thing would be more correctly called a general 'contract'. You are not 'licensing' the software in any meaningful sense of 'licensing'.
But you can agree to the terms if you want. Or not. Whatever you want to do.
While this contract, if agreed to, might alter your ability to use the copy of the computer program you purchased, feel free to completely ignore said contract and use the program however you want to within the law. Note the law grants you the right to copy and alter the program as long as such copies and alterations are in order to use the program, so you might wish to alter the install process so you can get past a weird screen talking about a contract you're not interested in.
If corporations are people, aren't stockholders guilty of slavery?
I'm in another (common law) jurisdiction, but I'd be curious to see any case which says that a person who lacks the mental capacity to contract is bound by reason of the "voluntariness" of that state.
So you're just slipping in a crucial addition there (in bold) and then saying I'm wrong in relation to a different proposition? Bravo! You have truly shown me the error in my original statement.
Read Pynchon.
I used to do sysadmin work for a law firm, some of it when I was a minor. Out of an abundance of caution, I asked about accepting EULAs when prompted by patches and service packs, and was told not to worry about it, since there was no way they could enforce additional terms beyond the original EULA as a condition of fixing a defective product.
A contract requires a meeting of the minds. A signature on paper or a click on a form might be an indicator of this, but it's pretty obvious when someone's installing a security patch during a massive worm outbreak that license terms are the furthest thing from their mind.
(This is, of course, not legal advice.)
Real genius ...
I had one that would. Well, when she felt like it. She actually responded to verbal queues, again when she felt like it. If she didn't, she'd just give a dirty look. :)
Serious? Seriousness is well above my pay grade.
... Buying the media consitutes a transfer of ownership: which is to say that whoemever publishes media x upon transfer of ownership through selling it to you no longer has say over them.
Now I'm not a lawyer, but to me it would seem that this implies you can do with the media whatever your want as long as you remain within copyright law.
With a EULA you gain the right to run the software.
What is the theory under which you _don't_ have the right to run the software you've legally purchased, absent any EULA?
If you don't have such a right without a EULA, then presumably, you could distribute (for free, with no EULA) some useful utility you wrote, then turn around and sue anyone who runs it for copyright infringement?
I'm on your keyboard agreein' to yer yoolas.
Look, I don't want to waste any more time with this, because frankly, it's getting more obvious I'm wrong
Fixed that for you.
We wouldn't respect a law that was obviously racist [...]
Now, we wouldn't,
And when is it? If you look at the clock does it say "200 years ago", or "Now"?
The principle has been established that people cannot do unjust things under the protection of the law. Yes, more things will be realized to be unjust but that doesn't mean we should sit on our hands until we're sure all philosophy has been philisophized.
I require full knowledge of all contractual requirements involved in a transaction before I put out any money.
The law doesn't. I don't believe there's any requirement that both parties to one contract have to have full knowledge of all transactions they will enter into at any future time.
Ummm, hello, "a" transaction. The transaction. There's that plural/singular thing. You really don't understand the difference.
You buy a music CD - can you broadcast it, or play it in your nightclub?
You buy a hammer - can you legally bludgeon someone with it?
Regular usage is specifically allowed, even where copying of the work is performed.
TITLE 17 > CHAPTER 1 > Â 117. Limitations on exclusive rights: Computer programs
(a) Making of Additional Copy or Adaptation by Owner of Copy.â" Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or
(2) [archival use, etc]
If I buy ten items from my grocer and one turns out to be rotten, I am able to exercise my warranty rights for that item alone while leaving the other contracts fulfilled and valid.
And you think this proves there's a contract for each? And that this is somehow relevant to intangible property rights?
You do not have full rights to the intangible property because after purchase, the prior owner's rights are not fully extinguished.
You don't need to hold the copyright to use a work, as it says above. Essential copying is non-infringing copying.
You can't very well run around selling something that ends up being only half-sold, for exactly this reason.
A sale gives the purchaser ALL REQUIRED RIGHTS because the seller did any less, without clear warning (ie, not calling it a sale) it would be fraud.
I had this idea years ago. Cats so want to walk on your keyboard anyway.
When you install software you ALWAYS have to check the I AGREE box.
Yes, but by then I own the software. That's MY software asking the silly questions, so I ignore it. It can't offer me usage of the software as an incentive to agree to it because I bought that right at the store. Not having anything to offer, the EULA isn't a valid contract. Also, by not offering a way to use my product without agreeing the actions I take to dismiss the EULA can in no way be interpreted as assent.
Think about it. I'm a user, and I'm telling you that I never intend to agree to a contract when I bypass a EULA. As contracts require a meeting of the minds I must know about and agree to any provisions before they could possibly be binding. If I don't think I'm agreeing to a contract, I am not.
So I repeat, the ProCD case established nothing about the case where a regular user discovers the EULA post-sale, once they own the software. Contrary to what pro-EULA lawyers would have you believe, most people don't expect draconian contracts from things they already own, nor would expecting a certain class of contract mean that they automatically expected anything in that class.
Think about it. I'm a user, and I'm telling you that I never intend to agree to a contract when I bypass a EULA.
Then you are technically committing copyright infringement when you use the software.
....It's just a convenient way to prove you agreed to the terms...
Really? If the computer owner says the cat pushed the mouse button, how does that prove he is a liar? For any contract to be valid, BOTH parties must be unambiguously identified. That is why there is this thing called a notary for important stuff and signatures for the rest. In the case of a so called EULA, how are the parties to an agreement identified? How can it be proved WHO or WHAT pushed a mouse button?
All theory is gray
You all sound like a room full of nerds.
...You are therefore responsible for the contract...
To have a valid contract, the persons entering into a contract have to be proved as to who they are and if they are eligible. No matter how a mouse button gets pushed, cat, dog or some kid, there is no way to prove WHO pushed it. An assumption of the owner of the computer having pushed it is just that, an assumption, that may or may not be valid. Therefore, unless there is a witness, a signature or other mechanism that IDENTIFIES who entered into the contract, there is no contract.
All theory is gray
Since I dunno if you are sarcastic: To do an Own copy is fair use and authorized, even in the US, as long as you don't redistribute the original without destroying the copy, and as long as you don't redistribute the copy. Naturally content holder want YOU to think this is not authorized to do *any* copy. Not so. Anyway in the case above, there would be a good argument to be done that it is simply a contract renegotiation, and since the install software accepted the modified EULA, the negoziation was sucessfuly accepted on the software maker side :).
C. Sagan : A demon haunted world:
http://www.amazon.com/gp/product/0345409469/
visit randi.org
I mean, seriously. Why?
I have a typical Desktop setup, and the roll-out keyboard drawer is at about lap level. I have a cat, who likes to lay on my lap, even while I'm on the computer. Usually he manages to hit the space bar, due to its size and location on the keyboard, getting on my nerves. If I really wanted to do something as stupid as have my cat "agree" for me, all I'd have to do is enter the screen where you have to hit "I Agree" when he gets up on my lap (since almost every time he does hit the key).
Really though, I don't see what the point would be in doing that. I used to click "Agree," not just because I agreed with it (if I could even understand it), but because I never gave a damn what they were going on and on about in the license. You have to "agree," whether you actually do or not, just to be able to *use* something you just paid money for at the store. Yeah, so I lie (or at least go arish), just to be able to use something that I paid for. So what. Like they're going to go through all their "agreed" customers and make sure they were really sincere.
These days, I use open source operating systems and software, and thankfully don't have to put up with "Agree or Cancel" all the time. It's a nice change, and when on Windows installing the programs I used to use, I constantly am reminded at how stupid it is to have to click "agree" to install just about anything, all the way down to the OS itself (which, quite frankly, is disgusting on its own).
The correct answer is that the enforceability of a EULA depends on the Sale of Goods Act (or its equivalent) of your state/country.
In Germany and Alberta (dunno about other places), a EULA is not worth the paper it isn't printed on. You bought it, so it is yours.
Excuse me, but please get off my Pennisetum Clandestinum, eh!
...You accept the contract/license when you load the software onto your computer....
Except what if the person claims they sent the computer to a shop and when it came back it had the software installed? The customer has a repair bill to prove that the computer was repaired. How will it ever be proved that the owner is a liar and did install the software, which is only possible if the "agree" button is clicked. Of course, the repair shop also denies installing anything. All that can be shown is that program xxxx.exe is loaded onto a piece of dumb computer apparatus, with no way to prove how it got on there or who put it on there. Maybe it was part of a virus from the Internet.
You see, the whole problem with any EULA, is that it does NOT prove, only assumes (believes) WHO the mouse clicker might have been. Maybe it was the cat. There is no way to prove it was not the cat. In this it is much different that a signed or witnessed contract. A signature or notary witness testifies as to WHO the parties of the contract are, but a mouse click testifies of nothing.
All theory is gray
Times have changed a lot since you were 14.... Okay, perhaps not, if you're born in 1984, much less from when I was 14... Still, this means you give them Admin on the machine and I consider that a no-no for any regular user. Heck, even I run as Limited User and only log in as Administrator when strictly needed.
What was your computer? A Windows 9x machine? Well, there you go: no proper user separation. Even if someone would have wanted to do it right, they wouldn't have be able to do it.
There must be life on Mars.
Because no one on this world is going to believe that little Molly installed the $2500 retail-boxed CS4 Newegg delivered to your door last week.
God help you if you try to get her testimony on record.
She will in absolute innocence sink your case in an instant with an inconvenient and embarrassing truth.
The kid was simply your tool -
and what that says about you isn't very pretty.
The geek concocts ridiculous - and self-destructive - schemes that fail the simplest tests of logic and experience.
If it quacks like a sale, it's a sale. The customer exchanges money for a box in the same fashion as with laundry detergent.
You have the option to return the software
There's an old scam that involves selling junk to people who live just far enough away to not bother coming back. It's quite illegal to sell a known defective product, or to force the customer to pay unreasonably to return a defective product.
Then you are technically committing copyright infringement when you use the software.
Unless of course, simple ownership of the copy is enough to indemnify you from any claims for making copies essential for the intended functioning of the software. And of course, that is the case. usc 17-117
We've played out the 'you need a license to use software' line, so your argument that EULAs must be valid because they provide something necessary is pretty much shot. Gonna try again?
"Silly computer nerds, they think they can circumvent a legal issue with a techical approach."
*snigger* *snigger*
Im going to get my cat to click that I agree to the GPL when I install GPL software.
Oh crap, not so funny when YOUR license is being ignored is it?
Actually I think that you can cancel an account due to a contract change and pay whatever APR you had at that time. So if they up your APR because of their policy (not you being late paying) you're allowed to cancel and pay back at the old rate
of course canceling it also means you lose that line of credit, while still owing it, which hurts your credit score, so you're fucked either way
Of course the cat is an "instrument of your will", you are 100% guilty of progressing in the installation, but you have also demonstrated that you did not agree to the contract. Since you did not agree to the contract you are not bound by it, and the only possible crime is intentional circumvention of a contract-protection (as in copyright-protection) mechanism. I am not even sure that is illegal under any law.
If the patent application says anything other than "Contempt of Court Generator," there was a mistake.
And should be.
If it had been a stun gun or foghorn to disable, then that is OK.
But what if a mate comes home drunk and uses the wrong door?
"Reckless endangerment" I think it is called in the US.
That would account for some anomalous recent election results. We've been asking ourselves, "What kind of electorate would choose XXXX to run their affairs?" If you postulate that the decision was actually made by the nation's pets, the outcome suddenly makes more sense.
I am sure that there are many other solipsists out there.
Say it belongs to the pirate (just like this DVD is licensed not sold...) and that you have a license since you agreed to the EULA to use it. You do not attempt to say you *own* it.
"Anne Loucks built a device which, when her cat steps on it, they can click the 'I Agree' button of a EULA. Who knows what the lawyers will make of this sort of madness. Can a cat make a legal agreement? Do they need to be of legal age? She lures them onto the device, and they step on it of their own free will. Anyway, folks who hate EULAs now have another tool to make the lawyers freak out."
Promote true freedom - support standards and interoperability.
Why not modify the installer to install even if you click Decline (maybe even get it to say "OK, we changed our minds, your licence is unconditional."). Or perhaps get the installer to display a different agreement.
Excuse for why is your room always messy?
Sorry but I have courts backing up my argument and you don't. Are you a lawyer? I sure hope not because you clearly haven't done the research.
You're right to a certain extent. Still, the vast majority of these EULAs have yet to be fully tested in court. You never know what a judge will rule and you never know what a jury may decide. (In some states, contract cases can, at the request of the plaintiff, be decided by jury.)
If you do not accept the EULA, and then subsequently load the software then you are left with a legally obtained and distributed copy that was produced with the authorization of the copyright holder and your fair use rights.
That's a very, very good point. In many cases, its entirely possible to install software without accepting the EULA, as long as the EULA was not agreed to at the point of sale. It's a lot more work, but possible. I like the way you think.
My blog
And we're back to the beginning of your circular argument. No, the courts don't support EULAs or the theory that software must be licensed.
Do you have a precedent, other than ProCD, that you think is related?
Besides, you don't even know what your argument is, if it's that EULAs are valid contracts or that copyright law somehow limits your right to use a copyrighted work that you own. You'd need a tripod to support your argument.
So you're just slipping in a crucial addition there (in bold) and then saying I'm wrong in relation to a different proposition? Bravo! You have truly shown me the error in my original statement.
Yes, your original statement was too broadly restrictive and does not accurately reflect the law. You should probably learn to hedge a bit more.
Have you actually read the ProCD case?
A person who buys some software usually has to install it. Installing software is a complicated process, where you have to click various boxes, sometimes type things into a window, etc. Sometimes this is straightforward, sometimes it is somewhat complicated and requires several tries. However, there is no actual need to read any of the installation guidance that is presented to you while you install the software, just click on the correct buttons.
I wouldn't know if there was any sort of license agreement presented to me; I just click buttons until the software is installed. It's a process with no agreement to anything to get to the end, just telling the computer how to install the software.
To have a valid contract, the persons entering into a contract have to be proved as to who they are and if they are eligible. No matter how a mouse button gets pushed, cat, dog or some kid, there is no way to prove WHO pushed it. An assumption of the owner of the computer having pushed it is just that, an assumption, that may or may not be valid. Therefore, unless there is a witness, a signature or other mechanism that IDENTIFIES who entered into the contract, there is no contract.
Not so - the Statute of Frauds and other requirements of signed instruments only apply to certain contracts. For others, it's enough to show that circumstances point to their having been a contract: for instance, you own the computer, the computer has the software installed and the license has been agreed to, so therefore there's a rebuttable presumption that you're the one who agreed. To claim there's no contract, you will have to prove you didn't sign - the other party doesn't have to prove you did.
Of course the cat is an "instrument of your will", you are 100% guilty of progressing in the installation, but you have also demonstrated that you did not agree to the contract.
No. The cat is an instrument of your will, and so you have agreed to the contract. The argument you're trying to make is the "I didn't sign the contract, my pen did" that I said above.
/beats a dead horse...
The main point I keep seeing echoed over and over again in these comments:
Cat is an instrument and, by coercing said instrument into accepting the ToS you are not bound by them. That's like saying if someone opens the door to the car for me when I get in and/or starts the car for me, I'm not responsible for driving recklessly and crashing it into the bank.
If you continue to use the service while fully aware of its terms of usage, you should be bound by it.
In the turnitin.com fiasco, the courts held that children who executed the online agreement required to use the service were bound by it. The "infants can't execute contracts" isn't an ironclad thing, particularly with teenagers.
In Britain, you can pay off the balance at minimum amount each month under the old terms if you don't agree, but you won't be able to spend any more on the card.
Not in years. But it wasn't a single-purchase scenario so didn't resemble the usual EULA scenario where a customer has no prior exposure to the terms, and the case involved Z's use of the product in such a way as to almost make it available for other users, not usual conditions for an end-user.
Is there a facet to this which you believe is directly related to EULAs that you believe I am missing, or are you just saying 'ProCD' all day?
So seriously, what the fuck is this shit?
The answer is easier than you might think:
It's humor. Just humor.
I am not devoid of humor.
1984 I wish...try 1968. When I was born Bobby Kennedy was still alive and LBJ was pres. My first interaction with a "computer" was an Altair 8800 my uncle picked up at a flea market in '79, and my first PC(which I still have) was a VIC 20.
And yes their first machine was a Win98 but no I don't make them run limited user in WinXP now. Why? Because I am teaching a very valuable life lesson called "Don't be the PEBKAC problem." I have showed them how malware works using a test box, I have explained about The dancing bunnies and how malware writers exploit human desires, etc. And if they have a problem I will sit behind them and guide them, but they have to fix it themselves. In all these years they have gotten themselves exactly ONE bug, and that was when the oldest tried IM and got an IM based bug.
After he had cleaned it up by doing a full format reinstall(I taught him that once a machine is compromised it is ALWAYS suspect) I told him "You did a very good job. Since it took so much time if you want to wait and install AV after you have had a chance to try out your new games it would probably be okay." He looked at me like I grew a second head and said " No thanks. I want to install Avast Home with the full shield including IM this time and then will you show me how to make a disc image so I'll have everything the way I like it if something goes wrong in the future?" needless to say I was SO proud of him! /sniff sniff...wipes away tears of geek pride/ But now I know that if he goes to college halfway across the country instead of down the street(he wants to go to the local and stay close to home) I know that he won't be a PEBKAC spreading malware across the Internet.
While trying to keep the worst of the PEBKAC problems away by placing folks in limited user accounts might work, I prefer to teach them to use their brains to think instead of click. So now the youngest runs FF with Adblock and Noscript and the oldest runs Opera with a HOSTS file that filters most of the malware and they both run Spybot's Tea Timer.They haven't had a problem since. And when something asks for permission to write to the registry or pops up a dialog box they actually read it and ask me questions or Google it if they are unclear as to its meaning. MUCH better IMHO than trying to make PCs "brains free" by using limited user accounts, well in Windows anyway.
ACs don't waste your time replying, your posts are never seen by me.
This is absolute bullshit and should be modded down! I can make as many one-sided, take it or leave proposals I want, those taking me up on it absolutely *are* bound to them!
If it's one-sided, "take it or leave it", then it is simply not a contract and has no legal strength.
Interesting. The insurance industry basically started in the UK (referring to Lloyds of London, although, not with contacts of adhesion). But, how do insurance companies do business in the UK if there is no such thing?
This is simply wrong. Please read ProCD v Zeidenberg. EULA are binding legal contracts in the USA.
I find being offended by me offensive.
My sister found that her cat likes the iPhone touch screen. She saw the phone was calling a friend, and when she touched the cancel button, the cat knocked her hand away with its paw. It seems the cast noticed that when he touches the screen, the colors change, and it is his new toy. This explains some of those midnight calls from 'sis
If you set it up so the cat will click the button, then as far as any sensible court is concerned, the cat is merely an instrument of your will and acting under your intent.
Confucius say, "Find worm in apple - bad. Find half a worm - worse."
I'd like to know your source for this. I'm pretty sure that every commuter on a train doesn't negotiate a separate contract with the railway company.
Contracts don't have to be signed to be valid. They can be verbal, or they can be counted as accepted by action. Such as buying a ticket and boarding a train...
Confucius say, "Find worm in apple - bad. Find half a worm - worse."
what about sealing the whole setup (includinng cat) in a box. And ensure that there's an exactly 50% chance of the button being pressed. That way the EULA has been accepted and not accepted at the same time until you open the box.
No you don't.
Here's another area where geeks have a basic misunderstanding of the law, which reminds me of that vapid and stupid article recently posted to slashdot that didn't contain much useful info.
In any event, most of the posts here about EULA's not presenting a "meeting of the minds" is nonsense. If you're even a moderately sophisticated computer user, you should be familiar with software licensing. The fundamental misunderstanding that geeks (and many non-geeks) have is what they are actually buying when they buy software. You're not buying a disk, or code, or even software, in most cases. You're buying a license to use someone else's intellectual property. The license agreement, unsurprisingly, is documented in the EULA.
The click-through isn't looking for your agreement, really (even though that's what it says), what it is really doing is making sure you know about the license agreement. You agree to it just by using the software, so long as you know the EULA exists. And if you're a moderately sophisticated computer user, you likely know one exists even if you haven't seen the click-through. This set-up makes a lot of sense, too, because you've got a choice here: either use the software under the terms offered by the seller, or return it for a refund.
Now you don't get to modify a EULA, or impose one on the seller. That's not how it works because it's their property you're using. If you don't agree to the EULA, you can't use the software, but you've got a right to get your money back. You don't have a right to use the software and disgregard what the property owner wants, nor do you have a right to impose your will in some retarded manner on the owner of the software. So sorry, this cat trick isn't going work, and no lawyer is going to sweat over it. Nor is your silly text file left in the root directory.
A more justified case of "OMG user rights being violated!" would be if someone tried to get a refund after refusing to accept the license, and not getting one. But that's a lot more boring, I suppose, than cats accepting EULA's.
and btw, IAAL
What if you used Schrödinger's lolcat?
That that is is that that that that is not is not.
Wow, powerful rebuttal. Next time, don't. There's simply nothing left for anyone else to say now that you've wrapped it up so masterfully.
But the bank has verified who you are through your login on their servers, and has acknowledged your acceptance of their terms - two way communications within the contract plus acknowledging your identity. A shrink wrapped software package may never inform the company that you have accepted the EULA terms, all on _your_ computer, thus the aforementioned software company may not even know who they have entered a contract with - one way communications. I do see a difference in these two things.
* Unfair Contract Terms Act 1977
* Sale of Goods Act 1979
* Unfair Terms in Consumer Contracts Regulations 1999
Implicit contract terms for regularly traded consumer goods and services are highly regulated, e.g.
* Goods are of satisfactory quality
* Goods are fit for the purpose
* Goods are as described
* If goods are faulty and you haven't "accepted" them, you are entitled to a full refund
* If you have "accepted" faulty goods, you are entitled to compensation, repair or replacement, rescission or reduction in price.
Sure there can be informal and oral contracts, but they're difficult to enforce, especially if they're trying to prevent you from doing something you normally can do, or trying to remove/reduce liability.
Does my bum look big in this?
An insurance policy is a contract. If you want to modify the terms, just call up your insurer and negotiate before buying the policy! I had to do that a few years ago to get travel insurance for my 85 year old grandmother.
Does my bum look big in this?
Instead of using you and Vinny, what if I rigged up a shotgun (with a hair trigger, of course), through a pulley, to the cat's collar?
I think what you're looking for is a fur trigger, not a hair trigger...
(Had to get one in.)
Pulling together is the aim of despotism and tyranny. Free men pull in all kinds of directions. It's the only way to mak
My cat used to have a Hotmail account (and even though it no longer works, she still sits on my computer chair at night hoping to read her email.) However, when she applied for it, she put in her correct birthdate and species. A few years later, due to some child-protection laws, Hotmail put in a policy about "No children under 13 can have accounts", and since they weren't adjusting ages for Cat Years, they closed her account. I could have gotten it reinstated, but I'd have had to give them a credit card number, and she'd have just gone wild on eBay ordering fish by mail order, so that wasn't going to happen.
Bill Stewart
New Fast-Compression-only CPR http://preview.tinyurl.com/dy575ks
... still had vacuum tubes and punchcards. (Actually, I was probably 15 by then.) We were allowed to do anything we wanted with the punchcards and the paper drive tape, but only a couple of adults were allowed to rewire the plugboard on the side that had the core program installed on it.
It was an IBM 403 printer system, plus we could program drum cards for the Model 026 keypunch and do anything we wanted on the card sorter...
Bill Stewart
New Fast-Compression-only CPR http://preview.tinyurl.com/dy575ks
I know I'll get modded down for this, but yes but no but yes but no but corporations are bad and illegal anyway!
And it's not fair! And I dont care what the law says, it doesn't agree with me, and (I know I'll get modded down for this ) but anyway my idea to click the button is actually 100% watertight because I took law 101 three times so I should know.
I know I'll get modded down for this, but from my parent's basement in Wisconsin, I stab at thee!
Confucius say, "Find worm in apple - bad. Find half a worm - worse."
hmm.. years ago with I created an IE CD for an ISP I worked at, I edited the EULA and added my own content at the very bottom. Something to the effect of:
By agreeing to this EULA you agree to pay $1,000,000 dollars to *Name Withheld*.
Maybe I should try to collect.. a few hundred people installed it..
What if I used Schroedinger's cat? Then it would be unknown whether the EULA was accepted or not, right?
The cat is duped into agreeing to the EULA by the computer's owner, therefore the owner is still liable. It'd be funny if they managed to devise a way where the cat could initiate the download and install process without the computer owner's intervention - that would have lawyers shitting themselves and running around inserting livestock ineligibility clauses, but there is no way around it but finding some way to register duress. On free software this would be nigh on impossible.
"I hope you like Guinness, Sir. I find it a refreshing substitute for, er... food." Col. Jack O'Neil, SG-1
...you will have to prove you didn't sign...
That is interesting. Of course, the rules in a civil proceeding are different than in a criminal one. In a criminal proceeding the burden of proof is always on the accuser. Apparently then, this is not the case in a civil matter. Still, it would seem that a plaintiff would have to prove their accusation that the software got installed by the owner of a computer. The owner of the computer could claim that he loaned it to somebody and they were the ones that installed the computer software. The software could have also been installed remotely or by a virus. To assume that the owner of a computer knowingly seems to be a rather tenuous assumption these days.
All theory is gray
So this really begs the question: if I am a US citizen sitting in a hotel room in the UK or Timbuktu, who's laws apply? Who would have jurisdiction on how the EULA applies/doesn't apply? I still like the tequila idea best but, hey...
'You're saying that if you click "I agree" when you really (in your own mind) "don't agree to it in the first place"'
Clicking "I agree" would be agreeing. I was referring to bypassing the EULA.
No doubt. But the sensible conclusion would be that the intent your instrument is exercising is to decline the EULA leaving you with the unmodified fair use rights you have to any legally distributed and purchased copy of a work.
It was PDF, and PDF is searchable. The news/radio host person you heard this "Non-Searchable" garbage from is just a technological dumbass.
In case it isn't clear in context, steps 1-4 are the premise (explanatory background information) and steps 5-7 are the actual actions among the three parties (execution).
The person I was replying to had the slashdot nick "khellendros1984"
Now, I do understand you stance towards educating users. It's a good idea, but it simply doesn't work with the majority of users. I've tried your system... believe me. You do have to keep in mind that your kid is your kid and genetically probably predisposed to be more geeky.
However, I disagree on one point. The typical PEBKAC can be avoided by running Limited User. It simply is healthy computing. Essentially (for the bad analogy), you've explained how to wash your hands after going to the bathroom, but avoided the whole "to shower" concept.
In case I wasn't clear: I run Limited User myself on my machines? Why? Because it's the right thing to do. It is healthy computing, it protects me from a dumb moment (don't tell me you never had one ever) and puts me on the same footing as everyone. If someone complains, I can show them: look it's the same for me. I pretty much never need to login as Admin. Once it's set up correctly, it's bulletproof.
And so might you. The point of EULA's isn't only to bind you to their terms, it is also to inform you about the bad things they will do to you such as abusing your personal information, stealing your PC's CPU cycles and bandwidth, bombarding you with advertisements, etc.
Not sure which company you did that with, but the only things negotiable at the company I work for are price and riders. Usually an independent agent can find a provider that can fit your situation, but he doesn't modify the base policy. The policy is rarely ever modified, and when it is, it's done across the board.
Not to say there aren't custom insurers out there, because I know there are, but I would imagine that if you were able to customize your policy with a large company, there was probably a rider that changed the language to accomplish what you wanted.
BTW, because you can't negotiate a contract of adhesion that means the courts interpret any remotely ambiguous language in favor of the policy holder, not the company.
In a criminal proceeding the burden of proof is always on the accuser. Apparently then, this is not the case in a civil matter.
Not exactly. The standard of proof is more favorable to the accused in a criminal case, while in a civil case, it's equal. However, the burden of proof can shift depending on the claim and the defense. For instance, in a criminal proceeding, the burden of proof lands on the accused, if he's claiming self-defense.
Likewise, if your claim is "yes, I have the software on my computer, but I didn't install it," the burden of proof is on you. Think about it - who's in a better position to prove control of the computer? The company who has no access to it until the litigation, or you, who has full access at all times?
Still, it would seem that a plaintiff would have to prove their accusation that the software got installed by the owner of a computer. The owner of the computer could claim that he loaned it to somebody and they were the ones that installed the computer software.
Sure, but he has to claim who that someone is. No saying, "I loaned my computer out to a person I've never met or heard of, and when it back, poof, it had more software on it." That just strains credibility.
Now, you could say, "I loaned my computer to Steve. He's the one who installed your software without any knowledge or authority from me." Of course, now they'll just add Steve to the complaint and one of you two will be paying for the infringement.
The software could have also been installed remotely or by a virus. To assume that the owner of a computer knowingly seems to be a rather tenuous assumption these days.
How many computers are loaned to unknown persons who then install illegitimate copies of commercial software without the owner's knowledge? How many viruses do this? No, to assume that these happen more than once in a blue moon is a rather tenuous assumption.
I know the reference you'd dig up is the guy who was acquitted of child porn charges in Britain under the defense that someone hacked his machine. Two distinctions from your example: no commercial software, and a criminal case rather than a civil case.
If it declined the EULA, how did it the software get installed?
Confucius say, "Find worm in apple - bad. Find half a worm - worse."
9/10 for googling. 0/10 for reading comprehension. 0/10 for logic.
Not one of those is relevant to the case at hand and supports any of your original assertions that:
Learn the difference between how the law is and how you'd like it to be and maybe you might get a GCE or two.
When I go to the pub I see that happen all the time. When you look old enough, why don't you go in, order several drinks and walk out without paying claiming that 1) there was no signed contract 2) you didn't get the chance to negotiate the prices. Clown.
Confucius say, "Find worm in apple - bad. Find half a worm - worse."
Disney got out of paying something like $8 million to the cat who starred in THE CAT FROM OUTER SPACE. Because a cat can't sign a contract, lol.