Slashdot Mirror
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?
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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
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..
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?
"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
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.
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.
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.
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).
Then you can claim that either Schroedinger accepted the agreement, or the software company killed your cat.
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!)?
The EULA itself is already a case of rules-lawyering. It's trying to avoid those irritating steps normally necessary to forming a contract, in particular both (actual) agreement and consideration, by holding the use of purchased software hostage until you indicate "agreement". Either the act of clicking "agree" means nothing, or various ways to use the software without clicking "agree" really do mean you aren't bound by the EULA.
I hold to the principle that the EULA is meaningless, and clicking on "Agree" signifies agreement to the EULA like clicking on "Yes" to the quit box in Wolfenstein 3D signifies you agree that you are a wimp. But if the courts want to pretend that clicking "Agree" actually is agreement, they can hardly complain about rules-lawyering if someone avoids clicking "Agree".
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.
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This is not news! I have a mouse that has been accepting EULAs for years!
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
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.
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?
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!
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?
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!
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!
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.
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.
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.
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?
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).
is your argument that we pay to possess the software, but clicking 'Agree' on the EULA is what actually authorizes us to use that software legally.
that's good to know, because I have a ton of pirated software, and since I've clicked "agree" on that EULA during installation, i now have a valid license, and I am now authorized to use it. sweet!
-I only code in BASIC.-
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.
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
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?
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.
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.
No, it's a cat. I've got 3. Sure, if you don't want them all over your keyboard and mouse, they're bound to leap on it at some point. As soon as you want them to, though? Forget it unless you trick them into it.
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.
Wrong. Copyright law says you can use software that you have purchased. Including making copies while installing it and into memory and swap while using it. (And you can even make backups of it, both of the install medium and hard drive backups of the whole system.)
Your logic used to be the rational behind EULA. It stopped being applicable when copyright law was amended for software to allow normal usage without violating copyright. (Which disallowed normal usage without the wavier granted you in the EULA.)
EULAs are, nowadays, no more required for using software than for reading books.
If corporations are people, aren't stockholders guilty of slavery?
i'm in ur EULA remoovin' ur liability
You can fool some of the people all of the time
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 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
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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.
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....
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.
It'll make them laugh at how naive you are... Now where was that link to the "You Are Not a Lawyer!" column?
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
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
Next, it will be a device allow 3 cats to perform executions.
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
You can always get drunk...most contracts aren't enforceable if one party is incapacitated.
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
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.
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
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.
"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?
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.
You mean you aren't already drunk before you get there? Ur doin' it wrong.
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.
she snarled, hissed, then peed on it
Rather than moderate, I'll point out that it was $50,000 rather than $100.
Res publica non dominetur
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).
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?
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...
>>>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
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
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.
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
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.
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.
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!
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.
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
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.
(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.