EULAs Don't Have To Suck

jfruhlinger writes "The ubiquitous EULA — reams of baffling text imposing draconian terms on software users — infuriate most Slashdot users and are routinely ignored by everyone else (until they suddenly cause trouble, of course). But it doesn't have to be that way. Several European countries are considering laws mandating user-friendly EULAs, and some companies provide them voluntarily."

Comments

Click-through GPL.

[Anonymous Coward]

Routinely ignored.

Re:Click-through GPL.

[flonker]

I have to agree with AC here. WTF is up with click-through GPLs? You don't have to accept it, that's the whole point. Yet, you do have to accept it for the installer to function.

Re:Click-through GPL.

[arielCo]

Because I already know the gist of it, especially if I only plan to use the stuff as opposed to redistributing it.

Re:Click-through GPL.

[Smallpond]

You do have to accept it. The license is not optional on GPL software. The GPL is offering you the full source code to a program. It says you can do whatever you want with the program yourself, but if you want to redistribute it you must be bound by the license restrictions. How hard is that?

Re:Click-through GPL.

[WorBlux]

Some installers just have the idea every piece of software will have a EULA.

Re:Click-through GPL.

[Bert64]

You only have to accept the licence if you want to distribute, it does not apply if you are simply using the software...

Most commercial EULAs prohibit distribution altogether, and place restrictions on use too, and thus demand that you agree to them before you can use the software at all.

Re:Click-through GPL.

[arielCo]

Ahem, you actually have to *agree* to its obligations. You are granted a license, and there's a copyright holder:

Who has the power to enforce the GPL? (#WhoHasThePower)

Since the GPL is a copyright license, the copyright holders of the software are the ones who have the power to enforce the GPL. If you see a violation of the GPL, you should inform the developers of the GPL-covered software involved. They either are the copyright holders, or are connected with the copyright holders.

http://www.gnu.org/licenses/gpl-faq.html#WhoHasThePower

Re:Click-through GPL.

[Richard_at_work]

The license is most certainly optional on GPL software - for the GPL v2, see sections 0 ("Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running the Program is not restricted, and the output from the Program is covered only if its contents constitute a work based on the Program (independent of having been made by running the Program)") and 5 ("You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works.").

For the GPL v3, see section 9 ("You are not required to accept this License in order to receive or run a copy of the Program.").

If I do not wish to modify or distribute, I don't have to accept the GPL at all.

Re:Click-through GPL.

[Baloroth]

Might want to read a little further: it specifically says you don't have to agree to it unless you want to distribute or modify it. And agreeing doesn't put any obligations on you, again, unless you distribute or modify.

Re:Click-through GPL.

[Baloroth]

No you don't. Not to simply use it. See ClickThrough page which addresses this exact question. Shame on OP for not posting it.

Re:Click-through GPL.

[compro01]

Some installers? Which one doesn't?

Re:Click-through GPL.

[icebraining]

dpkg?

Re:Click-through GPL.

[migla]

The thing is that you don't have to agree to the gpl to agree that you do not have the right to redistribute the gpl-licenced product willy-nilly, since that is all ready covered by the law (where applicable). The law says there is copyright and a copyright holder. And you have to agree with the law. Or else.

Re:Click-through GPL.

[Anonymous Coward]

Every installer creation program I have ever seen, and I have seen most if not all of them, gives you the *option* to put in the EULA screen. More modern ones will allow you to enable the installer to proceed without pressing the "I Accept" button, or even to not include an "I Accept" button.

Re:Click-through GPL.

[Anonymous Coward]

I click it but I don't accept it. Unless you mean accept=click. When I click accept I'm just lying.

Re:Click-through GPL.

[Anonymous Coward]

I'm amused by some of the older programs or more commonly websites and message boards that have an agreement of some sort, but allowed all of the text to be selected and deleted before clicking 'OK'. Or you can type in your own EULA. Not that anyone's going to see or know that you did either, but it was amusing.

Re:Click-through GPL.

[stephanruby]

Routinely ignored.

As it should be, the people who were going to rip off your open source code are going to rip it off whether it's in a click-through format, or not.

By putting in a click-through format, you're just slowing down everybody.

Re:Click-through GPL.

[Albio]

You have to accept the license if you want to use the software. It just happens that the license doesn't do anything if all you are doing is using the software.

Re:Click-through GPL.

[oursland]

Amusingly, by doing this you implicitly adhere to the terms of the GPL.

Re:Click-through GPL.

[rtb61]

Do not confuse GPL with EULA. Quite simply any post point of sale agreements need to definitively ban. Want an EULA than put in on the cover of the box the merchandise is sold in. If the EULA is not made clearly available and upon display as clearly as all other marketing material, at the point of sale it should be deemed defunct and non-binding. This should also extend to service patches and bug fixes, no change of EULA beyond the original sale.

Re:Click-through GPL.

[xelah]

Umm....do you actually have to accept a licence at all? The GPL is effectively a certain set of permission granted to the whole world by the copyright holder, a bit like standing up in a room and shouting 'I give you all permission to use my software'. You've got permission whether you like it or not....but you don't have to use it. It's not like a licence agreement - a contract in which you agree to be bound by/do certain things (such as pay the copyright holder) in exchange for your copyright licence. Surely there is no contract when a GPL licence is granted?

Re:Click-through GPL.

[DaVince21]

Most of the installers that have this kind of click-through GPL can just be extracted as if it were a zip archive, thus completely circumventing the whole license accepting deal.

The "Accept" button in installers never makes sense, anyway. You automatically accept licenses once you start using the software, and for the GPL there isn't even anything to accept in the first place.

Corporate Owned Government

[Anonymous Coward]

Draconian, unethical, and immoral EULAs are just the natural extension of a political system that has long since been sold to the highest bidder.

I had to sign a contract for employment that claimed company ownership of projects completed on my own time. I had already turned down all the other jobs and needed my income, so I had to sign it.

It should be illegal to even write these types of contracts or EULAs, and it would be if not for our blindingly corrupt government.

Re:Corporate Owned Government

[Moryath]

No kidding.

Anything created by lawyers, is not created for the public good. It is created deliberately confusing and inscrutable to further the goal of making more bullshit work for the leeches known as lawyers.

There's an old saying that goes "ignorance of the law is no excuse." Lawyers have taken this to its logical extreme: they have made the law so byzantine, so inscrutable, that it's impossible to understand what the fuck the law SAYS without consulting a lawyer. Therefore, ignorance is the norm, and the lawyers prosper despite not contributing one single fucking good to the economy.

Re:Corporate Owned Government

[Anonymous Coward]

Then don't sign contracts that have terms you disagree with.

Re:Corporate Owned Government

[Marxist Hacker 42]

Sometimes the choice is between signing and starvation. Contracts should NEVER be unilateral- but I think they'd be a lot better if instead of being enforced by the courts, every contract dispute would have to be settled by pistols at 15 paces.

Re:Corporate Owned Government

[Quila]

Contract terms against the public interest are considered unenforceable.

Now all we need is a good government to define "public interest" to be in the interest of the actual public of the people, not the corporations.

Re:Corporate Owned Government

[Z00L00K]

In some places the EULA:s may not be valid due to consumer laws. At least if you purchase as a private person. If you purchase as a company the EULA:s may still be valid.

Re:Corporate Owned Government

[Anonymous Coward]

You might want to reconsider that; you as an individual only have two hands with which to hold pistol(s). The company offering the software has a small army of workers that it can draw on, as well as enough funds to buy your opposition full ballistic body armour if they so choose.

Either way, the choice is against you. At least with the current system, you're likely to come away with your lungs intact.

Re:Corporate Owned Government

[Man Eating Duck]

Then don't sign contracts that have terms you disagree with.

Or change them prior to signing. I struck a clause from an employment contract once that was not only outrageous, but also illegal (it basically said "no overtime pay"). They tried to argue about it, but I carefully pointed out that it would not be smart of them to sign such a contract since it was, in fact, illegal. Laws regarding working conditions are very strong where I live.

Re:Corporate Owned Government

[element-o.p.]

While I agree with your major point...:

It should be illegal to even write [draconian, unethical, and immoral] contracts or EULAs...

...I would like to point out that you did, in fact, have a choice: accept the contract, or do without the job. It's not much of a choice, admitted, but you did weigh the pros and cons of both options and decide to choose the option that sucked less for you in your circumstances.

FWIW, my initial terms of employment were similar, but when I addressed my concerns to HR, they agreed to reduce the terms to something a little less draconian. Specifically, projects outside the scope of my employment, that do not compete with my employer and that are completed on my own time are mine. Work related projects, projects that might compete with my employer or that are created on company time...not so much. A second option would be to accept the contract for now since you apparently really needed the income, put your personal projects on hold, and continue to search for employment with a more reasonable employer.

Re:Corporate Owned Government

[Carewolf]

No EULAs are valid if you are provided a running service. As in the company can take away your service if you do not comply, it is never valid for purchased products since you already own the product, so the only way the seller could take it back would be to steal it.

Re:Corporate Owned Government

[rdnetto]

In Australia, unfair terms in consumer contracts can be set aside - see http://www.freehills.com/5908.aspx

Re:Corporate Owned Government

[Z00L00K]

Depends on which country you are in what the laws says.

Re:Corporate Owned Government

[Marxist Hacker 42]

What idiot would go after the workers, for a contract signed by the CEO?

Re:Corporate Owned Government

[sjames]

Must be nice living with mom and dad so you don't have to choose between employment and sleeping in the park.

They inherently suck

[Omnifarious]

They are an attempt to form a unconscionable (in the legal sense) contract with thousands of people. And almost invariably they try to convince you that you have less rights than you do under the law. They are basically about eliminating fair use, because every one I've seen uses the leverage of copyright law.

Now, if this were about terms of service, that would be something. I'm all for terms of service that are legible by ordinary human beings.

Re:They inherently suck

[sribe]

And almost invariably they try to convince you that you have less rights than you do under the law.

In essence, they are fraudulent "anti-warranty" documents.

Re:They inherently suck

[alostpacket]

Well I can see a valid use for a "This software is provided as-is" clause. It's clauses like this that are bad: "you can only use this yourself, never re-sell, rent, trade, and must only use it on one computer from the hours of 1pm-2pm with one hand tied behind your back..."

Re:They inherently suck

[snowgirl]

They are an attempt to form a unconscionable (in the legal sense) contract with thousands of people.

I don't think that they are unconscionable by default. Sure the vast majority (every single one?) that I've bothered to consult has been pretty draconian, but there is nothing inherent in the idea of a EULA that makes it unconscionable.

I suppose this article is trying to point to the possibility that "hey, they don't have to be unconscionable, so why don't we start trying to fix it so that they're not!"

Re:They inherently suck

[Zironic]

They're non-negotiable contracts between unequal parties where the signature isn't even verified and the contract isn't presented until -after- money has changed hands. Nothing about them is conscionable

Re:They inherently suck

[Omnifarious]

I don't think that they are unconscionable by default. Sure the vast majority (every single one?) that I've bothered to consult has been pretty draconian, but there is nothing inherent in the idea of a EULA that makes it unconscionable.

I am not a lawyer, but I do know this... The term "unconscionable" when referring to contracts has a very specific legal meaning. And by that definition, EULAs are inherently unconscionable. They can't help it. They don't allow negotiation of terms. They are 'agreed' to after money changes hands. The signature of the party who is under the most restrictions isn't even verified. They are, by the strict legal definition of the term, inherently unconscionable.

Yes, the terms could be very nice. But whether or not the terms are good for the buyer doesn't actually strongly figure into whether or not a contract is considered 'unconscionable' from a legal standpoint.

Re:They inherently suck

[marcosdumay]

You can only see the contract after you have paid for it, and there is no clear procedure to get you money back.

If that is not draconian, what is it? It doesn't matter what the contract says.

Re:They inherently suck

[Darinbob]

I actually liked the Borland licenses. Simple and easy to understand with rights preserved for both producer and consumer.

Re:They inherently suck

[iamwahoo2]

I would like to add the further point to the parent that EULA are typically bartering with something that it does not own or control. That is "Usage Rights". As the software developer and distributor they own the copyrights and they own the physical media. When they sell it, they give up their ownership of the physical object and still retain copyright. If the user of the software is not asking to copy and distribute, then copyright is not at issue. Granted for a service company like Facebook, usage rights makes sense, as they are providing you with a service that you are using and the terms of that usage need to be clear, but for the vast majority of software available in stores, a person should be able to to purchase the software, not accept the EULA, and then continue to use the software without penalty. Denying a customer the ability to use the product because they did not accept this meaningless contract should be called what it actually is and that is a scam.

Re:They inherently suck

[shking]

The Borland license was great!... and in plain english too!

http://mobile.osnews.com/story.php/22342/Borland-in-the-1980s-Treat-Software-Just-Like-a-Book/

No-Nonsense License Statement

This software is protected by both United States copyright law and international copyright treaty provisions. Therefore, you must treat this software just like a book, except that you may copy it onto a computer to be used and you may make archival copies of the software for the sole purpose of backing-up our software and protecting your investment from loss.

By saying "just like a book," Borland means, for example, that this software may be used by any number of people, and may be freely moved from one computer location to another, so long as there is no possibility of it being used at one location while it's being used at another or on a computer network by more than one user at one location. Just like a book can't be read by two different people in two different places at the same time, neither can the software be used by two different people in two different places at the same time. (Unless, of course, Borland's copyright has been violated or the use is on a computer network by up to the number of users authorized by additional Borland licenses as explained below.)

Re:They inherently suck

[snowgirl]

They're non-negotiable contracts between unequal parties where the signature isn't even verified and the contract isn't presented until -after- money has changed hands. Nothing about them is conscionable

None of that makes a contract unconscionable. It makes a shitty contract, that you're probably better off declining to agree to, but it does not make it unconscionable.

Re:They inherently suck

[snowgirl]

I don't think that they are unconscionable by default. Sure the vast majority (every single one?) that I've bothered to consult has been pretty draconian, but there is nothing inherent in the idea of a EULA that makes it unconscionable.

I am not a lawyer, but I do know this... The term "unconscionable" when referring to contracts has a very specific legal meaning. And by that definition, EULAs are inherently unconscionable. They can't help it. They don't allow negotiation of terms. They are 'agreed' to after money changes hands. The signature of the party who is under the most restrictions isn't even verified. They are, by the strict legal definition of the term, inherently unconscionable.

Yes, the terms could be very nice. But whether or not the terms are good for the buyer doesn't actually strongly figure into whether or not a contract is considered 'unconscionable' from a legal standpoint.

Yes, "unconscionable" has a specific meaning. It typically means "a contract is held to be unenforceable because the consideration offered is lacking or is so obviously inadequate that to enforce the contract would be unfair to the party seeking to escape the contract."

Note, this does not cover negotiability of terms. (Non-negotiable contracts or "boiler-plate contracts" can still be entirely conscionable.) Nothing about money changing hands prior to agreement makes the contract unconscionable. Use of the product in exchange for conditions of use is entirely acceptable consideration. The signature of a party is not required for anything but those covered by the Statute of frauds (which lays out the requirements for written and verified contracts): considerations for marriage, contracts that cannot be performed within one year, transfer of land, an executor of a will paying with his own money, sale of goods in excess of $500, and surety. Certainly, nothing about a contract not verifying signatures or parties means that one doesn't get a fair shake in the deal. In fact, the vast majority of contracts that you enter into aren't even written, let alone verified signatures.

I am not a lawyer

Indeed you are not, and you should probably attempt to not be one on the internet, or at least try A LOT harder... for example, consult Wikipedia about the legal topic you're attempting to argue for/against/about before you actually post a comment... because nothing about a EULA implies automatically that it is unconscionable.

Re:They inherently suck

[snowgirl]

You can only see the contract after you have paid for it, and there is no clear procedure to get you money back.

If that is not draconian, what is it? It doesn't matter what the contract says.

I said that they are typically draconian. However, a EULA could very well be written that states that by using their software you are granted the reward of $1 million USD. Such a EULA would not be draconian, and it would certainly not be unconscionable.

Thus, there is nothing inherent to EULAs that make them unconscionable or draconian. It's just the way that they've so often been done that makes them draconian, (but not unconscionable).

Re:They inherently suck

[Zironic]

You appear to not know the legal definition of unconscionable.

Re:They inherently suck

[Patch86]

Well I can see a valid use for a "This software is provided as-is" clause.

If everyone were allowed to do that, there would be no concept of laws preventing fraudulent sales of goods, sales of damaged or nonfunctional goods, false advertising of goods, etc.

In EU (if nowhere else), it is the manufacturer's duty to ensure the thing they're selling you is good for 6 months minimum, and for a very long time thereafter (if the buyer can prove it was manufacturer's errors that have caused the item to go wrong). Trying to force the buyer to sign away this right is not allowed. Otherwise they would all do it.

Re:They inherently suck

[snowgirl]

You appear to not know the legal definition of unconscionable.

No, you don't seem to know the legal definition of unconscionable. Contracts can are are allowed to be unfavorable. There is nothing wrong with that. (c.f. non-disclosure agreements in all standard settlements with major corporations.) The point on "unconscionable" comes when the terms are so unfavorable that it's wrong to expect that anyone should be held to their terms.

As I noted to someone else, a EULA could be drafted that says "By using this product, you are entitled to a $100,000 usage bonus by the company." This EULA would certainly not be draconian, or unconscionable... thus EULAs are not by definition unconscionable. Even if they are as drafted now typically unfavorable, and in some cases have been found to have unconscionable clauses. Note: due to servability clauses, typically an unconscionable clause will only be stricken from the contract, while the rest of the contract remains valid. Unless that clause is central to the contract, then it will not void the entire contract.

Example: a EULA says that you cannot use this software on anything but a genuine Apple branded product, and that you are not allowed to make backups of the software, with a severability clause. It's taken to court, the "no backups" is found to be unconscionable as it violates fair-use rights, but the "cannot use this software on anything but genuine Apple branded products" is upheld, and enforced.

Next example: a EULA says you cannot make backup copies, because if you ever have a problem with your installation media, you can contact the company for a replacement. It's taken to court, while the clause does violate fair-use rights, it addresses an alternative that meets all the concerns for why fair-use allows for backups in the first place. It is thus upheld. (You are allowed to forfeit rights, as long as you receive just consideration for doing so. Receiving a right to free replacement of installation media in exchange for a forfeit of backup rights is perfectly just.)

So, I've rambled a lot, but this is my point: EULAs are not by definition unconscionable. Some have been found to have unconscionable clauses, and those clauses have been excised on a per-judgement basis only, because nothing about EULAs in inherently unconscionable. (c.f. above, where I note the lottery winner EULA.)

User Friendly Laws

[Anonymous Coward]

Why not mandate User Friendly bills for congress too? Same legalese obfuscation happens there enough so no one knows what they are really voting for.

Re:User Friendly Laws

[Anonymous Coward]

Problem is that many-to-most laws are as technical and specific as any large piece of software. There are patches, and interfaces to other systems. The downside is that the "programming language" is English, and colloquial meanings of many words or terms are instead formalized, just like you'd statically type variables and declare a function's signature. Most of the "legalese" is just technical "geek speak" for lawyers.

Not saying slimy lobbyists and politicians (or their staffers) don't intentionally obsfucate bills for their own gain, but there is a reason for the dense & hard to decipher language (namely, you're not trained to be able to read it). From TFA, I rather like the "Human Friendly Summary" sitting next to the legalese.

Re:User Friendly Laws

[snowgirl]

Not saying slimy lobbyists and politicians (or their staffers) don't intentionally obsfucate bills for their own gain, but there is a reason for the dense & hard to decipher language (namely, you're not trained to be able to read it). From TFA, I rather like the "Human Friendly Summary" sitting next to the legalese.

This right here. I'm surprise at how many computer geeks think that making laws into plain English will accomplish anything. It's like, hey, fine, let's require you to do all of your programming in simple and plain English, rather than these arcane scribbles and symbols and grammars!

Legal documents are dense legalese for a reason: a bug in a computer program means a computer crash, but a bug in a legal document means a loophole. Everyone wants to close loopholes, but no one thinks about how that causes the dense legalese that we need trained professionals to interpret.

Re:User Friendly Laws

[jmauro]

The reason people want simple laws is for the same reason you want simple code. The more complex it is the harder it is to actually spot loopholes/bugs and to understand what is going on.

A lot of the legalese exists solely to obfuscate what the law is actually doing.

Re:User Friendly Laws

[Aryden]

That's a crock of shit. There are bills out there that are nothing but legal rhetoric when they could have just as easily said "No corporation can force an employee to sign a contract that would in any way hinder their ability to gain employment after they leave the corporation" "A corporation is defined as any business that is legally registered as a business in any state".

Holy shit, I just re-wrote non-compete laws in less than 90 pages....AND people can understand it.

Re:User Friendly Laws

[Jiro]

And then it turns out that corporations are not allowed to make the employee wear shoes because there's a hippie-owned store 1000 miles away who only hires the barefoot--and the law didn't include any clauses about the hindrance being common, nearby, or even in the same field of business.

Re:User Friendly Laws

[Aryden]

You instance is not pertinent to the statement I made.

Re:User Friendly Laws

[dunkelfalke]

This right here. I'm surprise at how many computer geeks think that making laws into plain English will accomplish anything. It's like, hey, fine, let's require you to do all of your programming in simple and plain English, rather than these arcane scribbles and symbols and grammars!

These "arcane scribbles" is the legacy of C and people who were too lazy to type a few characters more than absolutely necessary. This is not the only way to write software. Programming languages like Pascal are, for most cases, simple and plain English without ambiguity and undefined behavior and where a symbol like * has got exactly one meaning instead of four possible interpretations that depend on the context.

Re:User Friendly Laws

[iamwahoo2]

The Bill of Rights and the Constitution are fairly short considering the extent of ground they cover. Turns out that some previous US Politicians felt that laws should be understandable to the general populace.

Re:User Friendly Laws

[cheekyjohnson]

I doubt most people know how to program to begin with. And if the code can be simplified, then I believe that it should. No point in making it unnecessarily complicated.

a bug in a computer program means a computer crash, but a bug in a legal document means a loophole.

That doesn't explain why they make the legal documents so difficult to understand for the average person. I'm sure there are many ways to do it that would make them readable for the average person.

Re:User Friendly Laws

[Toafan]

Your "point" is actually invalid because

after they leave the corporation.

-- that is, once they no longer work for this company. So they could easily quite their job at this company, and go down to this hippie-owned store tomorrow (or next week, or whatever) and get a job then.

And now part of me feels like a jerk for having to state the obvious like that...

Re:User Friendly Laws

[snowgirl]

This right here. I'm surprise at how many computer geeks think that making laws into plain English will accomplish anything. It's like, hey, fine, let's require you to do all of your programming in simple and plain English, rather than these arcane scribbles and symbols and grammars!

These "arcane scribbles" is the legacy of C and people who were too lazy to type a few characters more than absolutely necessary. This is not the only way to write software. Programming languages like Pascal are, for most cases, simple and plain English without ambiguity and undefined behavior and where a symbol like * has got exactly one meaning instead of four possible interpretations that depend on the context.

Yes, because I could hand a ream of Pascal code to my non-computer-programming mother, and ask her to describe what the program does.

It doesn't matter how "simple" the programming language, it's going to be arcane, and require training and/or experience to understanding. The idea that people think that any layperson should be able to sit down with the USC and understand it, with all of its nuances and variations is pretty amazing... almost amazing as thinking that just because Pascal syntax is clearer and less-ambiguous that any layperson would be able to understand it perfectly.

Re:User Friendly Laws

[snowgirl]

I doubt most people know how to program to begin with. And if the code can be simplified, then I believe that it should. No point in making it unnecessarily complicated.

a bug in a computer program means a computer crash, but a bug in a legal document means a loophole.

That doesn't explain why they make the legal documents so difficult to understand for the average person. I'm sure there are many ways to do it that would make them readable for the average person.

Because the terms "sell" "convey" and "transfer" all have different meanings, and so the contract has to cover each of those possibilities. Otherwise, let's say that the law simply says that you can't sell or transfer your property to an heir immediately prior to your death without it incurring inheritance tax. Oh, except because I gifted the property in a conveyance, rather than sell or transfer it, I am now outside of the condition of the law, and I'm A1 double plus good ok with the law!

Or better yet, a real world example from history: A bank teller argues that he didn't steal the money, because people willingly gave him the money without force or coercion, thus there was no theft. He's technically correct, and beats the theft charge.

Re:User Friendly Laws

[snowgirl]

That's a crock of shit. There are bills out there that are nothing but legal rhetoric when they could have just as easily said "No corporation can force an employee to sign a contract that would in any way hinder their ability to gain employment after they leave the corporation" "A corporation is defined as any business that is legally registered as a business in any state".

I added emphasis to your text in order to demonstrate the keyword in my legal loophole. We didn't force anyone to sign a contract with a non-compete clause. They were well within their rights to decline to sign the contract, and not be employed by our company. As there was no contract that we offer or guarantee him employment, we're well within our rights to decline employment to any person under any conditions we desire. Declining to sign the non-compete contract is one of those. No force involved, just conditioned employment.

As the individual chose to enter into the non-compete clause of their own freewill without any force, the contract is valid, and shall stand up in court.

Holy shit, I just re-wrote non-compete laws in less than 90 pages....AND people can understand it.

Hint, if you think you solved in one sentence what lawyers who fucking do this for a living haven't been able to solve in decades of intense adversarial battles... you're wrong.

Re:User Friendly Laws

[cheekyjohnson]

Because the terms "sell" "convey" and "transfer" all have different meanings, and so the contract has to cover each of those possibilities.

Not quite what I meant. They're typically so ridiculously long and difficult for the average person to understand that no one reads them. I don't mean just using words with different means. I mean using rather obscure legal terms when others would suffice.

A bank teller argues that he didn't steal the money, because people willingly gave him the money without force or coercion, thus there was no theft. He's technically correct, and beats the theft charge.

Sounds like something other than outright theft happened.

Re:User Friendly Laws

[Aryden]

The lawyers only battle through the wording because they can battle through it. I know, I have a whole family full of them. Every last one of them will agree, rewriting in plain speech is not a problem and can easily be done with a little thought thrown at it.

Re:User Friendly Laws

[dunkelfalke]

Yes, because I could hand a ream of Pascal code to my non-computer-programming mother, and ask her to describe what the program does.

Give it a try sometime, the outcome might surprise you.

amazing as thinking that just because Pascal syntax is clearer and less-ambiguous that any layperson would be able to understand it perfectly

Not perfectly, but certainly well enough.

By the way, the EULAs and other types of standard form contracts are explicitly written to screw you in as many ways as possible. That is well known and accepted by German courts, so such contracts or parts of it can very easily be declared invalid because they are either unlawful, constrain one side too hard or are otherwise unconscientious (don't know if it is the right word, English is not my native tongue).

Not a lawyer, but I used to fuck one and I still miss her.

Re:User Friendly Laws

[snowgirl]

Not quite what I meant. They're typically so ridiculously long and difficult for the average person to understand that no one reads them. I don't mean just using words with different means. I mean using rather obscure legal terms when others would suffice.

They use obscure legal terms, because the obscure legal terms have defined and set meanings. When I talk about my "issue" in a will, it is clear that I mean all of my children, rather than "heir" which means any who stand to inherit (your spouse is an "heir" but not an "issue"). Thus, I may want to leave $100,000 to all of my issue, but not to all of my heirs. (Because I want to give a radio flyer to my brother, because we used to play on it as children, and thus he is an heir, but I don't want him to receive a $100,000 inheritance along with that radio flyer. I only want that to go my children.) "So, why don't they just use the term children"? Because if one of my children had a grandchild, then that grandchild is also an "issue", and would receive its due $100,000. And if that grandchild had a child, then that great-grandchild would also receive its due $100,000. So, the only other option to "all of my issue are to receive a $100,000 inheritance" is "my children and all descendants of my children are each to receive a $100,000 inheritance".

A bank teller argues that he didn't steal the money, because people willingly gave him the money without force or coercion, thus there was no theft. He's technically correct, and beats the theft charge.

Sounds like something other than outright theft happened.

This is the specific story of how "embezzlement" came to exist. It serves as a really nice example of how loopholes in the language of law can accidentally let someone get away with a crime. The only solution is to "patch" the law, and put in a new form of theft, where the money is taken when given in trust, and now people can't get away with crimes anymore, but now we have yet another legal term on the books.

Re:User Friendly Laws

[snowgirl]

The lawyers only battle through the wording because they can battle through it. I know, I have a whole family full of them.

Granted.

Every last one of them will agree, rewriting in plain speech is not a problem and can easily be done with a little thought thrown at it.

But doing so introduces ambiguity, and more opportunities for lawyers to battle about wording. And when the judge comes down on what the contract really said, they open themselves up to "the other party's interpretation is correct". So, better to be excruciatingly clear about the intent in the contract, and ensure that the judge is much more likely to agree with you.

Especially, on a boilerplate contract, where the rules of construction require the judge to rule every ambiguity against the drafting party.

Re:User Friendly Laws

[snowgirl]

Yes, because I could hand a ream of Pascal code to my non-computer-programming mother, and ask her to describe what the program does.

Give it a try sometime, the outcome might surprise you.

I find this assertion unlikely.

By the way, the EULAs and other types of standard form contracts are explicitly written to screw you in as many ways as possible. That is well known and accepted by German courts, so such contracts or parts of it can very easily be declared invalid because they are either unlawful, constrain one side too hard or are otherwise unconscientious (don't know if it is the right word, English is not my native tongue).

Not a lawyer, but I used to fuck one and I still miss her.

You Sir, seem to understand "unconscionable" way better than the vast majority of people responding to me... even though you don't remember the word.

Yes, EULAs as currently done are pretty much written with the intent to screw you. This however does not mean that EULAs are by definition unconscionable, just that most (all?) of them drafted so far are unconscionable.

Re:User Friendly Laws

[Aryden]

You can take out the ambiguity and still use simple speech.

Re:User Friendly Laws

[snowgirl]

You can take out the ambiguity and still use simple speech.

Keep telling yourself that.

Re:User Friendly Laws

[cheekyjohnson]

I don't know. Looking at some EULAs, I've seen many, many things that could be drastically shortened and simplified. But they weren't. And I don't think any law should be 3,000 pages long.

Re:User Friendly Laws

[snowgirl]

I don't know. Looking at some EULAs, I've seen many, many things that could be drastically shortened and simplified. But they weren't.

I've worked in programming for years, and I've refactored some code here and there to make it shorter and more simplified, and then it just didn't work right afterwards. I won't argue that all legalese is the best it can possibly be, but often times the lawyers are closing some obscure possible misinterpretation. You know, just to be sure that no one misunderstands them. Using redundancy makes sure that their point is clear and won't be mistaken as something else.

And I don't think any law should be 3,000 pages long.

So, the various implementations of the Universal Commercial Code covering all manner of commercial conduct shouldn't be more than 3,000 pages long? It's kind of high hopes there...

Re:User Friendly Laws

[cheekyjohnson]

and I've refactored some code here and there to make it shorter and more simplified

Then it was done incorrectly, obviously. It's possible to both simplify it and have it work.

Using redundancy makes sure that their point is clear and won't be mistaken as something else.

It's called "redundancy" for a reason. If someone mistakes it for something else, then they're not actually following the law/EULA (since you did call it a mistake).

So, the various implementations of the Universal Commercial Code covering all manner of commercial conduct shouldn't be more than 3,000 pages long? It's kind of high hopes there...

Most laws, then?

Re:User Friendly Laws

[snowgirl]

and I've refactored some code here and there to make it shorter and more simplified

Then it was done incorrectly, obviously. It's possible to both simplify it and have it work.

Except when the code around it depends upon side-effects and other behaviors that my code does not replicate. "Well, then THAT code was written poorly, and/or wrongly". No argument here, but that doesn't change the fact that it's there, and I have to deal with it.

Using redundancy makes sure that their point is clear and won't be mistaken as something else.

It's called "redundancy" for a reason. If someone mistakes it for something else, then they're not actually following the law/EULA (since you did call it a mistake).

Except when a Judge agrees that a potentially mistaken reading of the text agrees with the other party in an adversarial proceeding... or when there's simply the possibility of it agreeing with the other party, and it's a boilerplate contract, so if it can be mistaken for meaning something else in any way shape or form (within reason) then it is interpreted most harshly against the drafting party.

Think of it as a fight with a girlfriend/wife/SO, where everything you say is getting twisted to mean something bad, and you know you need to just shut up. Now, imagine that that same hostile interpretation method is applied to the contract that you drafted. How would you write it now?

So, the various implementations of the Universal Commercial Code covering all manner of commercial conduct shouldn't be more than 3,000 pages long? It's kind of high hopes there...

Most laws, then?

You would hope, but how does your new law interact with another law from over there, and this one from over there. Once you have a large enough codebase, even making a simple change such as changing a function name can span tons of and tons of code. Think of the size of the diff that would be required to change an extremely well used function in the Linux kernel? And all that is doing is changing a function name...

Re:User Friendly Laws

[cheekyjohnson]

No argument here, but that doesn't change the fact that it's there, and I have to deal with it.

Code is almost like a completely different language to people who don't know anything about programming, anyway. Or, at least, it can be. Legalese is not (even if they don't know some words).

Except when a Judge agrees that a potentially mistaken reading of the text agrees with the other party in an adversarial proceeding

Then the judge is wrong. It can't be helped. I don't think we need a ridiculous amount of redundancy because a judge might make a mistake.

How would you write it now?

Simplified. I would expect people to understand the basics of the language I wrote the contract in (and apparently the judge doesn't).

You would hope, but how does your new law interact with another law from over there, and this one from over there.

Well, there are many laws that seem to be a huge mess. Of course, I'm talking about a situation where they are all magically simplified at once (as much as is possible). And perhaps people would benefit from trying to understand some of the things that simply can't be simplified.

Re:User Friendly Laws

[snowgirl]

Simplified. I would expect people to understand the basics of the language I wrote the contract in (and apparently the judge doesn't).

Then, you're expecting the law to work completely different from how it actually does. Boilerplate contracts for one are interpreted against the drafting party for all ambiguities. Why? Because the drafting party drafted the contract, and so they could have written it to mean exactly what they wanted it to mean in the first place.

Re:User Friendly Laws

[cheekyjohnson]

I expect people to simplify it as much as possible. Ambiguities aren't solved through the use of repetition. And, if they are, then something is terribly wrong with how the contract/EULA/law was written to begin with.

Re:User Friendly Laws

[snowgirl]

I expect people to simplify it as much as possible. Ambiguities aren't solved through the use of repetition. And, if they are, then something is terribly wrong with how the contract/EULA/law was written to begin with.

I saw her with binoculars. I used a pair of binoculars to cut her in two.

vs.

I saw her with binoculars. Looking through a pair of binoculars, I obtained visual contact with her.

Re:User Friendly Laws

[cheekyjohnson]

I don't get it. The first one is just outright incorrect. That isn't redundancy or simplification.

Re:User Friendly Laws

[snowgirl]

I don't get it. The first one is just outright incorrect. That isn't redundancy or simplification.

"I saw her with binoculars" is a well-known ambiguity that people typically ignore, because it doesn't make sense. But it is syntactically a valid interpretation that becomes clear by following the same format with a different tool: "I saw her with a hacksaw."

This is the problem, most people don't realize how much ambiguity is actually in the speech that we use every day, because we don't think about ambiguity very often.

Re:User Friendly Laws

[cheekyjohnson]

Some words have multiple meanings. And? I'm pretty sure idiots will abuse the law no matter how redundant you make it.

As I said, simplify it as much as possible.

Step 2

[Anrego]

Several European countries are considering laws mandating user-friendly EULAs

While I think this is a great start, I think a better idea would be to take the common subset of clauses that both consumers and vendors can agree upon, and make them implied by law.

EULAs shouldn’t be an automatic, they should be an exception, for cases where something is radically different.

To an extreme, I don’t think that clicking “I agree” should even be legally binding. If you have some kind of special case, lawyers or at least something more substantial than clicking a button should be required. If your customers can’t be bothered, either learn to operate within the common set of agreed rules, or go into a different business.

Re:Step 2

[Zironic]

It isn't legally binding. Which is why noone bothers to take you to court over the EULA. They know they'd lose.

Re:Step 2

[HarrySquatter]

http://arstechnica.com/tech-policy/news/2010/09/the-end-of-used-major-ruling-upholds-tough-software-licenses.ars>O Rly? This is an oft-related but false meme perpetuated on slashdot. Specific EULAs have been held up in court a number of times. Now certain clauses in certain EULAs have been struck down but that is not the same thing you claim.

Re:Step 2

[Anonymous Coward]

It isn't legally binding. Which is why noone bothers to take you to court over the EULA. They know they'd lose.

Sadly, dead wrong. Clicking "accept" does indeed bind (at least here in the U.S.) you to the terms of the EULA. While you can try to invalidate any/all of the terms in court (e.g. on the basis of unconscionability), the default position is "you 'signed' it - you're bound."

IAAL

Re:Step 2

[Zironic]

Meh, you live in a messed up country, I don't. Swedish contract law contains a number of stipulations that EULA fails to uphold, so they're not valid contracts here. Instead most of what EULA covers is covered by the copyright laws.

Re:Step 2

[fsckmnky]

+1 I second this idea. EULAs arent going to go away ... but given their increasing ubiquity it would be nice if they were standardized, like the preprepared forms the county hands out to comply with standard procedures like evictions, small claims cases, etc.

This would ease the burden of dealing with EULAs while still protecting the property rights of producers, and use rights of consumers. The EULA would move from the obfuscated custom party-party contract to a standard disclosure / disclaimer.

Re:Step 2

[Bert64]

They, like many other "contracts" aimed at end users, are simply there to scare you into compliance...
Just because it has no legal weight, doesn't mean that a lot of people who don't know any better will feel compelled to comply with them.

Re:Step 2

[Anonymous Coward]

You can't even accept contracts over the phone in several european countries, let alone anything on the internet.

Re:Step 2

[bcrowell]

Interesting link. Thanks for posting that! I hadn't realized that music sold on Amazon had such a restrictive EULA, forbidding resale. Unfortunately Google's new service sees to have the same problem. Presumably they both have these terms because they were imposed on them by the record companies.

Re:Step 2

[Anonymous Coward]

Yep, none of these services would have any popular music selection without the restrictions. The mafia will not let you run a laundromat without giving them protection money, it's their territory bub.

Re:Step 2

[Mastacheata87]

In germany any contract can only be binding if you know the terms before you sign it.
When you purchase software in the store and are presented with an EULA after you already purchased it, that agreement is not binding to the customer.
EULAs for Download content might be valid for german customers though unless terms are diametral to general law.

Re:Step 2

[stephanruby]

Yes personally, I get tired of seeing licenses that make no warranty, no guarantees, and that want no liability, should their software fail. This is kind of a no-brainer for me, especially for free or consumer-level software.

I would also add that a company must provide the old EULA, the new EULA, and also an exact diff of any changes they make to it.

And that should a contract/EULA contain a clause that's illegal, or unenforceable, or for instance against fair use, at the time it was written, that the entire EULA becomes null and void (and that this would cause prejudice to the party who wrote the EULA in the first place).

This last idea would dovetail nicely with your idea. By making it legally riskier for companies to write complicated EULAs, then those companies would naturally gravitate to having no EULAs, or simpler standard EULAs instead.

Re:Step 2

[Darinbob]

It's not really a contract unless you can either negotiate the contract or get out of the contract. EULAs do not give you the right to negotiate the contract. However you _should_ be able to back out of the contract if you disagree with the provisions. The problem is that it is often cumbersome or impossible to do so; many stores or manufacturers will flat out refuse to give you a refund. When that occurs the EULA should be considered invalid.

Also provisions of EULAs may violate various statutes. For instance I don't think it's valid to require that the software not be allowed to run in a virtual machine as that is counter to fair use principles in copyright law (ie, 10 years in the future I may be running my current OS in a compatibility VM, ala dosbox). Similarly I don't think it's valid to prohibit "reverse engineering" since the user may need to do this in order to fix the software if it doesn't work or to make it work with certain drivers, or even to use a no-CD crack if the media becomes damaged. Being able to resell a purchased product is a fundamental right and yet this is the very thing that most EULAs prohibit.

Of course these sorts of restricted rights have been in software from nearly the beginning. Companies would require you use their operating system on their machines or they'd void your service contract, and you'd have to relicense the software annually. But on those early cases there were actual physical contracts that were signed and agreed to in advance; it was a racket but both sides entered into it with full knowledge. What's different with these shrink wrapped licenses is that very often the consumer does not know what rights they're giving up in advance, they may be stuck with a software that doesn't work, a DVD that doesn't play on their machine, etc.

Re:Step 2

[iamwahoo2]

In addition to copyright and general ownership, does german law provide developers, manufacturers or retailers with "usage rights" that allows them to control how their products are used?

Re:Step 2

[rdnetto]

If clicking 'I agree' wasn't binding, then how could you buy things online?
The real problem with EULA is that their terms are often excessive and unfair. This has been largely ameliorated in Australia, due to a recent law which grants a court the power to set aside unfair terms in consumer contracts (see http://www.freehills.com/5908.aspx).

Re:Step 2

[Mastacheata87]

That depends on what you sell. A product or only a license.
If it's only the license that's being sold than you can pretty much define what the user may do and what not.
There's an infamous case about oracle licenses and if they may be sold on the second market.
German court ruled that is not allowed since you do not buy the software, but only a very special license.

If you sell some physical work though (and in some cases a cdrom would be enough to qualify for that), the ownership goes over to the customer and he/she may do with it whatever he/she likes.

I hate EULAs

[weszz]

Here at work EULAs have become an INCREDIBLE pain in the past month... We not need everything we download to use approved that it is free for commercial use if the company didn't buy a license.

I can't use Virtual Clone Drive since the website says it's free, the developer says it's free, everyone says it's free but the EULA doesn't specifically say that.

I hate EULAs. (Plus an interesting note, RealPlayer apparently cannot be used in a commercial environment at all, or so says the EULA.)

Re:I hate EULAs

[HarrySquatter]

RealPlayer apparently cannot be used

And nothing of value was lost.

Re:I hate EULAs

[Anonymous Coward]

A) Why the fuck are you trying to use RealPlayer

B) RealPlayer can be used in a commercial environment, but the version you download off their website cannot be used for commercial purposes. If you want to use it for commercial purposes, you have to speak to them directly and get a version with a different license. Basically, you are free to use RealPlayer while sitting at your desk at work. You are not free to use the non commercial version of RealPlayer on a pay per view type kiosk where you charge someone to watch something on RealPlayer.

Truthfully, EULAs are not that complicated or hard to read, most people are just stupid.

Re:I hate EULAs

[weszz]

agreed. They also have a real nice uninstall routine buried in the Program Files folder.

Re:I hate EULAs

[weszz]

That's the way our EULA lawyer guy ruled on it for us (can't use), so that's the way we went. The concern was if someone showed a video of something through it to someone who we are charging for services, it could be in violation. (not that a normal company would go after another for that, but Real is pretty slimy... I worked for them doing tech support for a year when I used to live in Seattle. Thankfully as a non commission person I didn't have to trick people into staying subscribed to it)

The one that gets me is Virtual Clone Drive... The developer says it's free, everyone says it is, but since it's not spelled out in the EULA they could say it no longer is and you then owe them licenses... They told me in the next version it will be spelled out and they may offer a pro version.

Re:I hate EULAs

[niw3]

Truthfully, EULAs are not that complicated or hard to read, most people are just stupid.

Definitely. Last time I installed licensed copies of Windows 7 & MS Office 2007, for the first time, I fully read the EULAs, in my native language. Both EULA's were understandable. All terms were clear, I had no problems.

Re:I hate EULAs

[weszz]

Microsoft ones are different because they take their time.

Many small companies grab someone else's change some words here and there and toss it out sometimes saying nothing really.

In the situation I'm talking about, (free use in corporate environment) unless the EULA says it's free to use in that setting it doesn't work for us. Many don't mention licenses or being free at all, in which case there COULD be a required license somewhere...

Black and white EULAs are good, but most are grey.

Re:I hate EULAs

[Anonymous Coward]

That's the thing, most people aren't stupid, but the assumption that every person has spent enough time earning a law degree to be able to understand the most "basic" of agreements is stupid. That this kind of language is not taught prior to a formal, college education (where nearly all of the student body is capable of, and almost required to be, entering into the binding legal contracts that they have yet to learn anything about) is more a failing of the system that makes the laws. If there are laws requiring children to be educated, then why is there not also a component of those laws that requires teaching of the very language that comprise those laws. If it's such a requirement to understand the laws of the land in order to function in that land, why aren't the language and terminologies used actually taught in the government-mandated school systems? Why are the standardized tests completely ignoring this critical component of citizenship?

At the time the first laws were being written, the words used had specific meaning, and were also being used in everyday conversation with those meanings. The words were chosen because they were in common use at the time, and nearly everybody knew what they meant because of it. Yet today we still use those same words and definitions when we deal with new and existing laws, however the words and phrasing in common usage have changed significantly over time. We have created new words, and old words have taken on new definitions -- some meanings just "evolved" naturally (generally through the occasional accidental or humorous misuse becoming the everyday norm, "decimated" and "devastated" are now commonly used interchangably), and some were intentionally co-opted or redefined (at one time "gay" only meant "happy" and "a faggot" was "a bundle of sticks").

When you need a lawyer present to sign most physical contracts, assuming you actually don't want to get screwed over by the time you finish signing, you're already in a position where it is assumed you cannot understand the document without that level of targeted education. Go ahead, try to get a home loan without a lawyer, I dare ya... easily about 50 to 60 sheets of legal-sized paper that all basically boils down to "I promise to pay back the money you loaned me within 30 years. I will do so by making regular payments of X amount per month until it is paid off. I also understand that I will pay an additional, accrued compound interest of y% per-year (z% per month) based on the amount of principal and unpaid interest at the point of compounding. I understand that the amount of each payment is to go toward any accrued interest first, and then towards the remaining principal, in that order." See, I just saved several trees by putting the entire document into simple, plain English that actually leaves surprisingly little wiggle room in the whole thing.

If ignorance of the law is no defence, then when the general populace is (seemingly intentionally) made defenceless, then what is the purpose of the law beyone tirany?

Re:I hate EULAs

[WorBlux]

Something like the creative common symbols would be nice. Then you just splash some standard symbols on the screen and everyone knows what is expected.

Re:I hate EULAs

[MurukeshM]

Microsoft ones are different because they take their time.

Say what? https://randomascii.wordpress.com/2011/09/01/zune-eula-window-size-fail/

Oligopoly

[tepples]

Then don't sign contracts that have terms you disagree with.

So what should one do when all providers of an essential service have disagreeable terms? Join the Amish?

Re:Oligopoly

[bws111]

Reconsider what is 'an essential service', or reconsider what are 'disagreeable terms'.

Re:Oligopoly

[HarrySquatter]

And those essential services are what exactly? My water, electricity, etc services do not have EULAs. Last time I checked "software" was not an essential service.

Re:Oligopoly

[tepples]

My water, electricity, etc services do not have EULAs.

That's because they're usually tightly regulated franchised monopolies.

Last time I checked "software" was not an essential service.

Isn't Internet access essential to get and keep a skilled job in 2011?

Re:Oligopoly

[Anonymous Coward]

Except that, having bounced back to this conversation from another, I thought you guys were talking about broadband service.

Gives you a little perspective on the topic.

Re:Oligopoly

[HarrySquatter]

That's because they're usually tightly regulated franchised monopolies.

Maybe in your area but not mine. Regardless none of them make you agree to a software EULA so what's your point?

Isn't Internet access essential to get and keep a skilled job in 2011?

What does that have to do with software EULAs?

Re:Oligopoly

[HarrySquatter]

Broadband services don't have EULAs as you are not licensing software.

Re:Oligopoly

[Aryden]

There are EULAs attached to pretty much everything. For almost all ISP's you sign a contract which is a EULA. You have to use some form of software to access the internet, by doing so, you are agreeing to a EULA for that software. So unless you see the interwebs as binary data scrolling across your eyes, then being translated by your brain into images, you've agreed to a EULA.

Re:Oligopoly

[tepples]

You have to use some form of software to access the internet, by doing so, you are agreeing to a EULA for that software.

Technically, the Xubuntu operating system has no such license agreement. One is not required to accept the GNU GPL until one begins to make and distribute copies of the software beyond those copies permitted by copyright law. But you're right about ISP terms of service.

Re:Oligopoly

[element-o.p.]

But even if you choose to accept the liberal translation of Internet access as an "essential service", the post above did not state that you couldn't get essential services without requiring any EULA. It specifically stated "without a disagreeable EULA". You can always use a WiFi hot spot for your Internet access (I've never seen a EULA at the coffee shop I visit, although hotels typically have one) and If you can't find an agreeable EULA among the GPL v2, GPL v3, BSD license, the license(s) associated with OS X, or the venerable MS EULAs, you're probably being...well...anal.

Re:Oligopoly

[znerk]

Reconsider what is 'an essential service', or reconsider what are 'disagreeable terms'.

That's right, lower your standards.

Re:Oligopoly

[sjames]

In other words, go live in a cave or drop your pants and pull your ass cheeks wide open? No thanks, I'd prefer a legal reform.

The best EULA I ever agreed to

[liquidweaver]

When I bought IDA Professional, in the EULA it explicitly spelled out several things:
1.) I an install it on any machine I own
2.) I can make backups
3.) I can reverse engineer the software
If only the rest of the world worked that way. They trust their users - and it inpires a level of respect, at least with me, where there is absolutely no chance I would share a copy.

Re:The best EULA I ever agreed to

[hb79]

I'll top you with this. Luckily, the GPL has traditionally not been splashed in-your-face in most applications. Annoyingly, Android apps with GPL licenses seems to reverse that trend. I wish they would stop.

Free software is a matter of the users' freedom to run, copy, distribute, study, change and improve the software. More precisely, it means that the program's users have the four essential freedoms:

• * The freedom to run the program, for any purpose (freedom 0).
• * The freedom to study how the program works, and change it so it does your computing as you wish (freedom 1). Access to the source code is a precondition for this.
• * The freedom to redistribute copies so you can help your neighbor (freedom 2).
• * The freedom to distribute copies of your modified versions to others (freedom 3). By doing this you can give the whole community a chance to benefit from your changes. Access to the source code is a precondition for this.

See also:

http://www.gnu.org/philosophy/free-sw.html

Re:The best EULA I ever agreed to

[gr8dude]

Here's another one that follows the same principles: http://dl.dropbox.com/u/3258602/screenshots/Screenshot-SIMple-EULA.png

I wrote it myself, if you scroll to the end, you'll find an Easter egg, something in the lines of "now you can tell your friends you've actually read a EULA" :-)

Re:The best EULA I ever agreed to

[liquidweaver]

Nice. I'll have to check out your SIMple software, although I'm going to come right out and say you didn't pick a very google friendly name :P

Re:The best EULA I ever agreed to

[MurukeshM]

Indeed GPL tops IDA's license. You don't even have to accept the GPL for using GPLed software.

While they're at it ...

[rjmx]

How about a law that requires a company changing its terms of service to tell you exactly what the changes are and how they affect you, rather than simply saying that they've changed them, with a link to the new version (and a fat lot of good it'll do you, too)? Back when I had a PayPal account, that was one of the most annoying things about them.

Re:While they're at it ...

[Hentes]

We already have that. For example, whenever a bank modifies the contract they have to send a letter detailing the modifications.

EULAs != Contracts

[tiberus]

A EULA is a form of 'contract' but, I always though contracts implied some form of negotiation, not just blind (enforced, un-yielding, etc. etc.etc.) acceptance. Who's negotiating for us? At work, our Contracts Department can ask a vendor to change a EULA and there's a chance it will happen but, good luck calling up XYZ Corp and saying, I'd feel better if Clause 4.3.1.2 said foo instead of bar...

Re:EULAs != Contracts

[HarrySquatter]

I always though contracts implied some form of negotiation

Since when? Contracts imply no such thing. A contact is still valid without any negotiation.

Re:EULAs != Contracts

[Anonymous Coward]

A contract is a meeting of the minds. A written contract is physical documentation of that meeting of the minds

  An EULA is a meeting of the company's mind and your mouse cursor over the ACCEPT button. Therefore, it is not, in fact, a contract.

Re:EULAs != Contracts

[Nemesisghost]

Actually, contracts are a negotiation. I learned that when I signed my latest lease from my roommate who was studying for the Texas Bar exam at the time. He told me it was perfectly legal to cross out parts of the contract I didn't like before I signed it. Then if the other party didn't like the changes I made, they could draw up a new contract for us to sign. And we'd go back & forth until we were both happy with the arrangements.

Now, normally the contract is pre-agreed upon before the parties come together to sign it, especially in the case like this. I don't think most people are aware of this, and so wouldn't know what to do if a lessee decided to start crossing out parts of the lease agreement.

Remember that a contract is supposed to outline the rights and obligations both parties have in the arrangement, not to take away rights from one person or another. In the case of a lease, the lease protects the lessee as much as the lessor.

Re:EULAs != Contracts

[bws111]

You missed an option. Instead of going back and forth, either party can say 'this is my final offer, take it or leave it'. That is what the 'disagree' button is for. The EULA is their final offer. Take it or leave it.

Re:EULAs != Contracts

[HarrySquatter]

Great but the case law is against you, if you're in the US at least, so your opinion means dick.

Re:EULAs != Contracts

[Archangel Michael]

Which is why, you should find the EULA in the installer package before you install it, modify it any way you wish, and THEN agree to the EULA when it is presented. If a EULA is enforceable at all, then you should be able to modify it before agreeing to it.

http://xkcd.com/501/

Re:EULAs != Contracts

[bws111]

Of course, since the other party did not agree, and did not even have the opportunity to agree or disagree, that action is completely meaningless and is pretty much fraud.

Re:EULAs != Contracts

[Archangel Michael]

Their automated program agreed for them. They agreed, they just don't know they did.

Re:EULAs != Contracts

[Anonymous Coward]

Actually, they did agree, by allowing my use of the software when I agreed to the modified contract. If that's not their admission of agreement, then the clicking of the "I Agree" button is also completely meaningless and is pretty much fraud. It's not my fault that they didn't build in the ability to detect changes to their contract and provide their own new version in response to my changes.

Re:EULAs != Contracts

[Carewolf]

Since when? Contracts imply no such thing. A contact is still valid without any negotiation.

Nope. If a contract can not be negotiated it is not valid. Never fall for the "the contract is not up for negotiation" trick. It is inherently a lie, since it wouldn't be a contract if you could not negotiate it.

Re:EULAs != Contracts

[iamwahoo2]

But sticking a poison pill in your product to make it unusable to the owner who does not agree to a contract presented after the time of purchase is not fraud?

Re:EULAs != Contracts

[Anonymous Coward]

A EULA is a form of 'contract' but, I always though contracts implied some form of negotiation, not just blind (enforced, un-yielding, etc. etc.etc.) acceptance.

What you are talking about is, in US legal terms, a "contract of adhesion". Yes, it is still a contract, but the law treats it slightly differently. In a nutshell, the law slightly favors the party that did not get to define the terms.

Also, you won't find a decent lawyer that ever reads EULAs...it's not worth their time to do so. If there happens to be any terms in the EULA that they didn't expect, they will challenge it under the "unconscionability doctrine". If everything in the EULA is what they expect, then they don't need to read it.

Re:EULAs != Contracts

[Anonymous Coward]

Funny, I didn't agree to anything on my Windows OEM installation. I simply flipped the ON switch.

Re:EULAs != Contracts

[sjames]

Too bad for them they already accepted your money in a sale. They should have presented the EULA and gotten your agreement before the transaction completed. The landlord doesn't get to come back a month after you move in and demand you also agree that he can use your apartment as a whorehouse on alternate Tuesdays.

Of course they don't have to suck...

[orthancstone]

But why would they want to tell you how they are screwing you in plain language when they can bury you in legalese?

SUCKS TO BE A LAWYER!!!

[spads]

:D

Re:SUCKS TO BE A LAWYER!!!

[m.ducharme]

Hahaha, you think so? Despite what many people think, a large part of a lawyer's job is figuring out (and fighting over) what people actually mean when they write agreements, legislation and the like in "clear, easy to read" language.

Drafting contracts and laws is a lot like programming; language that is clear and easily readable may not be the most powerful or effective language to use. "Plain language" languages are easy to use, but hard to do anything useful in. Those that are useful usually have a great deal of planning (and a more powerful programming language) hidden away from the user. Likewise with contracts.

Simple agreements help the parties know what they are agreeing to, but generally don't say anything about edge cases. So your nice simple one-pager, if it's a contract, is perfect when the parties are getting along, but if the relationship deteriorates it's trivial to get around that kind of contract by finding an edge case the contract doesn't cover and slipping out of it. That's when the litigation lawyers are brought in.

I'm sure that this push to simplified EULAs in software is going to make some lawyers very rich, when the companies that offer them start weaselling out of their clear, simple agreements.

Televisions with EULAs

[MetalOne]

I returned a Sony TV partly because the EULA said I had to indemnify Sony if I violated the EULA or was even alleged to have violated the EULA. I didn't want to deal with possibly being on the hook for million dollar lawyer fees. I know that the chances of Sony getting sued because of my actions would probably be nil, and two it would be thrown out of court as unconscionable, but still, I thought the indemnify clause was crazy. This indemnify clause also said Sony would have to approve of any lawyers involved. Additionally the TV came with Yahoo widgets, and the EULA for Yahoo widgets said the license was non-transferable. I assumed this to mean that selling the TV would violate the EULA. The EULA required arbitration for any disputes. The entirety of the EULA gave Sony all the rights and the user none. Well, the TV that I exchanged it for looked better anyway, so it was a win win for me.

Re:Televisions with EULAs

[starmonkey]

If you recall, please share the TV brands without unacceptable EULAs. I'm looking to buy a TV.

Re:Televisions with EULAs

[antdude]

Are there any new TVs that don't have EULAs? Ugh.

Re:Televisions with EULAs

[MetalOne]

Well, I did not set out to read EULAs. I ended up with a Samsung. It also has a EULA, but it was short and acceptable to me.

Re:Televisions with EULAs

[Raenex]

I canceled my Playstation Network account and sold my PS3 because of a EULA update in April. Many pages of EULA bullshit that you had to agree to, and I just got sick of it. It was the final straw after all the thuggish Geohot nonsense.

If we keep on agreeing to these EULAs they're going to keep on shoveling them down our throats.

Re:Televisions with EULAs

[starmonkey]

Thank you for your response.

Re:Televisions with EULAs

[KeithIrwin]

Yeah, I read my license agreement for my Samsung TV and was content with it, too. It wasn't actually technically that short because it included the GPL and the BSD license, but the parts other than that were quite short and reasonable.

Thanks for returning your Sony based on a bad EULA. If more people returned TVs because of unacceptable EULAs, the TV makers would cut that shit out.

Re:Televisions with EULAs

[Anonymous Coward]

I wasn't notified of any EULA during the installation and set up process for my Samsung TV. I suspect there may be one, but as I haven't indicated agreement to it, I don't believe there's any way it can be applied to me.

If you have to scroll

[Oswald McWeany]

Oswald's rule of EULA:

If you have to scroll the EULA is no good and few people will read it.

Re:If you have to scroll

[Java Pimp]

The other day I was updating some apps on my daughters iPod and a message popped up that the EULA had changed and I had to accept the new terms. After scanning over the first page I got to the bottom that said page 1 of 63... This of course brought out the "laugh of disbelief" followed by "whatever" and a prompt click on "Agree".

Re:If you have to scroll

[Oswald McWeany]

You do realise that Apple now own the naming rights to any household pets you aquire in the future and you must now name all of them "Steve".

- and that's not even the strangest thing hidden in that EULA.

Re:If you have to scroll

[Anonymous Coward]

Agreed. Postage EULA windows seem to be the developers saying that they don't want you to read their EULAs. I think a judge could probably be convinced that they are invalid if developers don't make a reasonable effort to make the EULA readable.

http://randomascii.wordpress.com/2011/09/01/zune-eula-window-size-fail/

Re:If you have to scroll

[gl4ss]

apple, making an annoying popup of eula.

(if itunes updates.. it asks you to confirm the eula.. you press decline.. wait 20-30secs. and it asks again.)

Re:If you have to scroll

[Anonymous Coward]

Why you don't have to scroll through my EULA, for it is available in 1pt pico-font, and for people with a screen smaller than 372", as a nice pre-unrolled printing-plant-size roll of paper.
No scrolling needed whatsoever. It's perfectly readable, provided you can read Hong-Hing-Ping-Pong-dialect 13th-century Mandarin 4D-character scripture.

Re:If you have to scroll

[Jaxoreth]

if itunes updates.. it asks you to confirm the eula.. you press decline.. wait 20-30secs. and it asks again.

But thou must!

Turbo Pascal for Macintosh circa mid-80s was okay

[Anonymous Coward]

It's licensing agreement was basically "treat this like a book."

They actually used those words in the agreement.

Comment Summary: EULA Summary's Would be Nice

[kf6auf]

I don't know why no one includes summary's at the top of EULAs. It's not like it's that hard of an idea to think of and I've yet to hear a single objection (though I'm sure /. can help with this). No one is actually saying you can't have pages and pages of precise details spelled out in pages and pages for the lawyers.

By the way, this is suggested on page 2 of the article for all of you who either didn't read the article, or refuse to bother going to page 2 of an article that has no reason not to be on a single page.

Re:Comment Summary: EULA Summary's Would be Nice

[Stalinbulldog]

Well a EULA summary would just make things more complicated, either it would be just as long and explain everything the EULA did, or it would have no legal bearing and companies could put whatever they wanted in it.

I, personally, wouldn't mind being re-compensated by companies for the length of their EULAs, but that is just a feeble token gesture that customers would end up paying for anyways.

Re:Comment Summary: EULA Summary's Would be Nice

[m.ducharme]

I can think of one objection: what happens if there's ambiguity between the summary and the mass of technical detail below it? If the summary is binding, then you will inevitably get conflicts in interpretation between the summary and the particulars, but if it's not binding, you still have to read the whole damn thing anyway, so why muddy the water with a summary you can't rely on?

Now as it happens I think it's still worthwhile to use a summary (indicate that the summary is to be used to resolve ambiguities in the more detailed drafting, but not binding in itself), but you do have to tread carefully.

Re:Comment Summary: EULA Summary's Would be Nice

[Anonymous Coward]

If there was a summary, people might actually read it. The writers of EULA's really don't want them to read: they want people to click "I agree", then be legally held to whatever arbitrary clauses they've written.

Re:Comment Summary: EULA Summary's Would be Nice

[rdnetto]

A summary would be legally binding, and would have the effect of limiting the contracts terms to those consistent with the summary. [see Curtis v Chemical Cleaning and Dyeing Co] This is why they're generally avoided by lawyers - they don't want to take the risk of any inconsistency.

IMO, the EULAs demonstrates a deeper problem - even if you 'buy' software, you still have to agree to the EULA in order to receive a license to use the software. The licensing and purchase should be inseparable. (There is also the question of how a EULA satisfies the issue of consideration - see http://www.lawiki.org/lawwiki/Shrink-wrapped_licence_agreements:_the_UK_legal_position).

(I am an Australian law student, this is not legal advice.)

Re:Comment Summary: EULA Summary's Would be Nice

[gl4ss]

for shrink wrapped and website sold goods it would be very simple.
the eula should be printed in it's entirety on the package or the about page on the site you'd be ordering from.

Re:Comment Summary: EULA Summary's Would be Nice

[m.ducharme]

A summary would be legally binding, and would have the effect of limiting the contracts terms to those consistent with the summary. [see Curtis v Chemical Cleaning and Dyeing Co] This is why they're generally avoided by lawyers - they don't want to take the risk of any inconsistency.

Unless the agreement contains a clause contracting out of the binding nature of the summary. Which would be what I would do if I didn't want to be bound by the summary but wanted to use one anyway. Which isn't to say that I would.

Re:Comment Summary: EULA Summary's Would be Nice

[m.ducharme]

Fantastic. I can write one right now. "All rights reserved by the seller. The buyer acknowledges that he gives up all rights to the software, except for his own personal use on one computer."

As I've argued elsewhere, the real problem with EULAs isn't that they're too long and complicated, it's that they're contracts of adhesion. Everyone knows that a 60 page EULA means "you're fucked", no need to hire a lawyer to tell you that.

Re:Comment Summary: EULA Summary's Would be Nice

[rdnetto]

The legal term for that is 'entire agreement clause'. i.e. the entire agreement is contained within the written contract, and no other representations can be included. While this is slightly less clear-cut, that wouldn't hold up in most cases either. Curtis (or modern applications of it) function via estoppel, which prevents the vendor from exercising their rights where it would be unconscionable to do so. (Estoppel is part of the law of equity, which evolved specifically to prevent the common law, which contract falls under, from being abused to effect unjust outcomes.) The unconsciousness is the grey area - where a reasonable person in the position of the plaintiff would have been expected to read the EULA in full, estoppel won't be made out. (see Butcher v Lachlan Elder Realty, where reliance on inaccurate information in the presence of a disclaimer was insufficient to found a claim in estoppel, given the value of the transaction. i.e. it was a house, not merely a piece of software).

Once again, this is not legal advice.

Re:Comment Summary: EULA Summary's Would be Nice

[m.ducharme]

Sorry, I don't recognize your cases. I'm an articling student in Canada, so it may be that your cases don't control here. I would say though that I could still find a way around Curtis, as you've explained it. I'm not suggesting an entire agreement clause as the solution, I know what that is, and know what the weaknesses of it are. What I'm saying is that two parties, if they're determined, can contract out of the situation where a summary would be binding. The best way I can think of would be wording right at the very top of this page saying "This summary is not binding, but for information purposes only." It would be hard for one party to rely on the binding nature of the summary, if that wording were in the summary itself. For added clarity, I'd confirm it as the very first clause of the "binding" part of the agreement. Unless the term itself were unconscionable, by its nature, I don't think a vendor would be estopped from using it. A reasonable person would be expected to understand that if the summary (which is included for simplicity and clarity, mind) stated that the summary existed for convenience only and didn't represent the terms of the contract.

Re:Comment Summary: EULA Summary's Would be Nice

[rdnetto]

The thing is, that pretty much mirrors the situation in Butcher. There was a disclaimer similar to what you suggested, and it was held to apply only in cases of high value transactions, since it would be unreasonable to expect the reasonable person to read the fine print on everything. (Although now that I think about it, I think Butcher may have be founded on a statutory claim, rather than estoppel. But misrepresentation is a pretty well established area, so I assume Canada has it's own laws on that point.)

Butcher is an Australian case, and a recent one at that, so it wouldn't surprise me if Canadian law was unclear or divergent on that point. But Curtis was a British case, so I'd have thought it would still apply.

Citations: (I really should have included these before)
Curtis v Chemical Cleaning and Dyeing Co [1951] 1 KB 805
Butcher v Lachlan Elder Realty (2004) 218 CLR 592

Re:Comment Summary: EULA Summary's Would be Nice

[m.ducharme]

House of Lords cases haven't been binding precedent in Canada since the 1950's, though they are persuasive. On top of that, Canadian contract law is closely tied to US law, and for that reason tends to come down pretty heavily on the side of protecting contracts between parties. I would say that the Delaware Court of Chancery is probably given more weight by the Supreme Court of Canada than anything coming out of the House of Lords, these days.

EULAs haven't been litigated very far in Canada, the leading case is an Ontario Superior Court decision, Rudder v. Microsoft Corp. [1999] O.J. No. 3778 (Sup. Ct. J.), in which Winkler J. ruled that reading the EULA was no different than reading a contract, and you had every chance to decline the agreement before clicking "I Agree." And that was with the full, nasty, complicated EULA with no summary. If you had a "clear language" summary at the top, binding or not, I don't think it would have helped the plaintiffs in Rudder.

I doubt that they would hold up in a court

[wisnoskij]

I doubt that any EULAs would hold up in court.
Everyone knows that you are not supposed to read them and most of them are several pages long.

They are a joke and no one takes them seriously, for example: I have agreed to EULAs that told my not to do drugs.

Re:I doubt that they would hold up in a court

[Anonymous Coward]

There has yet to be a single EULA tossed out of court in the US, so precedent shows that no matter how Draconian they are, they are binding...

Re:I doubt that they would hold up in a court

[bws111]

Since they already have been upheld in court, you are wrong.

Re:I doubt that they would hold up in a court

[russotto]

There has yet to be a single EULA tossed out of court in the US, so precedent shows that no matter how Draconian they are, they are binding...

Try Softman v. Adobe.

Anyway, EULAs totally fail as contracts. There's no real offer; what the EULA purports to offer is what you already have, the right to use your own property.

There's no real acceptance, since the user typically just presses whatever buttons get him past the EULA to get to use his software... and defenders of the EULA like to argue that the EULA holds even if the user indicates his NON-acceptance by hacking around the "agree" screen. It's as if the company put a guard on my computer room door demanding I agree to their terms before they allow me to pass, and somehow I'm bound even if I sneak past him or shove him out of the way.

And, there's no consideration on the part of the perpetrator of the EULA, again because the copy of the software already belongs to the user; he doesn't need the copyright owner's permission to use it.

Re:I doubt that they would hold up in a court

[cfulmer]

In the US at least, EULAs are regularly enforced in court. If you are presented with a EULA and push a button that says "I Accept," then you have accepted, whether or not you actually read the EULA. http://www.internetlibrary.com/publications/cwahe_art.cfm

Re:I doubt that they would hold up in a court

[jones_supa]

They are a joke and no one takes them seriously, for example: I have agreed to EULAs that told my not to do drugs.

What kind of software was that? Maybe some medical application that wants the user to be sharp?

Re:I doubt that they would hold up in a court

[wisnoskij]

No just a small independent developer being funny.

Re:I doubt that they would hold up in a court

[gl4ss]

and they usually take away even the expectation that the sw might work.

and the right to examine the software to see if it even _could_ do what's stated on the box.

Give me a contract to sign

[Teun]

Give me a proper contract to consider and maybe sign or don't bother me.

As the article says something about European countries I'll limit myself to that subset of humanity.

Most European countries should explicitly invalidate Eula's as a legal and binding contract, as a matter of fact I don't think many countries or courts in Europe would even consider them as such right now.
There are some countries that already have stipulations about the readability of consumer contracts and according to the issuers the Eula is such.

Plus the EU law gives you the explicit right to return any product bought over the Internet within a 7 day grace period.

Re:Give me a contract to sign

[snowgirl]

Give me a proper contract to consider and maybe sign or don't bother me.

I feel the same way about everything I purchase. That $0.99 candy bar? I want to sign a real pen-and-paper contract; I mean if you're so lazy that you fall back on implied verbal contracts, then why bother me? I'm happy to leave you and go get my candy bar from someone who cares enough to sell out even the most mundane of contracts in ink, with signatures, and lawyers.

Re:Give me a contract to sign

[Anonymous Coward]

Give me a proper contract to consider and maybe sign or don't bother me.

I feel the same way about everything I purchase. That $0.99 candy bar? I want to sign a real pen-and-paper contract.

Don't pretend that explicit legal terms were the only option.

Re:Give me a contract to sign

[Anonymous Coward]

If I understand correctly (IANAL, but AL once gave me an explanation) in the Netherlands a EULA doesn't come into play as long as you use software for its stated purpose. If you buy an office suite, and you use it as an office suite, legislation decides what your rights are, not the EULA. The EULA only matters when you use the software in ways that deviate from its stated purpose (reverse engineer it, give copies to friends).

In this way you get the rights you can reasonably expect when you buy software, without having to worry about surprises with licenses you only get to see until after you bought the product. I think that's an elegant way to handle it. I have no idea how this works out with cloud services, however.

Re:Give me a contract to sign

[Teun]

You understand it quite correctly, the EULA has about zero standing, "what can reasonably expected" is a general consumers right.

The bit about non-standard use will need more legal scrutiny.

Government intervention != win

[Pionar]

Do we really want government saying what the EULA should be? I wouldn't want that as a developer, and not as a user, either. It's called reading. If you don't like it, don't use the software. Simple as that.

I don't want the government telling me what kind of legal agreements I can enter into.

48-page EULAs

[Anonymous Coward]

I think most I come across are about that length. I'm not certain, but I think the iOS 5 EULA might have been that length. That would take, you know, an hour or two to read, which is rather unreasonable.

Re:48-page EULAs

[MurukeshM]

An hour or two to read is nothing. The pain lies in trying to understand it all, looking for gotchas. Meh, every time I see an EULA, I'm reminded of the Foundation. I haven't read it in a long time, but I think a situation goes like this: Representative of the Empire comes, spews BS and leaves. A thorough symbolic analysis of the crap is needed to convince the Encyclopaedists that the Empire will do precisely fuck-all for them, whereas a symbolic analysis of the communication from one of the Four Kingdoms tells them that we will have you, and there is precisely fuck-all that you or the empire can do about it.

EULA suck because they exist

[ArhcAngel]

For enterprise class software and systems licensing makes sense but telling an end user they do not own a product they paid for will get you horse whipped, tarred and feathered. The average end user doesn't understand the concept but if you tried to license a car to them and then showed up one day and tried to take the car away because they modified it in some way that violated the license they would bust you up. If more average users understood (and cared) about what that EULA meant we'd see some occupy EULA protests.

What bugs me about EULAs...

[JustAnotherIdiot]

...and the reason i stopped reading them is because there is NOTHING you can do about it if you disagree outside not using the program.
Say you don't like a clause in it and call up the company? You're just going to get laughed at and have them hang up.
Not to mention the only person who really even knows what's in it is the lawyer they hired.

Re:What bugs me about EULAs...

[jones_supa]

That is indeed quite interesting. I figure that as a normal person the proper way to act is simply to not give a shit about EULAs if you want to live a normal life. Corporate world is a bit different, then.

We don't need EULAs at all

[HalAtWork]

We already have laws to cover most of the things EULAs are concerned about, making EULAs superfluous. The rest just is contradictory to existing laws and is unenforceable, so it doesn't apply. Not to mention that it's a one-way contract (in that you can't redact, as you can with normal contracts), so maybe it's illegal in and of itself. I'm glad I don't use software that has EULAs.

Why should it be illegal?

[Anonymous Coward]

Don't work for a company if you don't like its rules. It's called liberty. Start your own company or stop whining. That's also called liberty.

No go ahead, mod this "-1, I disagree with you."

Re:Why should it be illegal?

[Lockyy]

Yes, that's perfectly feasible in every situation. Just turn down that job you desperately need to live. Start a company in a situation where you really can't. Even my university had a clause upon joining about them owning any IP I create. It's getting absurd.

Speaking of which...

[Twinbee]

Software EULAs can be just as irritating. But this link nicely demonstrates how things should be done:
http://lawactually.blogspot.com/2011/10/thats-interesting-approach.html

It should be the same idea to prevent all suing in the US. 'Everything's at one's own risk' etc.

People own corporations

[unassimilatible]

"Now all we need is a good government to define "public interest" to be in the interest of the actual public of the people, not the corporations."

As one of the 50% of Americans who own stock in corporations, I wish you'd learn about them and who owns them. The corporations are the people, or at least a large number of them. People who think there's more to earning a living than someone sending you a paycheck - then complaining about it.

Re:People own corporations

[Aryden]

The company is NOT a person, the people working there are. Yet, the government has seen fit to give corporations the rights of the individuals. I think you will find, as I have, that most people really don't give a shit about the corporation other than keeping it going so that they can do what they like to do and/or get paid. And yes, I own stock in quite a few companies.

I will complain until something is actually done about it

Also, you are completely clueless if you think your paltry 1000 odd shares of stock in any major corporation actually means anything. It means nothing to them. Apple has roughly 929,000,000 shares of stock. hell, even if you owned 1,000,000 shares (valued at 329M), you would still only own .001% of the company. So no, you are most definitely NOT the corporation. It's a rolling juggernaut pressing it's agenda on anything in it's way until it get all that it wants, then sets new wants.

Re:People own corporations

[OutSourcingIsTreason]

People also own cats so by your logic the cats are the people.

Re:People own corporations

[Raenex]

As one of the 50% of Americans who own stock in corporations, I wish you'd learn about them and who owns them.

Who owns them? The CEOs and board members who pay themselves exorbitant salaries, regardless of their performance and the huge supply of people qualified for their positions (pretty much anybody in upper management). A doctor responsible for lives and has been trained for years to do his job gets paid less, but we are to believe that these foxes guarding the henhouse are worth millions of dollars?

The corporations are the people, or at least a large number of them. People who think there's more to earning a living than someone sending you a paycheck - then complaining about it.

Are you talking about stockholders who sit on their asses and hope the stock price rises?

Re:People own corporations

[sjames]

Public interest does NOT mean just the stockholders/negligent absentee owners letting their pit bull bite the neighborhood kids.

It would be OK if the corporations were the people, but they're not. They are independent legal entities with no moral compass.

Besides that, restricting contracts to be in the public interest in no way makes corporations disappear. There's plenty of room for a legitimate business to make money without unfair contracting.

The Attack Shark!!!

[Dogbertius]

Not all of them are bad. HavenTree did a humorous one some time back:

Text of software license
This is where the bloodthirsty licensing agreement is supposed to go, explaining that Interactive Easyflow is a copyrighted package licensed for use by a single person, and sternly warning you not to pirate copies of it and explaining, in detail, the gory consequences if you do. We know that you are an honest person, and are not going to go around pirating copies of Interactive Easyflow; this is just as well with us since we worked hard to perfect it and selling copies of it is our only method of making anything out of all the hard work. If, on the other hand, you are one of those few people who do go around pirating copies of software you probably aren't going to pay much attention to a license agreement, bloodthirsty or not. Just keep your doors locked and look out for the HavenTree attack shark.

Text of disclaimer
We don't claim Interactive EasyFlow is good for anything -- if you think it is, great, but it's up to you to decide. If Interactive EasyFlow doesn't work: tough. If you lose a million because Interactive EasyFlow messes up, it's you that's out the million, not us. If you don't like this disclaimer: tough. We reserve the right to do the absolute minimum provided by law, up to and including nothing. This is basically the same disclaimer that comes with all software packages, but ours is in plain English and theirs is in legalese. We didn't really want to include any disclaimer at all, but our lawyers insisted. We tried to ignore them but they threatened us with the attack shark at which point we relented.

Re:The Attack Shark!!!

[Guidii]

Trivia: I used to work there. They really did have an attack shark. Always gave my kids nightmares....

and this saves money how?

[bussdriver]

So... when involving lawyers to find edge cases and holes in the agreement, how does it save you money if most contracts have minor or major issues resulting in costly legal disputes? Unless you have a perfect iron-clad legal agreement some lawyer properly motivated ($$$) will find a way to cost you money disputing it. If you are small, a mega corp could likely tie you up in court until you are broke even if you have the perfect contract agreement and would win in the end.

Re:and this saves money how?

[m.ducharme]

Well, I have no numbers to back up a claim, so keep your salt grains handy, but from what I've seen, money spent up front on lawyers tends to save you money down the road on more lawyers. What having a good agreement does is makes it more expensive down the road to try to break the agreement. The harder your lawyer has to work to find a loophole in the contract, the more you have to pay her. The more you have to pay her, the stronger your incentive to simply fulfill your side of the bargain.

If you are small, a mega corp could likely tie you up in court until you are broke even if you have the perfect contract agreement and would win in the end.

This is a different problem. This problem arises when one bargainer has much more power than the other. In that case, it doesn't matter how clear and simple or complicated and tight the contract is, the party with less power is going to get screwed. The EULA could be 60 pages long, or it could say "We reserve all our rights and you give up all your rights." Very simple and straightforward, and the consumer is stuck with it because they need the software.

People don't click through EULAs without reading them because they don't understand the EULA, they click through the EULA because they know damn well it means "you're fucked if you try to mess with us" and they think they have no choice. Nobody needs a lawyer to tell them that.

EULAs?

[djh2400]

Seriously, there are still people who click through EULAs? I've long since offloaded that to my feline friends.

They have their voices

[Quila]

They don't get a second voice as part of a corporation.

Corporations exist at the will of the state, thus at the will of the people. Supposedly this should be under the terms the people find beneficial to them. However, since the corporations have gained an independent voice in government as virtual people, the terms are now what is beneficial to the corporations, not the people.

EULAs are thorny.

[MobyDisk]

EULAs are thorny.

Suppose I work for a company and the IT department installed a piece of software on that computer. Must I abide by the EULA?

Or the reverse: Suppose I install a piece of software, must the company abide by the EULA, or just the individual? What if the EULA states that the publisher can remotely access my workstation or use our company trademarks in their promotional materials? The individual installing and using the software probably doesn't even have the power to make those decisions. So do they apply?

What if a minor installed the software?

Re:EULAs are thorny.

[Anonymous Coward]

...What if a minor installed the software?

A drive should be started to ban minors from purchasing, acquiring, and/or installing software because it requires one to agree to a contract. Only kidding of course, but such a drive might highlight the ridiculousness of these EULA's, although I fear that it would only give the idea that they are more enforceable against adults.

How is granting corporations control liberty?

[Anonymous Coward]

Have you noticed that your idea of liberty is to allow corporations to take your rights?

The Virgin Digital EULA was at least fun to read.

[Spikeles]

At least some people have a sense of humor when writing them.

You should have negotiated. I did.

[Anonymous Coward]

You should have insisted on negotiating that contract. I did, in several similar situations. The company was not happy, but ultimately they accommodated me. (I did have to get a lawyer involved to demonstrate that the way I read the contract was legally plausible -- the company was insisting it didn't say what it very plainly said. Ultimately, the company signed a document that stated their interpretation of the contract, which my lawyer said would likely protect me if there was an issue.)

Jobhunting is expensive for companies too. They don't want to go to all of the trouble of finding the best candidate and then losing him because of an issue that is unlikely to result in any financial gain for themselves. You can negotiate anything that they ask you to sign, and have portions added, struck out, etc. You just have to be friendly, accessible, and clear about what you are doing and why.

Reject the EULA

[HeavenlyWhistler]

Remember that the EULA covers the software within the TV, not the TV itself since the TV is sold, not licensed. I would have simply written Sony a letter stating that (1) no, I don't agree to the terms of the EULA; (2) I bought the television, I own it and will not return it; (3) I will not intentionally use "the software", (4) but I intend to use the television to make use of all the advertised features of said television, and if you implemented those features in software rather than firmware, tough shit, and (5) suck it.

I found a EULA at http://www.docs.sony.com/release/Flyer_4138171111.pdf, is this what we are talking about?

Re:Reject the EULA

[MetalOne]

This was not the EULA that came with my Sony. There were two separate EULAs. One for the Sony software, and one for the Yahoo Widgets. A quick internet search did not turn up either of the exact EULAs presented by the TV.

The checkbox, why?

[gr8dude]

I have a question about the checkbox in installers. What we usually see is an unchecked "I agree" and "Next" is clickable only when the checkbox is ticked.

I teach a course about designing software, some parts of the course are about distributing applications. I also sell software for a living.

This week I held a class in which I discussed installers and the user experience of the installation process. My advice was to remove unnecessary steps: drop the checkbox and rename "Next" to "Agree and continue" (or something similar). The rationale is very simple - reduce the number clicks, bring people closer to their objective.

Here's a EULA I wrote for one of our products: http://dl.dropbox.com/u/3258602/screenshots/Screenshot-SIMple-EULA.png (used on http://sim-reader.com/ there is a checkbox, but it is for customizing the installation settings, it is not related to the agreement. Here's another example, just a "Next" button: http://dl.dropbox.com/u/3258602/screenshots/Screenshot-Private-Disk-EULA.png

This is based purely on common sense and personal experience with other programs. Reason tells me that "Next" won't turn self-aware and click itself, thus if it was pressed - it was a conscious decision of the person using the computer.

However, the rest of the world relies on that checkbox... Am I missing anything? Is there some legal loophole that the checkbox covers? Is there a reason to do this, other than "everybody else does it"?

Re:The checkbox, why?

[gl4ss]

the point of the check box is to use that as extra proof that you really accepted the binding legal contract you just read. nothing else.

what's stupid about eulas is that quite often the person using the software isn't the guy who installed it and accepted - and quite legally.

MISSING. THE. POINT.

[Anonymous Coward]

How 'bout we just tell the manufacturer 'hey, just sell the stupid thing. Release all of YOUR rights when you take the purchaser's money and SUCK IT THE HECK UP!'
No?
Why am I not surprised. Until that day comes I will consider the contracts null and void upon my tearing them up or their disappearing from the screen.
Case Closed.

Re:MISSING. THE. POINT.

[Scarletdown]

How 'bout we just tell the manufacturer 'hey, just sell the stupid thing. Release all of YOUR rights that you magically granted yourself above and beyond what various copyright laws already provide when you take the purchaser's money and SUCK IT THE HECK UP!'

Fixed that for you.

Judging by the SOPA hearings..

[Anarchduke]

The US doesn't stand a snowballs chance in hell of getting anything that doesn't benefit the MPAA or the BSA.

What are Product Usage Rights?

[iamwahoo2]

When I go to the store and purchase something, I own it. But I do not own the copyright and therefore do not have the right to copy and distribute any type of creative work that is associated with this purchase. However EULAs limit usage rights (hence the name End User Licensing Agreement), not copying rights. I would therefore like to understand where this control over product usage rights is derived from (in the U.S.A or any country for that matter) and to what types of products does it apply? Do I require usage rights for the loaf of bread that I purchased from the grocery? Just items also covered by copyright? If so, what about a coloring book? Can a manufacturer attach an EULA to a coloring book restricting the use of certain colors or types of coloring instruments?

Any Lawyers out there? please tell me, what are product usage rights? Where do the come from? To what types of products do they apply?

They do not have to be hard to read

[cfulmer]

The purpose of a EULA is to protect the company from liability and, sometimes, that means including specific language -- the "implied warranty of merchantability," and "indemnification" for example are legalistic, but have specific meanings that are not easily translated into everyday english. On the other hand, lots of lawyers have gotten used to writing in legal jargon -- "In the event that" instead of "If," for example, overuse of words like "hereunder" and "thereunder," etc.... And that stuff sure doesn't belong in a document they expect laypeople to read.

I posted about this subject a few weeks ago on my blog -- even included a set of sample terms written in fairly easy-to-read english.

Re:They do not have to be hard to read

[Jaxoreth]

Can you explain why these agreements refer to "express" warranties? It should go without saying that the opposite of "implied" is "expressed", and "express" as an adjective only applies to transit routes, as far as I know.

Seeing lawyers unable to accurately express themselves without garbling a fairly common word doesn't instill confidence in their command of the more esoteric parts.

I admit it's a loose use of language

[tepples]

Broadband services don't have EULAs as you are not licensing software.

I was referring to one-sided contracts in general, be they license agreements for proprietary software or acceptable use policies for home Internet access.

IDA is excellent

[Anonymous Coward]

Well, IDA Pro is excellent software of a quality unreached by most applications.
Maybe you don't need draconian licenses when your product is that good & unique.

They don't have any competition not because they sue everything in sight but because they deliver a superior product.

Already exist

[Hentes]

In my country EULAs are not allowed to contain "unusual" (I'm not sure hot that is defined) parts.

Quiz

[jones_supa]

Imagine if instead of an "I agree" checkbox there would be a really hard quiz which tests whether you have actually read and understood the complete text. :)

Clicking "I Agree" isn't binding

[Anonymous Coward]

Clicking "I Agree" isn't binding but when you buy stuff online, the agreement is binding when the money is transacted and the goods dispatched (though in many countries, not closed until 28 days AFTER receipt).

It isn't an agreement to contract, it's an agreement to let them take the details to process payment.

Re:Clicking "I Agree" isn't binding

[rdnetto]

My point was that there's no good way to differentiate between the EULA and the sale of goods when acceptance of either involves clicking on something. Also, the agreement is binding from the moment the promises to transfer the money and goods are exchanged, not merely when first is dispatched.

Re:The Virgin Digital EULA was at least fun to rea

[Jaxoreth]

http://joegratzdotnet.nfshost.com/?p=499

"If you ignore this and then come crying to us later, we're just gong to point you back to this agreement -- which you didn't read in the first place. How do I know that? Because nobody ever reads these things. I'm actually writing this for myself. I'm the only one that will ever read this. And the sad thing is that I'll spell-check it anyway."

Oops.

Re:The Virgin Digital EULA was at least fun to rea

[znerk]

"There are several missed aches that a spell checker can't can't catch catch. For instant, if you accidentally leave out word, your spell checker won't put it in you."
  - Taylor Mali, "The the Impotence of Proofreading"

Also, the spell checker wouldn't catch "gong" instead of "going", because they're both actual dictionary words.