But do you have any reason for thinking shrink-wrap licenses are valid other than recent precedent? The precedents I've seen claimed to support shrink-wrap licenses all have serious flaws if you examine them.
MAI for instance, had the customer signing a contract saying they'd follow the EULA so seems worthless as a precedent in cases where no specific contract was signed.
ProCD seems broken by the argument you dismiss with "promissory estoppel". The proof is trivial. He's suffering to the tune of the purchase difficulty and the purchase price and the software has no value (according to the EULA). He may recoup some of part of this cost, at further difficulty.
None of these cases actually dealt with the issues involved in shrink-wrap licenses directly enough to actually cover any of the reasonable defenses to post-sale contracts. A tangential precedent seems of limited worth.
So, considering how many cases we see where judges are totally out to lunch, and given how lawyers are paid to distort the truth, it seems like a fair assumption that hidden contracts might not be legally supported despite a few rulings have tentatively accepted shrink-wrap licensing. Like the RIAA's questionable success earlier on, shrink-wrap has been pushed by the biggest legal teams and a few judges have shown that they phoned the thing in, barely considering the issues.
You're responding to something beyond the issue of what I quoted. Someone who merely cuts together the best bits of a flopped movie isn't lying, just polishing a turd. But I wasn't talking about them.
The person who claims it's the best movie (tide, best detergent ever) when not actually believing this, is a liar. As there's no gun to their head in this theoretical scenario, merely the same "feed the family" pressure everyone feels, it's fair to say they're fairly shitty people.
You think otherwise, but you're the schmuck with a piece of paper trying to get the court to uphold mythical rights and I'm the one using the software.
Eventually everyone will realize this is the same scam as book licenses which were tried a hundred years ago, until then you'll still find a few gullible people who believe contract law is totally different just because software is involved.
People keep presenting this as if it's the brave new world of law. It's not.
If you don't want to sell something you license it - by agreeing beforehand. Whip out the twenty-page contract at the till and let the purchaser take half an hour out of line to read it and you'll have your valid license agreement.
My ONLY problem with this is the idea that in the (mostly) one area of law you don't get to see the contract before you're supposedly bound by it. While there are implied contracts everywhere they aren't alterable in secret by only one party.
Sure, if the shrink-wrap license is binding, that'd be the sequence of events.
But even if we assume EULAs are in theory valid (it's just a license with the end-user), the shrink-wrap nature of them is the catch, not that they'd override an earlier contract.
You'd have to show relevant damages to sue for promissory estoppel. "But I was reaaaallly hungry" doesn't make for a compelling tort.
But I didn't get the product I paid for. Extra-hungry or not, I ordered option A and was given B, an option of much less value.
[...]17-117a1
I'm not clear what your point is here.
So no license is required to use software. The thinking that led to EULAs was that while owning the media may be legal you couldn't actually use the software (copy into ram, etc) without explicit permission. That's obviously BS for a few reasons - the primary being the common-sense principle that if you offer something for sale it has to be usable and if you know legal restrictions will prevent this you can't honestly offer it for sale. But anyways, now we have 117a1 to spell out in excruciating detail that you're allowed to use media you own (as if it would have ever been otherwise.)
Anyway, I understand where you're coming from. You feel like people are getting screwed because they believe they're buying a copy of some software when in fact they're not.
No. Because they *are* buying the software. Because all rules of law point to this being an absolute sale and always have. The ONLY questions here were raised by the very industry that would benefit. Without any law actually supporting their actions they began inventing this shrink-wrap concept and then actually managed to sell the idea to a few judges in round-about ways that leave damaging precedent to cloud the issue for years. The best justification for shrink-wrap licenses is that "now everyone knows they're there". It's essentially a rapist's excuse - she should have known if she dressed that way.
Why, because this new IP-based product is so revolutionary that our existing laws wouldn't work? No. That argument was made for books a hundred year ago and the outcome merely clarified how sales work. Now we're supposed to believe that the same contracts that were in books are supposedly binding because they're in software?
I've got a formula for you. Pick a writer, fire the rest. Fire the big-name actors and hire people for literally 1/1000th or less.
Corporate movies tend to have the same "feel" as enterprise Java code. Both horribly bloated because "That's how banks do it/focus groups liked it".
Of course, the actors aren't for the movie itself, but for the tabloid star power. If money your (only) concern then the current method makes sense. Make everything so bland that the only way to judge is a feature checklist (Got a star, check. Got action, check.)
If he hates Tide detergent but touts it is the best soap ever, he's not honest.
Exactly. And while that may not be a crime, it sure does make him a shitty person. And while it is a crime to kick people in the nuts when they aren't looking I'd probably be so distracted with the first matter as to not notice if they suffered a little of the second from their victims (err, knowingly mislead customers)...
People get so caught up in their little "but it's only horrible, not actually illegal" story that they miss that we're not trying to claim it's illegal - just that maybe it should be because it's so horrible.
So bitch about the scratched film on non-opening day releases. They only keep using the film as long as they do because they think the scratches don't detract.
The orange dots are annoying. Like retail software, the copy protection is getting so bad to punish the people who don't pay that the movie is hardly worth it for the real customers.
Do they still play commercials in front of them? Last movie I saw in the theater (ever) was Crouching Tiger - not coincidentally it was the first (that I saw - small town) to start with a commercial, just like TV.
As long as the product is advertised and displayed as being a software product it will be understood to not be licensed - as a CD is sold not licensed.
If care is taken to actually inform the customer, from the moment of the advertisement (Not WinXP - a license to use WinXP) until the cashier collects your signature on the contract, it would be enforceable.
As long as something is presented for retail sale the nature of the transaction doesn't allow for extra encumberances.
As for being able to return the software... For you to suggest that the chance to return software I've legally purchased justifies not selling me the product the store offered is sick. It implies that anything is fine, as long as you explain in the box that you're screwing someone over and give them a convoluted way set of hoops to jump through. Choke on something you fascist bastard.
No one's forcing you to accept the license agreement.
Not forcing me to sign, no. But forcing me to give up the use of a product I already legally purchased, yes.
They advertise games for sale and yet purport to deliver only a license to play a game. These two are not interchangeable. Imagine if you bought at a restaurant food and instead received a contract (an hour later, when really hungry) that you had to sign before receiving the food.
Even if you haven't paid, you've indicated you acceptance of deal 1, unencumbered food. For them to switch to deal 2 without warning is as unsupportable as giving you a different meal.
Of course, if you quietly eat it without a fuss, no skin off their noses.
I know of no law that states you are not bound by the terms of a license agreement on software you purchase and install.
Do you know of any law that says software purchases, even when they appear as outright sales, aren't?
IP law is completely different for software vis a vis books, movies, and CDs.
Completely? Even though copyright statute has a specific allowance for the copying of software to avoid any question of needing to license it. 17-117a1
Anyway, I think you're confusing the way it works with the way the self-interested companies claim it works. They might not be totally honest...
Your last interpretation works for me, I'll buy the EULA and the incidental CD, pitch the EULA and use the CD.
Seriously though, the EULA is a contract that establishes a license. It's not a valid contract though, for the reasons you listed. Also, because no license is needed to use software despite software publisher's theories.
But something you already own has no power to force you to sign a contract to use it. Copyright law specifically says no license is required for the owner of a copy to use it, EULAs are a failed concept.
Oh yes, EULAs fly completely in the face of all contract law - the idea of hidden contracts and such - but let's just assume they're valid until we hear otherwise. And then let's assume that whatever other crazy legal ideas the software companies have are right until specifically overturned.
Perhaps, if we're just going to trust someone, we could pick someone other than the companies directly using those "laws" against us.
Breaking what, the "contract" you don't see until long after you've become the legal owner of the software?
There's a big difference between selling a program and selling a box which contains an unknown contract you may or may not be willing to sign. If the second is their intent, they should label it as such and charge accordingly. I might be willing to risk $.50 on that - like an AOL cd... save on downloading something to try it out. But it sure isn't a real product, like everything else on store shelves, that becomes full property of the owner upon completion of the sale.
Imagine how ridiculous it would be if we gave this privilege to other copyright holders... Toys wouldn't be sold, they'd be licensed because they contain IP - the sounds, images, characters. Cars too, just trivially, contain computers whose programs are copyrighted and thus wouldn't actually be sold, just "licensed" under insane terms.
Or we could just take a deep breath and realize that letting both parties read a contract, and doing so before the contract is finalized (payment made), are both necessary if a contract was going to be valid. At a minimum they'd need to get you to sign at the cash register - or in some other way tell you that it wasn't a simple sale and reasonably let you examine the conditions.
If they can handle such seamless outsourcing you should just give them an MBA. They've shown the ability to arrange foreign labor to be ready at odd hours, for rapid-turnaround work, to be consistent in its output, etc... That's not easy.
And as for research, maybe they could do what anyone else would do and google for the institution. If it's not on any top-500 lists they'll weigh it appropriately. And the student will likely have paid appropriately - I think the U of Phoenix's distance course are cheaper than Yale, and slightly less prestigious.
Don't cheat by whose rules? If I threw you in prison unjustly, could you be trusted to not try to escape?
I think your last statement is actually what did it - you merely internalized that bit about cheating yourself - and learned to like learning.
Cheating, really, is just rule breaking. Teaching people not to break rules breeds sheep. Sheep who follow broken rules to bad ends. You need to raise intelligent people who do things safely/right despite rules.
That just teaches them that you'll hurt them if you catch them, not that they shouldn't do it. Haven't you ever had a cat?
It's easy to teach people not to cheat. Show them they won't be condemned by any one-time failure. Currently tests usually mean you get a single chance. As opposed to having a near-infinite amount of question and letting people try over and over again.
Also, to stop cheating make open-book tests. Who cares if the person memorizes the formula or reads it - if memorizing it is important their speed will suffer until they do. Nicely self-correcting.
Wouldn't that be wonderful. Nobody would trust grades so they'd make you do practical tests for the job.
As opposed to now where people trust grades more than anything. It's not even cheaters that ruin this, just that tests aren't very indicative of actual skill.
The guy next door with all the shiny stuff appears to have a "larger economy" until he fails to make payments and goes bankrupt. But then he pays that credit card off on another one and continues the cycle, thus proving the validity of his system. (Until oh, a housing crunch dries up credit...)
eGold is not backed by the full faith and credit of the United States government.
Does it need to be? The beauty of the system is that you transfer ownership of the gold between parties. It's not a currency that needs maintenance, it's a system of barter. Really, the concept is just about transferring ownership, not of what. Could have even been US dollars, or ripe tomatoes, though neither of the two is expected to have more staying power.
In fact, all currencies are "private"...
Now you are just making stuff up.
No, seriously. Economics of a single economy can never be solved, as they aren't closed and isolated systems. Step back a few steps from the USA and it begins to look like a soon-to-be-bankrupt bank from the 1800s printing money like crazy. Step back further and it looks like a person handing out IOUs at an astounding rate. Look at the world as a natural single economy that simply is pre-currency (pre standardized currency at any rate) and at all currencies as private ones.
You certainly are the lawyer in this conversation, but what you say about the 900-page contract seems to be roughly what I'm saying:
I can't sign a contract to receive a prize and sign away my car, despite that I may have signed a contract that states exactly that and the prize is valid consideration, because it's not what it's represented as.
If I present something as a sale and yet in the "warranty paperwork" slip in a clause that says you didn't actually buy the item, it's clearly not what you intended to sign.
The quote in Tres is misleading, because the case really rests on the fact that TJ signed a contract agreeing that the EULA would be binding. That the judge says anything else is a pity, it just provides broken precedents.
The problem with ProCD is that the judge said I can sell you something that isn't really what it appears, merely because I plan to replace it with the full article after you agree to further terms.
Put another way, it's quite easy for the judge to tell you to drive back to the store and return it, but what about the naive concept that the transfer of funds at the till actually signaled completion of the contract? Why isn't anyone acknowledging that buying a widget today is not like buying a widget and getting access to it at some future point. This is why contracts specify delivery times and in the case of retail sales that time is understood to be upon acceptance of payment.
This precedent implies a box with a further offer is equivalent to a product. Zeidenberg was prevented from protesting by the unreasonable burden of returning the product. He'd paid $x for a product, not a product and a hassle.
If this is allowed it opens the loophole of offering an expensive product, but instead provide a contract for the immediate shipping of the item, IF the purchaser agrees to a few more restrictions. If this is valid with software, why not with hardware? You buy a video card and get a box with a paper-weight and a list of rules... "No cheating in the games you play with this card." "This card is not the be used in games where religious or other minorities are..." etc.
So much of an issue is made that the EULA was displayed, was forced upon the user, that nobody notices that the user is forced to agree. Surely if they paid an a given amount for ownership of the game, they wouldn't be happy to receive a product of lesser value (a mere limited license). Perhaps you could force a user to acknowledge certain limitations, but surely not without refunding them the difference in price between a limited and unlimited copy.
Getting to that... That insanely high value you hint at. What, like the $8 to buy a book? $12 to buy a CD? Those are absolute sales. Obviously the value of the Harry Potter "IP" is far in excess of the purchase price of any piece of it, just as with software. So no, I don't buy that one either. Copyright already does the job of limiting the value of a single copy.
You own a book, and a music CD, and you own software, unless you license it. Currently people who missed the doctrine of first-sale nonsense the first time are falling for version two, but it can't last forever. Soon some large company is going to be bitten by a EULA and the outcome will be a bit different.
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But do you have any reason for thinking shrink-wrap licenses are valid other than recent precedent? The precedents I've seen claimed to support shrink-wrap licenses all have serious flaws if you examine them.
MAI for instance, had the customer signing a contract saying they'd follow the EULA so seems worthless as a precedent in cases where no specific contract was signed.
ProCD seems broken by the argument you dismiss with "promissory estoppel". The proof is trivial. He's suffering to the tune of the purchase difficulty and the purchase price and the software has no value (according to the EULA). He may recoup some of part of this cost, at further difficulty.
None of these cases actually dealt with the issues involved in shrink-wrap licenses directly enough to actually cover any of the reasonable defenses to post-sale contracts. A tangential precedent seems of limited worth.
So, considering how many cases we see where judges are totally out to lunch, and given how lawyers are paid to distort the truth, it seems like a fair assumption that hidden contracts might not be legally supported despite a few rulings have tentatively accepted shrink-wrap licensing. Like the RIAA's questionable success earlier on, shrink-wrap has been pushed by the biggest legal teams and a few judges have shown that they phoned the thing in, barely considering the issues.
You're responding to something beyond the issue of what I quoted. Someone who merely cuts together the best bits of a flopped movie isn't lying, just polishing a turd. But I wasn't talking about them.
The person who claims it's the best movie (tide, best detergent ever) when not actually believing this, is a liar. As there's no gun to their head in this theoretical scenario, merely the same "feed the family" pressure everyone feels, it's fair to say they're fairly shitty people.
No. Here's the joke. I could buy it, and did.
You think otherwise, but you're the schmuck with a piece of paper trying to get the court to uphold mythical rights and I'm the one using the software.
Eventually everyone will realize this is the same scam as book licenses which were tried a hundred years ago, until then you'll still find a few gullible people who believe contract law is totally different just because software is involved.
People keep presenting this as if it's the brave new world of law. It's not.
If you don't want to sell something you license it - by agreeing beforehand. Whip out the twenty-page contract at the till and let the purchaser take half an hour out of line to read it and you'll have your valid license agreement.
My ONLY problem with this is the idea that in the (mostly) one area of law you don't get to see the contract before you're supposedly bound by it. While there are implied contracts everywhere they aren't alterable in secret by only one party.
Sure, if the shrink-wrap license is binding, that'd be the sequence of events.
But even if we assume EULAs are in theory valid (it's just a license with the end-user), the shrink-wrap nature of them is the catch, not that they'd override an earlier contract.
You'd have to show relevant damages to sue for promissory estoppel. "But I was reaaaallly hungry" doesn't make for a compelling tort.
But I didn't get the product I paid for. Extra-hungry or not, I ordered option A and was given B, an option of much less value.
[...]17-117a1
I'm not clear what your point is here.
So no license is required to use software. The thinking that led to EULAs was that while owning the media may be legal you couldn't actually use the software (copy into ram, etc) without explicit permission. That's obviously BS for a few reasons - the primary being the common-sense principle that if you offer something for sale it has to be usable and if you know legal restrictions will prevent this you can't honestly offer it for sale. But anyways, now we have 117a1 to spell out in excruciating detail that you're allowed to use media you own (as if it would have ever been otherwise.)
Anyway, I understand where you're coming from. You feel like people are getting screwed because they believe they're buying a copy of some software when in fact they're not.
No. Because they *are* buying the software. Because all rules of law point to this being an absolute sale and always have. The ONLY questions here were raised by the very industry that would benefit. Without any law actually supporting their actions they began inventing this shrink-wrap concept and then actually managed to sell the idea to a few judges in round-about ways that leave damaging precedent to cloud the issue for years. The best justification for shrink-wrap licenses is that "now everyone knows they're there". It's essentially a rapist's excuse - she should have known if she dressed that way.
Why, because this new IP-based product is so revolutionary that our existing laws wouldn't work? No. That argument was made for books a hundred year ago and the outcome merely clarified how sales work. Now we're supposed to believe that the same contracts that were in books are supposedly binding because they're in software?
I've got a formula for you. Pick a writer, fire the rest. Fire the big-name actors and hire people for literally 1/1000th or less.
Corporate movies tend to have the same "feel" as enterprise Java code. Both horribly bloated because "That's how banks do it/focus groups liked it".
Of course, the actors aren't for the movie itself, but for the tabloid star power. If money your (only) concern then the current method makes sense. Make everything so bland that the only way to judge is a feature checklist (Got a star, check. Got action, check.)
If he hates Tide detergent but touts it is the best soap ever, he's not honest.
Exactly. And while that may not be a crime, it sure does make him a shitty person. And while it is a crime to kick people in the nuts when they aren't looking I'd probably be so distracted with the first matter as to not notice if they suffered a little of the second from their victims (err, knowingly mislead customers)...
People get so caught up in their little "but it's only horrible, not actually illegal" story that they miss that we're not trying to claim it's illegal - just that maybe it should be because it's so horrible.
So bitch about the scratched film on non-opening day releases. They only keep using the film as long as they do because they think the scratches don't detract.
The orange dots are annoying. Like retail software, the copy protection is getting so bad to punish the people who don't pay that the movie is hardly worth it for the real customers.
Do they still play commercials in front of them? Last movie I saw in the theater (ever) was Crouching Tiger - not coincidentally it was the first (that I saw - small town) to start with a commercial, just like TV.
As long as the product is advertised and displayed as being a software product it will be understood to not be licensed - as a CD is sold not licensed.
If care is taken to actually inform the customer, from the moment of the advertisement (Not WinXP - a license to use WinXP) until the cashier collects your signature on the contract, it would be enforceable.
As long as something is presented for retail sale the nature of the transaction doesn't allow for extra encumberances.
As for being able to return the software... For you to suggest that the chance to return software I've legally purchased justifies not selling me the product the store offered is sick. It implies that anything is fine, as long as you explain in the box that you're screwing someone over and give them a convoluted way set of hoops to jump through. Choke on something you fascist bastard.
No one's forcing you to accept the license agreement.
Not forcing me to sign, no. But forcing me to give up the use of a product I already legally purchased, yes.
They advertise games for sale and yet purport to deliver only a license to play a game. These two are not interchangeable. Imagine if you bought at a restaurant food and instead received a contract (an hour later, when really hungry) that you had to sign before receiving the food.
Even if you haven't paid, you've indicated you acceptance of deal 1, unencumbered food. For them to switch to deal 2 without warning is as unsupportable as giving you a different meal.
Of course, if you quietly eat it without a fuss, no skin off their noses.
I know of no law that states you are not bound by the terms of a license agreement on software you purchase and install.
Do you know of any law that says software purchases, even when they appear as outright sales, aren't?
IP law is completely different for software vis a vis books, movies, and CDs.
Completely? Even though copyright statute has a specific allowance for the copying of software to avoid any question of needing to license it. 17-117a1
Anyway, I think you're confusing the way it works with the way the self-interested companies claim it works. They might not be totally honest...
Your last interpretation works for me, I'll buy the EULA and the incidental CD, pitch the EULA and use the CD.
Seriously though, the EULA is a contract that establishes a license. It's not a valid contract though, for the reasons you listed. Also, because no license is needed to use software despite software publisher's theories.
But something you already own has no power to force you to sign a contract to use it. Copyright law specifically says no license is required for the owner of a copy to use it, EULAs are a failed concept.
Show me a precedent that makes it clear that a consumer who buys a software package in a retail setting is bound by a contract.
All of the supposedly EULA supporting cases have gaping flaws if looked at as support for the claim above.
Oh yes, EULAs fly completely in the face of all contract law - the idea of hidden contracts and such - but let's just assume they're valid until we hear otherwise. And then let's assume that whatever other crazy legal ideas the software companies have are right until specifically overturned.
Perhaps, if we're just going to trust someone, we could pick someone other than the companies directly using those "laws" against us.
Breaking what, the "contract" you don't see until long after you've become the legal owner of the software?
There's a big difference between selling a program and selling a box which contains an unknown contract you may or may not be willing to sign. If the second is their intent, they should label it as such and charge accordingly. I might be willing to risk $.50 on that - like an AOL cd ... save on downloading something to try it out. But it sure isn't a real product, like everything else on store shelves, that becomes full property of the owner upon completion of the sale.
Imagine how ridiculous it would be if we gave this privilege to other copyright holders... Toys wouldn't be sold, they'd be licensed because they contain IP - the sounds, images, characters. Cars too, just trivially, contain computers whose programs are copyrighted and thus wouldn't actually be sold, just "licensed" under insane terms.
Or we could just take a deep breath and realize that letting both parties read a contract, and doing so before the contract is finalized (payment made), are both necessary if a contract was going to be valid. At a minimum they'd need to get you to sign at the cash register - or in some other way tell you that it wasn't a simple sale and reasonably let you examine the conditions.
Ahh yes, intent is an issue. Consumer intent to sign a contract. I don't see much.
Whatever Apple intends, as long as it sells its OS at retail it doesn't have a very good case for including crazy restrictions.
Especially since brand-tying is generally not enforceable.
If they can handle such seamless outsourcing you should just give them an MBA. They've shown the ability to arrange foreign labor to be ready at odd hours, for rapid-turnaround work, to be consistent in its output, etc... That's not easy.
And as for research, maybe they could do what anyone else would do and google for the institution. If it's not on any top-500 lists they'll weigh it appropriately. And the student will likely have paid appropriately - I think the U of Phoenix's distance course are cheaper than Yale, and slightly less prestigious.
Don't cheat by whose rules? If I threw you in prison unjustly, could you be trusted to not try to escape?
I think your last statement is actually what did it - you merely internalized that bit about cheating yourself - and learned to like learning.
Cheating, really, is just rule breaking. Teaching people not to break rules breeds sheep. Sheep who follow broken rules to bad ends. You need to raise intelligent people who do things safely/right despite rules.
That just teaches them that you'll hurt them if you catch them, not that they shouldn't do it. Haven't you ever had a cat?
It's easy to teach people not to cheat. Show them they won't be condemned by any one-time failure. Currently tests usually mean you get a single chance. As opposed to having a near-infinite amount of question and letting people try over and over again.
Also, to stop cheating make open-book tests. Who cares if the person memorizes the formula or reads it - if memorizing it is important their speed will suffer until they do. Nicely self-correcting.
Wouldn't that be wonderful. Nobody would trust grades so they'd make you do practical tests for the job.
As opposed to now where people trust grades more than anything. It's not even cheaters that ruin this, just that tests aren't very indicative of actual skill.
The guy next door with all the shiny stuff appears to have a "larger economy" until he fails to make payments and goes bankrupt. But then he pays that credit card off on another one and continues the cycle, thus proving the validity of his system. (Until oh, a housing crunch dries up credit...)
eGold is not backed by the full faith and credit of the United States government.
Does it need to be? The beauty of the system is that you transfer ownership of the gold between parties. It's not a currency that needs maintenance, it's a system of barter. Really, the concept is just about transferring ownership, not of what. Could have even been US dollars, or ripe tomatoes, though neither of the two is expected to have more staying power.
In fact, all currencies are "private"...
Now you are just making stuff up.
No, seriously. Economics of a single economy can never be solved, as they aren't closed and isolated systems. Step back a few steps from the USA and it begins to look like a soon-to-be-bankrupt bank from the 1800s printing money like crazy. Step back further and it looks like a person handing out IOUs at an astounding rate. Look at the world as a natural single economy that simply is pre-currency (pre standardized currency at any rate) and at all currencies as private ones.
And yet Paypal locks so many more accounts than Western Union... accounts that invariably have money *in* them.
Paypal - Not a bank, just thieves
Unless the events are related. It's fine if the whole town is just making regular calls, but bad if they're trying to win a radio-station contest.
Oh, yeah, and if all the banks are in the same economy and it tanks, they all tank at once...
You certainly are the lawyer in this conversation, but what you say about the 900-page contract seems to be roughly what I'm saying:
I can't sign a contract to receive a prize and sign away my car, despite that I may have signed a contract that states exactly that and the prize is valid consideration, because it's not what it's represented as.
If I present something as a sale and yet in the "warranty paperwork" slip in a clause that says you didn't actually buy the item, it's clearly not what you intended to sign.
The quote in Tres is misleading, because the case really rests on the fact that TJ signed a contract agreeing that the EULA would be binding. That the judge says anything else is a pity, it just provides broken precedents.
The problem with ProCD is that the judge said I can sell you something that isn't really what it appears, merely because I plan to replace it with the full article after you agree to further terms.
Put another way, it's quite easy for the judge to tell you to drive back to the store and return it, but what about the naive concept that the transfer of funds at the till actually signaled completion of the contract? Why isn't anyone acknowledging that buying a widget today is not like buying a widget and getting access to it at some future point. This is why contracts specify delivery times and in the case of retail sales that time is understood to be upon acceptance of payment.
This precedent implies a box with a further offer is equivalent to a product. Zeidenberg was prevented from protesting by the unreasonable burden of returning the product. He'd paid $x for a product, not a product and a hassle.
If this is allowed it opens the loophole of offering an expensive product, but instead provide a contract for the immediate shipping of the item, IF the purchaser agrees to a few more restrictions. If this is valid with software, why not with hardware? You buy a video card and get a box with a paper-weight and a list of rules... "No cheating in the games you play with this card." "This card is not the be used in games where religious or other minorities are ..." etc.
So much of an issue is made that the EULA was displayed, was forced upon the user, that nobody notices that the user is forced to agree. Surely if they paid an a given amount for ownership of the game, they wouldn't be happy to receive a product of lesser value (a mere limited license). Perhaps you could force a user to acknowledge certain limitations, but surely not without refunding them the difference in price between a limited and unlimited copy.
Getting to that... That insanely high value you hint at. What, like the $8 to buy a book? $12 to buy a CD? Those are absolute sales. Obviously the value of the Harry Potter "IP" is far in excess of the purchase price of any piece of it, just as with software. So no, I don't buy that one either. Copyright already does the job of limiting the value of a single copy.
You own a book, and a music CD, and you own software, unless you license it. Currently people who missed the doctrine of first-sale nonsense the first time are falling for version two, but it can't last forever. Soon some large company is going to be bitten by a EULA and the outcome will be a bit different.