I just moved my domain from NS to No-IP. I did this after NS preemptively took down the Fitna website. I don't want to be doing business with a registrar that has no qualms about revoking a domain for no valid reason.
I was already using No-IP for dynamic DNS and found that their management tools are simple and their website is uncluttered (they don't spam every page with ads for the zillions of services like GoDaddy and some of the other big registrars).
For the music industry, there is a dark side to Apple's ascension to the top of the charts. Buying patterns for digital downloads are different, as customers are far more likely to cherry pick a favorite track or two from an album than purchase the whole thing.
Gasp! Heaven forbid that companies might actually give customers what they want! It's an OUTRAGE!!!
So we agree, under ProCD EULAs are enforceable when there is assent by the buyer. Good. And if the buyer rejects, by sending the software maker a letter stating "I reject your End-User License Agreement"? Where does that leave us? By your (and ProCD's) reasoning, the buyer must return the product because the contract was not agreed upon and did not fully form. Which seems to make sense, except...
The buyer has already taken on the risk of loss because he assumed when leaving the store that he now held title (because this is the way title transfers unless stated otherwise). Now the software maker claims, ex post facto, that title transfers at a different time (or, puzzlingly, not at all). Contracts do not normally work this way. Indeed the purpose of contracts is to establish expectations before performance is carried out. ProCD's proposed method of contract formation allows for substantial performance to be completed (in fact all performance on the seller's part), and then for the terms to be decided upon afterward. Doesn't this strike you as just slightly bizarre?
UCC 2-401 allows the parties to agree on when (and, presumably if) title will transfer.
When, yes, but absolutely not "if". A sale must necessarily involve the transfer of title, otherwise it is not a sale and the contract is not a contract for sale and thus the contract is not subject to UCC Article 2:
A "sale" consists in the passing of title from the seller to the buyer for a price
-- from UCC 2-101(1)
Furthermore, if the seller wishes to alter the UCC's default provisions for when title transfers, he must do so before the act occurs which normally triggers transfer of title, for reasons stated earlier.
But all this ignores one important oversight (perhaps the most important) that the ProCD court made: ProCD, the company, was not the seller. Best Buy was the seller. Best Buy, and only Best Buy, has authority under the UCC to determine the terms of the contract for sale.
And as I depart I'll leave you with one other thing to think about. Traditionally sales are contracts of finite duration. The seller offers to sell, the buyer accepts, the buyer pays, the seller delivers... and then it's done. What ProCD has done is created a new form of sale where the contract extends on indefinitely. The buyer is supposedly bound to continue performance for an indeterminate amount of time, while the seller's performance ends at the cash register (or even at the warehouse). So the buyer has to be on his toes ensuring that he performs for potentially years, while the seller can kick back, relax and drink that margarita with the money he's just earned. Again, doesn't this strike you as a bit bizarre, or at least off-kilter in favoring the seller a wee bit too much?
Under PRO-CD, the EULA is binding (assuming Pro-CD's conditions are met)
If the buyer assents to it. If the buyer does not assent to it, the contract cannot simply be voided by the seller, because title has already transferred along with risk of loss, etc.
On the other hand, if the Software Company doesn't transfer title
Then the software company is in violation of UCC 2-401(2).
But not both at the same time in the same case. Which was one of your arguments. It must be one or the other for a given set of facts.
it would be expensive and would dramatically raise the price of software.
No it wouldn't. They already enter into contracts with each end user (the EULAs), so it wouldn't be any different in that regard. The only difference would be that the terms of the EULA would be available prior to purchase, and that wouldn't raise prices much, if any (especially with software purchased online).
You seem to think that Pro-CD was wrongly decided because it didn't adhere strictly to the UCC.
That's exactly what I'm arguing. And, in the long run, it doesn't matter that it's the law right now. Over time I think the courts will have no option but to realize that the paradigm that ProCD created is incompatible with the UCC (for a number of reasons, only a small number of which we have discussed). So, while we're stuck with the law as it stands for now, I think there's a good chance things will change.
It sounds like in the end neither of us will be persuaded by the other's arguments. But it has been an interesting discussion nonetheless. Honestly, I would be happy to be persuaded to the other side, because I always prefer to be in agreement with the law of the land:)
My previous post was sent in a bit of haste because it was getting late. Let me back up a little.
You are setting up a false dichotomy.
It's not a false dichotomy. Either it is a license, or a sale. It cannot be both, for the following reasons:
A license is only required if the software company retains ownership over the copy. Otherwise the end-user may use the software without a license (17 USC Sec 117).
If the transaction is a sale, then ownership necessarily transfers to the buyer (UCC 2-106(1), 2-401(2), 2-312)
Clearly, the software company cannot retain ownership (required for a license) but still sell the item (transferring ownership). Which of the above two points do you disagree with?
Where is there a case that specifically states that the transaction is both a sale and a license? Every case that I'm aware of has ruled one way or the other. ProCD and similar assert that the transaction is a sale and that, despite it's name, the EULA is not a license, but merely a part of the contract for sale. This is not the same as saying it is both a sale and a license.
Allowing software manufacturers to impose conditions on downstream users makes a lot of sense, as a policy matter. For example, manufacturers can charge different prices for a piece of software depending on how it will be used. It's a whole heck of a lot easier than the software company having to enter into individual contracts with each customer.
To turn Judge Easterbrook's own reasoning against him: there's nothing in the UCC that requires the buyer to maximize the seller's net gains. There's nothing that would prevent software manufacturers from selling direct to end-users, and requiring the end users to agree to their terms before they are willing to part with the software. The software companies could thereby exert the control they desire. The courts need not distort the meaning and intent of the UCC in order to support this business model.
A EULA is presumably unenforceable if the purchaser did not have a chance to review the terms before the sale and was prohibited from return the software for a refund after the sale if he did not like the EULA.
Yes, that is the current state of affairs, but not what I was getting at. A large missing piece of the puzzle is what happens when the end-user says, "Sorry, I do not accept your license, but I assert that I own this copy of software and I will not return it." Even with ProCD, this situation has not been covered. The ProCD court only bound Zeidenberg to the EULA because he had explicitly assented to it's terms. But what if he hadn't? The court indicated that he had a right to return, but not an obligation to return. What's more, the plain and unambiguous language of UCC 2-401(2) makes it clear that by the time Zeidenberg had the copy in his possession, he was the rightful owner of it. This would have made it difficult for the court to assert that he had an obligation to return the copy upon rejection of the license.
Indeed, it would be difficult for any court to say that the buyer has an obligation to return if he does not agree with the EULA. For one, by the time the EULA is read, the buyer has already taken on the risk of loss, theft, or damage to the goods -- something which cannot be undone. There is a reason why the UCC generally ties the transfer of risk of loss to the transfer of title, such that they both transfer at the same time. For a court to allow only risk of loss to transfer, while ownership does not, would be patently unfair to the buyer and contrary to the word of the UCC.
This is not the same as the Gateway case, where the court found the buyer assented to the terms by lack of action. I'm talking about a user taking proactive steps to let the software maker know that the license has been rejected. No case law I'm aware of covers this angle, and in my view the overall issue of enforceability of EULAs won't b
I suggest that (3), it has characteristics of both. So, it's covered by Article 2 AND the manufacturer can impose conditions on downstream purchasers or holders, despite not being in privity of contract.
Name the statute that supports this theory, and you might be able to convince me, otherwise I can only assume that this is pure speculation.
You can argue that EULAs shoudn't be enforced, but the fact is that they are generally, even if the law isn't completely settled.
This is only true in cases where the end-user has voluntarily agreed to the EULA. I'm not aware of any case law that deals with the case where the end-user refuses to assent to the EULA and asserts ownership rights over the purchased copy of software.
And the sales tax argument is not a red herring, because in most jurisdictions where the sale of software is taxed it's taxed because it is considered the sale of a good. Not for any other reason.
You can't take ProCD for the proposition that there was a sale, since that wasn't squarely before the court.
Absolutely. But they, and virtually every other relevant case since then, has accepted that as a matter of fact without analysis. This strongly suggests that these are sales, otherwise UCC Article 2 could not apply and all these decisions would be taken back to the drawing board.
If you want to know whether you're buying a copy or merely licensing it, you have to look at what the parties intend.
By that reasoning, two parties could contract for the sale of an item, and circumvent state sales tax laws by including verbiage in the contract to the effect of "This transaction is not a sale". The state in which such a contract was formed (and the IRS) would beg to differ. Indeed, the fact that sales tax is charged on virtually all retail software sales makes it difficult to argue that the transaction is not a sale.
Again, the court cannot look solely at intent. Yes intent is important, but the court must also consider external factors -- even if the intent of the contract is clear. Again, the court in One Stop failed to do any such analysis, and I find their argument to therefore be less persuasive than the SoftMan court's in which they did a pretty good economic analysis of the transaction.
It really boils down to my favorite leagal argument, "If it looks like a duck and quacks like a duck...";)
*Incidentally, this brings up an interesting situation in view of ProCD's reasoning. If ProCD (or any manufacturer) can act as the seller in a retail transaction, then the manufacturer should be responsible for collecting sales tax from the transaction -- not the retailer. This is just one other problem with the ProCD opinion.
Right, ProCD never got far enough to consider copyright. But it determined that software is sold, as a good, in the traditional sense. Calling it a license is simply playing with words.
I'd be very interested in hearing any arguments as to why the result in One Stop is any more convincing than that of SoftMan. I'm not familiar with the other two cases you cite, but as I recall, in One Stop the court basically said, "The software companies all say they license it, so it's a license". This reasoning smacks of a court trying to reach the result that seems just, by whatever means possible.
The SoftMan court examined the reality of the situation, and said, "You know what? It doesn't matter if you say you are licensing it, the reality is that this transaction fits the definition of a sale, and therefore it is a sale."
Characterizing a transaction based on the economic realities of that transaction is clearly a more sophisticated approach than simply going by the claims of the parties involved. Sure, the intent of parties must be considered when examining contracts, but the court must examine other factors, such as economic realities, as well. The One Stop court failed to do this.
The counter-argument is that you are buying a license, not a copy of the software, as is spelled out in the EULA.
Except a license is not a good, and therefore the "sale" of a license is not covered under the UCC. The courts have treated these as the sale of goods, within the traditional meaning: the box, and everything inside it including the media.
However, there is clearly a license component as well: if you throw out "your" copy of a piece of software and I pick it out of your trash, I am still bound by the EULA even though I was not a party to the original sale, nor am I in privity of contract with you.
This is what the software companies want you to believe. However, following the reasoning of ProCD and its progeny, if you find it in the trash, you have not entered into a contract with anyone. If you are the new rightful owner of the disc, then the software maker has no grounds to try to force you to enter into a contract.
You keep insisting that it's a license because the EULA says so. But, again, the EULA cannot change reality. If the economic and physical realities disagree with what the EULA says, then the EULA is simply wrong. We don't instead try to distort reality to attempt to make it fit with the EULA's claims. The majority of courts have repeatedly confirmed this (and yes, as always, there have been exceptions).
Well, that seems an awful lot like advertising that your software does, let's say, people's taxes, but in reality it's just a tight loop that does absolutely nothing useful.
It doesn't change anything. The software maker is still attempting to prevent you from using the software (for it's intended purpose). That's not something a court is likely to overlook.
A license agreement can't change reality just by making claims.
Every court that has ever addressed the issue of enforceability of EULAs has applied Article 2 of the UCC to them. Guess what Article 2 is titled -- "Sales". Just because the EULA says that the software is not sold, doesn't mean it isn't. Right now, the majority of courts have agreed that these are sales and that the EULA is part of the contract for sale.
The contract can both be a sale and not a sale at the same time. The "licensed, not sold" language is an attempt to distort reality and so far it has not worked. Courts that have ruled that EULAs are enforceable have done so for other reasons, not because they believe that the software is not sold.
There is nothing in the law that says that manufacturers are required to provide any kind of warranty along with the product they manufacturer. The seller (a retail store in the case of retail sales) makes certain implied warranties unless they are expressly disclaimed. This is nothing that software companies need be concerned about.
And if you think software companies don't care about the rest of the EULA, why not just ignore all those other terms, let your friendly neighborhood software company know you are disregarding them, and see what they have to say about it.
And no, disclaiming on the box that you have to agree to a contract is NOT sufficient if they are not disclosing the terms of the contract itself.
Like it or not (I don't) many US courts have decided that such a disclaimer on the box is sufficient (see ProCD v. Zeidenberg).
However, I don't think this detracts from your coercion argument. Even if the EULA is considered to be an extension of the contract for sale that was begun in the store, the buyer has already taken on the responsibilities of ownership by the time the EULA is presented (e.g. risk of loss, theft, or damage to the goods in transit to the buyer's home). Therefore the buyer must also obtain the rights of ownership. One of the rights of ownership of software is the right to use the software with a computer (section 117 of the Copyright Act bestows this right). The EULA is an attempt to interfere with this right.
So, even if the EULA is viewed as an extension of the contract for sale, any terms in the EULA that interfere with the buyer's ownership rights are, by that time, unconscionable. And the attempt to force the user to agree to those unconscionable terms is still coercion.
The entire premise of EULAs rests on this notion that the end-user does not own their copy of the software (hence the clause "This software is licensed, not sold"). Which is why you need to agree to the EULA to obtain permission to use the software (if you owned your copy, you wouldn't need permission to use it).
But courts have over and over treated EULAs as contracts for the sale of goods (even in cases where the enforceability of EULAs has been upheld). If the contract is supposedly for a sale of goods, but one of the foundational terms of the contract says "this is not a sale of goods", then that term and any other terms that depend on it are unconscionable.
Unfortunately, I do not think any reasonable U.S. judge would find that such shenanigans would constitute "acceptance" on the part of the electronic agent. It's pretty clear that no reasonable person would believe that the agent would be capable of interpreting the modified contract and making an informed decision as to whether or not it should be accepted.
I think such an attempt would be very frowned upon by most judges. They might even find that you acted in bad faith, and I'm sure that would lead to nothing but bad news for you.
Unless there is something in the UCC that might specifically allow for such things when dealing with electronic agents... which I suppose there may be. Seems like a long shot though, and probably not worth the risk of seriously annoying a federal judge.
The consideration requirement is pretty easy: "I give you a limited right to use this software and in return you agree to pay some money and to follow the EULA."
Except this is only true if the you actually have the legal ability to give me the right to use the software, and also assumes that I already do not have that right.
I already have the right to use it (17 USC Sec. 117 gives me, as owner of the copy, that right), and the store was the previous owner and would be the only entity capable of purporting to transfer that right to me. No consideration. No contract.
IAANAL, but believe your understanding is incorrect. 17 USC Sec. 117 says that the owner of a copy of a computer program can make any copies necessary to use the program with a computer. If installing the software to your hard drive is a necessary step for using it (it usually is), then there is no copyright infringement.
The tricky bit comes in when you start asking who is the "owner" of the copy. I think the answer is obvious in cases of retail sales of software. But, in the U.S. at least, the courts have not made it entirely clear.
Software companies shouldn't offer to sell software directly to average consumers through retail channels. The software companies have armies of lawyers who fully understand the legal issues involved in the EULA. These lawyers also understand that the average consumer will not have the firm grasp of contract and copyright law, which would be required to fully understand what rights the consumer is waiving by entering into the EULA.
If the software companies want total control of their product and they want to achieve this level of total control via complicated legal agreements, then they shouldn't be selling software to average consumers through normal retail channels.
Remember this one important fact: EULAs don't exist because they HAVE to. Software can easily be sold without an EULA. EULAs only exist because the software companies WANT them to. If the software companies can't deal with the fact they are trying to complicate the hell out of otherwise ordinary transactions, then it's their own damn fault.
This is precisely the type of case the USA needs to settle this matter once and for all. Cases like ProCD v. Zeidenberg (the currently going "Gold Standard" for enforceability of EULAs) only affirmed that EULAs are enforceable if they are voluntarily agreed to.
But what happens if you disagree? I'm unaware of any ruling that would indicate that you MUST return software if you disagree with the EULA. In fact, most cases -- including ProCD, use the UCC for analyzing EULAs. Here's my prediction of how such a case would go down:
The court would find that a CD or DVD containing software is, by definition, a "copy" of software [17 USC Sec. 101].
The court would find that ownership of the copy is transferred to the buyer once the buyer has physical possession of the copy [UCC 2-401(2)].
The court would find that, as owner of the copy, the buyer has a legal right to use the copy of software [17 USC Sec. 117].
The court would have no choice but to rule that the buyer has the right to use the software even if they refuse to agree to the EULA.
The beautiful thing about this hypothetical case is that the statutes involved are all very clear and unambiguous leaving very little room for interpretation by the courts. Of course, IANAL so I could be ridiculously wrong.
As an employee of TransGaming, I take offense to that generalization
Okay, so calling it things like a "bullshit emulation layer" may come off as a bit harsh. But please understand that this harshness is born out of customer frustration with the lack of quality and performance we experience in OS X, versus the exact same game in Windows. Instead of taking offense, take it for what it is: a sign that people might stop buying games using your product unless you can significantly improve its quality in the near term.
As for everything else you wrote, you pretty much just validated what I said. These games aren't true ports to the OS X platform. True ports would dispense entirely with the Windows APIs and work entirely with the native interfaces provided by OS X. I believe that EA's (and other companies') customers would be happier with the product if it was a true port. I understand that this makes the job much more difficult, which sucks for you, and may even mean that many games would simply never see a MacOS version, which sucks for everyone.
But what really sucks even worse is when you are a customer, and you have the expectation that Battlefield 2142 for the Mac is going to be just as nice as Battlefield 2142 for Windows, but after you pay your money (and forfeit your right to a refund by installing and using the software) you find out that it's not at all the experience you had been expecting.
So is this like using Wine to run Windows Games on Linux?
Yes, that's exactly what it is. The emulation layer is called Cider which is literally a fork from Wine (apparently from the days before Wine was GPL'd).
TransGaming has another emulation layer called Cedega which is for emulating Windows Games on Linux.
This "technology" provided by TransGaming is called "Cider". It's already been used to "port" some games to OS X. One such EA Game that I've already purchased was Battlefield 2142. And let me tell you, Cider leaves much to be desired. The poor performance imparted by this emulation layer causes it to play like it's on an old Pentium III machine, despite the fact that it's running on a quad-core Mac Pro. To top it off, the graphics quality, even when turned up all the way, is far lower than it should be. It seems as if the Cider emulation layer can't translate all of the DirectX APIs, so it only does some of the more basic ones, leaving advanced graphics effects out.
This is not what I would like to see as the future of gaming on OS X. I want to see *real* ports of games, not some bullshit emulation layer that makes the game think it is running on Windblows.
Slashdot Mirror
I just moved my domain from NS to No-IP. I did this after NS preemptively took down the Fitna website. I don't want to be doing business with a registrar that has no qualms about revoking a domain for no valid reason.
I was already using No-IP for dynamic DNS and found that their management tools are simple and their website is uncluttered (they don't spam every page with ads for the zillions of services like GoDaddy and some of the other big registrars).
Gasp! Heaven forbid that companies might actually give customers what they want! It's an OUTRAGE!!!
The buyer has already taken on the risk of loss because he assumed when leaving the store that he now held title (because this is the way title transfers unless stated otherwise). Now the software maker claims, ex post facto, that title transfers at a different time (or, puzzlingly, not at all). Contracts do not normally work this way. Indeed the purpose of contracts is to establish expectations before performance is carried out. ProCD's proposed method of contract formation allows for substantial performance to be completed (in fact all performance on the seller's part), and then for the terms to be decided upon afterward. Doesn't this strike you as just slightly bizarre?When, yes, but absolutely not "if". A sale must necessarily involve the transfer of title, otherwise it is not a sale and the contract is not a contract for sale and thus the contract is not subject to UCC Article 2: -- from UCC 2-101(1)
Furthermore, if the seller wishes to alter the UCC's default provisions for when title transfers, he must do so before the act occurs which normally triggers transfer of title, for reasons stated earlier.
But all this ignores one important oversight (perhaps the most important) that the ProCD court made: ProCD, the company, was not the seller. Best Buy was the seller. Best Buy, and only Best Buy, has authority under the UCC to determine the terms of the contract for sale.
And as I depart I'll leave you with one other thing to think about. Traditionally sales are contracts of finite duration. The seller offers to sell, the buyer accepts, the buyer pays, the seller delivers... and then it's done. What ProCD has done is created a new form of sale where the contract extends on indefinitely. The buyer is supposedly bound to continue performance for an indeterminate amount of time, while the seller's performance ends at the cash register (or even at the warehouse). So the buyer has to be on his toes ensuring that he performs for potentially years, while the seller can kick back, relax and drink that margarita with the money he's just earned. Again, doesn't this strike you as a bit bizarre, or at least off-kilter in favoring the seller a wee bit too much?
It sounds like in the end neither of us will be persuaded by the other's arguments. But it has been an interesting discussion nonetheless. Honestly, I would be happy to be persuaded to the other side, because I always prefer to be in agreement with the law of the land
It's not a false dichotomy. Either it is a license, or a sale. It cannot be both, for the following reasons:
Clearly, the software company cannot retain ownership (required for a license) but still sell the item (transferring ownership). Which of the above two points do you disagree with?
Where is there a case that specifically states that the transaction is both a sale and a license? Every case that I'm aware of has ruled one way or the other. ProCD and similar assert that the transaction is a sale and that, despite it's name, the EULA is not a license, but merely a part of the contract for sale. This is not the same as saying it is both a sale and a license.
To turn Judge Easterbrook's own reasoning against him: there's nothing in the UCC that requires the buyer to maximize the seller's net gains. There's nothing that would prevent software manufacturers from selling direct to end-users, and requiring the end users to agree to their terms before they are willing to part with the software. The software companies could thereby exert the control they desire. The courts need not distort the meaning and intent of the UCC in order to support this business model.
Yes, that is the current state of affairs, but not what I was getting at. A large missing piece of the puzzle is what happens when the end-user says, "Sorry, I do not accept your license, but I assert that I own this copy of software and I will not return it." Even with ProCD, this situation has not been covered. The ProCD court only bound Zeidenberg to the EULA because he had explicitly assented to it's terms. But what if he hadn't? The court indicated that he had a right to return, but not an obligation to return. What's more, the plain and unambiguous language of UCC 2-401(2) makes it clear that by the time Zeidenberg had the copy in his possession, he was the rightful owner of it. This would have made it difficult for the court to assert that he had an obligation to return the copy upon rejection of the license.
Indeed, it would be difficult for any court to say that the buyer has an obligation to return if he does not agree with the EULA. For one, by the time the EULA is read, the buyer has already taken on the risk of loss, theft, or damage to the goods -- something which cannot be undone. There is a reason why the UCC generally ties the transfer of risk of loss to the transfer of title, such that they both transfer at the same time. For a court to allow only risk of loss to transfer, while ownership does not, would be patently unfair to the buyer and contrary to the word of the UCC.
This is not the same as the Gateway case, where the court found the buyer assented to the terms by lack of action. I'm talking about a user taking proactive steps to let the software maker know that the license has been rejected. No case law I'm aware of covers this angle, and in my view the overall issue of enforceability of EULAs won't b
And the sales tax argument is not a red herring, because in most jurisdictions where the sale of software is taxed it's taxed because it is considered the sale of a good. Not for any other reason.
Again, the court cannot look solely at intent. Yes intent is important, but the court must also consider external factors -- even if the intent of the contract is clear. Again, the court in One Stop failed to do any such analysis, and I find their argument to therefore be less persuasive than the SoftMan court's in which they did a pretty good economic analysis of the transaction.
It really boils down to my favorite leagal argument, "If it looks like a duck and quacks like a duck..."
*Incidentally, this brings up an interesting situation in view of ProCD's reasoning. If ProCD (or any manufacturer) can act as the seller in a retail transaction, then the manufacturer should be responsible for collecting sales tax from the transaction -- not the retailer. This is just one other problem with the ProCD opinion.
Right, ProCD never got far enough to consider copyright. But it determined that software is sold, as a good, in the traditional sense. Calling it a license is simply playing with words.
I'd be very interested in hearing any arguments as to why the result in One Stop is any more convincing than that of SoftMan. I'm not familiar with the other two cases you cite, but as I recall, in One Stop the court basically said, "The software companies all say they license it, so it's a license". This reasoning smacks of a court trying to reach the result that seems just, by whatever means possible.
The SoftMan court examined the reality of the situation, and said, "You know what? It doesn't matter if you say you are licensing it, the reality is that this transaction fits the definition of a sale, and therefore it is a sale."
Characterizing a transaction based on the economic realities of that transaction is clearly a more sophisticated approach than simply going by the claims of the parties involved. Sure, the intent of parties must be considered when examining contracts, but the court must examine other factors, such as economic realities, as well. The One Stop court failed to do this.
You keep insisting that it's a license because the EULA says so. But, again, the EULA cannot change reality. If the economic and physical realities disagree with what the EULA says, then the EULA is simply wrong. We don't instead try to distort reality to attempt to make it fit with the EULA's claims. The majority of courts have repeatedly confirmed this (and yes, as always, there have been exceptions).
Well, that seems an awful lot like advertising that your software does, let's say, people's taxes, but in reality it's just a tight loop that does absolutely nothing useful.
It doesn't change anything. The software maker is still attempting to prevent you from using the software (for it's intended purpose). That's not something a court is likely to overlook.
"can't be both a sale and not a sale at the same time", that is.
A license agreement can't change reality just by making claims.
Every court that has ever addressed the issue of enforceability of EULAs has applied Article 2 of the UCC to them. Guess what Article 2 is titled -- "Sales". Just because the EULA says that the software is not sold, doesn't mean it isn't. Right now, the majority of courts have agreed that these are sales and that the EULA is part of the contract for sale.
The contract can both be a sale and not a sale at the same time. The "licensed, not sold" language is an attempt to distort reality and so far it has not worked. Courts that have ruled that EULAs are enforceable have done so for other reasons, not because they believe that the software is not sold.
There is nothing in the law that says that manufacturers are required to provide any kind of warranty along with the product they manufacturer. The seller (a retail store in the case of retail sales) makes certain implied warranties unless they are expressly disclaimed. This is nothing that software companies need be concerned about.
And if you think software companies don't care about the rest of the EULA, why not just ignore all those other terms, let your friendly neighborhood software company know you are disregarding them, and see what they have to say about it.
However, I don't think this detracts from your coercion argument. Even if the EULA is considered to be an extension of the contract for sale that was begun in the store, the buyer has already taken on the responsibilities of ownership by the time the EULA is presented (e.g. risk of loss, theft, or damage to the goods in transit to the buyer's home). Therefore the buyer must also obtain the rights of ownership. One of the rights of ownership of software is the right to use the software with a computer (section 117 of the Copyright Act bestows this right). The EULA is an attempt to interfere with this right.
So, even if the EULA is viewed as an extension of the contract for sale, any terms in the EULA that interfere with the buyer's ownership rights are, by that time, unconscionable. And the attempt to force the user to agree to those unconscionable terms is still coercion.
Another test they fail: conscionability.
The entire premise of EULAs rests on this notion that the end-user does not own their copy of the software (hence the clause "This software is licensed, not sold"). Which is why you need to agree to the EULA to obtain permission to use the software (if you owned your copy, you wouldn't need permission to use it).
But courts have over and over treated EULAs as contracts for the sale of goods (even in cases where the enforceability of EULAs has been upheld). If the contract is supposedly for a sale of goods, but one of the foundational terms of the contract says "this is not a sale of goods", then that term and any other terms that depend on it are unconscionable.
Unfortunately, I do not think any reasonable U.S. judge would find that such shenanigans would constitute "acceptance" on the part of the electronic agent. It's pretty clear that no reasonable person would believe that the agent would be capable of interpreting the modified contract and making an informed decision as to whether or not it should be accepted.
I think such an attempt would be very frowned upon by most judges. They might even find that you acted in bad faith, and I'm sure that would lead to nothing but bad news for you.
Unless there is something in the UCC that might specifically allow for such things when dealing with electronic agents... which I suppose there may be. Seems like a long shot though, and probably not worth the risk of seriously annoying a federal judge.
I already have the right to use it (17 USC Sec. 117 gives me, as owner of the copy, that right), and the store was the previous owner and would be the only entity capable of purporting to transfer that right to me. No consideration. No contract.
IAANAL, but believe your understanding is incorrect. 17 USC Sec. 117 says that the owner of a copy of a computer program can make any copies necessary to use the program with a computer. If installing the software to your hard drive is a necessary step for using it (it usually is), then there is no copyright infringement.
The tricky bit comes in when you start asking who is the "owner" of the copy. I think the answer is obvious in cases of retail sales of software. But, in the U.S. at least, the courts have not made it entirely clear.
Another way of looking at it:
Software companies shouldn't offer to sell software directly to average consumers through retail channels. The software companies have armies of lawyers who fully understand the legal issues involved in the EULA. These lawyers also understand that the average consumer will not have the firm grasp of contract and copyright law, which would be required to fully understand what rights the consumer is waiving by entering into the EULA.
If the software companies want total control of their product and they want to achieve this level of total control via complicated legal agreements, then they shouldn't be selling software to average consumers through normal retail channels.
Remember this one important fact: EULAs don't exist because they HAVE to. Software can easily be sold without an EULA. EULAs only exist because the software companies WANT them to. If the software companies can't deal with the fact they are trying to complicate the hell out of otherwise ordinary transactions, then it's their own damn fault.
But what happens if you disagree? I'm unaware of any ruling that would indicate that you MUST return software if you disagree with the EULA. In fact, most cases -- including ProCD, use the UCC for analyzing EULAs. Here's my prediction of how such a case would go down:
The beautiful thing about this hypothetical case is that the statutes involved are all very clear and unambiguous leaving very little room for interpretation by the courts. Of course, IANAL so I could be ridiculously wrong.
As for everything else you wrote, you pretty much just validated what I said. These games aren't true ports to the OS X platform. True ports would dispense entirely with the Windows APIs and work entirely with the native interfaces provided by OS X. I believe that EA's (and other companies') customers would be happier with the product if it was a true port. I understand that this makes the job much more difficult, which sucks for you, and may even mean that many games would simply never see a MacOS version, which sucks for everyone.
But what really sucks even worse is when you are a customer, and you have the expectation that Battlefield 2142 for the Mac is going to be just as nice as Battlefield 2142 for Windows, but after you pay your money (and forfeit your right to a refund by installing and using the software) you find out that it's not at all the experience you had been expecting.
TransGaming has another emulation layer called Cedega which is for emulating Windows Games on Linux.
This "technology" provided by TransGaming is called "Cider". It's already been used to "port" some games to OS X. One such EA Game that I've already purchased was Battlefield 2142. And let me tell you, Cider leaves much to be desired. The poor performance imparted by this emulation layer causes it to play like it's on an old Pentium III machine, despite the fact that it's running on a quad-core Mac Pro. To top it off, the graphics quality, even when turned up all the way, is far lower than it should be. It seems as if the Cider emulation layer can't translate all of the DirectX APIs, so it only does some of the more basic ones, leaving advanced graphics effects out.
This is not what I would like to see as the future of gaming on OS X. I want to see *real* ports of games, not some bullshit emulation layer that makes the game think it is running on Windblows.
I never have my mod points when I need them. That's probably the most insightful comment I've seen all week.