If one party of a contract does not uphold the contract, the entire contract is still in effect. However, the party in violation can be sued to force them to comply with the contract.
It isn't that straightforward since the user did not agree to the contract. Judge Eserman placed a lot of emphsis on the Refund Clause when he ruled the EULAs were binding contracts. It was not under judicial notice that the majority of retail stores have a "no refund" policy on opened software.
Let's assume that MS is correct when they claim that you did not buy the copy, only the right to use the software and only if you agree to the EULA. Since you did not agree to the EULA, MS says you can't use it. However, you have already paid for it before MS showed you the terms of the contract. If MS won't give you a refund and won't let you use the software, MS received money for nothing. How is that any different from a contractor who takes your money but doesn't prefomr the work?
The WinXP EULA [flobi.com] states:
You agree to be bound by the terms of this EULA by installing, copying, or otherwise using the product. If you do not agree, do not install or use the product; you may return it to your place of purchase for a full refund.
Unfortunately for microsoft, Section 117(a)(1) of the copyright law gives the legal owner of software the explicit right to install and use the software without the owner's permission.
From Judge Esterman's decision in ProCD:
"Rights "equivalent to any of the exclusive rights within the general scope
of copyright" are rights established by law -- rights that restrict the
options of persons who are strangers to the author. Copyright law forbids
duplication, public performance, and so on, unless the person wishing to
copy or perform the work gets permission; silence means a ban on copying. A
copyright is a right against the world. Contracts, by contrast, generally
affect only their parties; strangers may do as they please, so contracts do
not create "exclusive rights." Someone who found a copy of SelectPhone
(trademark) on the street would not be affected by the shrinkwrap license
-- though the federal copyright laws of their own force would limit the
finder's ability to copy or transmit the application program."
You're right, as long as the book was just under copyright and you didn't agree to any other license. If you did agree to some, say, shrinkwrap book license, you'd have to obey that license.
I think the case that established the first sale doctrine involved a form of shrink-wrap license which the court struck down.
Just by keeping and using the computer, they're agreeing to the licenses that came in the box, whether or not they read them. Hill v. Gateway 2000
Thanks for the link. Unfortunetly, I was it after I did my other post. The judge felt that Gateway's advertisement of "limited warrenty" as the functional equivelent of "terms to follow".
ProCD opened the has opened the flood gates. The judge in the Gateway case relied heviely on ProCD. This ruling means that a quirk that was limited to software can now be applied to all other purchases. What's next? EULAs for toasters?
Yep,various circuit courts have ruled differently. However, all the opinions I have read dealt with retail software, which has a notice on the box that says that you must accept the EULA before you can use the software.
But, are you informed that you must accept the EULA before using the software when you buy a PC before you pay for the computer? (I don't know the answer since I buy whiteboxs and build it myself. For the rest of this post, I will assume that it is not made clear to the pursher of a computer that he does not own the software before the OEM takes his money.) If not, the software companies have a problem.
The offeree must disclose all material terms of the contract before you "sign" the contract. (There is an exception if is pointed out that there are additional terms to be disclosed later. The judge in the ProCD case felt the notice on the box meet that condition.) If one party tries to modify the terms, the other party has the option to accept the new terms or continue under the original contract.
When you purchase (a purchase is considered a contract), you are the legal owner of it and everything that came with it. Say you bought a VCR that included a demo tape. You are the legal owner of that tape. No amount of shrinkwrap verbiage around that tape can change that since that would be considered a material change to the oringanl contract.
And, since Section 117(a)(1) of the copyright explicitly gives the legal owner a copy of software the right to install and use that software without the author's permission. I would think that you are not bound by the terms of the EULA.
The publisher's line will be that all you bought is the physical media and a license,
Do you any references where a software manufacture eplictitly said that you "bought the physical media"? I would think that they would deny that you bought anything except the license to use the software for the above reasons.
Some more food for thought. The following is a quote from the ProCD opinion which upheld the EULA:
Someone who found a copy of [the software product] on the street would not be affected by the shrinkwrap license -- though the federal opyright laws of their own force would limit the finder's ability to copy or transmit the application program.
The real problem with UCITA isn't that some of the terms may cross the line.
Don't get me wrong. I am no fan of UCITA or click-wrap licenses! I feel that click-wrap licenses are a way for software companies to "cherry-pick" the advantages of mass market retail sales and contract law while minimizing the disadvantages each. Specifically, contract, trade secrets, and consumer sales.
mass market sales: Sales: Advantage: mass exposure, low overhead for distribution, leads to impulse buying. Disadvantage: Most states have laws protecting consumers.
contract law: Advantage: can opt out of many of the restrictions concerning consumer law e.g. limiting damages, restricting use, etc. Disadvantage: high overhead because it requires that the salesman gets a signature before selling the product. This also reduces impulse buying.
The whole point of UCITA is to make a contract exist, with one of the parties to the contract not even knowing that a contractual agreement happened at all.
Getting a signature on the dotted line woud reduce that. However, the real fraud, IMO, is the fact that the software companies KNOW (and I believe, but can't prove that they also require) that all retail outlets have a no refund policy on opened software. Yet, they put the "refund" clause in every EULA so they "technically" meet all the requirements for a binding contract knowing full well that the consumer will have a difficult time obtaining a refund.
Which if I remember right is largely a common law matter set through a whole laundry list of precedent, much of which leads back to decisions on constitutional issues.
Common law, contract law, and the "unclean hands" principle goes back long before there was a constitution.
[rooftop antennas]
Congress passes a law; and, the courts refuse to enforce any contract clause that will violate that law. Where is the constitutional issue?
I'm unable to think of a non-compete clause in a contract which does not impact an individual's employment prospects but does impact that individual's rights. Perhaps you could offer an example?
Sure. I recently signed one. It was a contract to resell a company's services. There was a non-compete clause that prohibits me from participating, as an owner, in any other company that sells a similar service. Employment was specifically excluded from that clause.
The body of law that supports it is challenged instead, and if challenged successfully then the contract clause is voided based on the revised body of law.
Not every court ruling is based on constitutional issues. As I pointed out Common Law and Contract Law were around long before the constitution. As someone else has pointed out, the constitution is a limit on government, not individuals.
"Constitutionality" is not grounds for challenging a contract's clause. And, until it is, saying a clause "voilates the constituion" is meaningless. I stand by my original comment: There is no constitutional limit on contracts. I will stand by that statement until I see one case where a judge through out a contract's clause based on that reason.
You haven't demonstrated that it is false since none of your examples has anything to do with the constitutuion.
NDA's can't prevent you from whistle-blowing on criminal misconduct, for example.
Depending on the particulars, this would fall into the "unclean hands" (judges will not enforce a contract that requires a party to violate the law) or the norms of society (It is against the best interest of society to allow a criminal to escape justice because of a contract). It has noting to do with the constitution.
You can still sue and win after signing an arbitration clause...
You admit that your chances of winning are minimal unless you go to arbitration first and can prove that the arbitrator was unreasonablly biased. Not a constitutional issue.
You can put up to a 1-meter dish or antenna on your house regardless of any covenants you agree to,
I would like to see a case where it said that.
only the most narrowly defined non-competes are upheld in court.
You are probably thinking of non-compete in employment contracts. Non-compete clauses in business contracts aren't usually given that kind of scrutiny. And, the reasons for this are that it doesn't serve the best interests of society to prevent a person from working in the field he was trained and the bargining positions of the parties.
I do not mean to imply that contract clauses are iron-clad. Judges through them out clauses, and entire contracts, for a host of reasons. However, I am not aware of any being thrown out because the clause was unconstitutional.
How can they limit public criticism? Isn't that a serious violation of the first amendment?
There is no constitutional limit on what clauses a contract can contain.
NDA clauses (I will show you my trace secrets as long as you promise not to tell anyone else) limit "free speech".
Arbitration clauses limit your right to have courts address wrongs.
Covenants (you can buy the house, but you can't put a satellite dish on the roof) limit what you can do with your private property.
Non-compete clauses limit the jobs you can take.
All of the above types of clauses have been upheld by the courts. The courts will only void a clause that violates the norms of society. (You can't sell yourself into slavery.)
Having said all that, I think the no-criticism clauses step accross that line.
Perhaps you don't want to buy the software, take it home, open the box, find out you can't accept the EULA, and then discover on attempting to return it that you can't get your money back either?
I tried this 2 to 3 weeks ago. I bought a copy of MS Money from Staples, took it home, started the installation since there was no paper copy of the EULA till I got to the EULA, printed out the EULA, and took it back for a refund.
I fully expected to get the runaround. The store saying they don't give refunds while MS tells me to take it back to the store. To my surprise, I managed to talk the manager into giving me a refund. (That makes me 3 for 3 on obtaining refunds on opened software. The first two had nothing to do with EULA issues.)
The turning point was the printed EULA. The text on the box said "return for a refund" without specifing where or how to do the return. However, the EULA said "return to the place of purchase for a refund".
I had highlighted the "magic phrase" and pointed out that they were authorized resellers of MS software and asked why they weren't honoring the EULA. At that point, the manager made a copy of that page of the EULA and gave me a cash refund.
An interesting sidenote. Money actually installed all the software before showing the EULA. I had to finesse the question: "Did you install the software?" I answered: "I went as far as I had to until I was able to read the EULA".
I am convinced, although I have no proof, based on my conversations with managers when obtaining refunds on software, that MS not only knows, but requires, stores to have the "no refund" policy.
Existing copyright law would require that you buy separate physical copies
Not quite true. Copyright law allows you to make copies for personal use. The courts have ruled that you are allowed to "format shift" copies of music for your personal use. That is, you buy a CD and you are legally allowed to rip it and put a copy on your computer for your personal use. I am not aware of any law or court ruling that says this does not apply to software. Without an EULA prohibiting it, I would be allowed to buy software, install it on my workstation and laptop, as long as I am the only person that uses both of them and both are not in use at the same time.
I am also doubtful of your statement even if the above wasn't true. Copyright law requires that you pay for every copy you use. This clause also requires the same thing. You must pay full market value for every copy that you use. The only difference is that the clause saves MS, not the user, a couple of bucks because they don't have to send a seperate CD.
Sorry, don't see how that is any additional right you don't have under copyright law.
you must acquire and dedicate a license for each separate COMPUTER on or from which the SOFTWARE PRODUCT is installed, used, accessed, displayed or run.
That clause says that you must pay for a seperate copy of the software for each computer on which it is installed. How is this different existing copyright law?
Every EULA I've ever read granted additional rights, and removed others.
I have read a few MS EULAs; and, I don't recall seeing any rights their EULA gives you that doesn't already exist for a legally obtained copy of software. Can you give an example?
The law only applies to one side of the debate. The critics of Nike can not be sued under this ruling. When a law only applies to one side of the debate, that side is stifled.
I have read through the replies and noticed that many peope, in their haste to punish Nike, are failing to make importent distinctions.
First, may people are hung up on the fact that Nike is a coperation, and, in their opinion should not have a first amendment right to free speech. Read the article again! The ruling wasn't about the right of corperations. It was about commercial speech. That includes partnerships, privately owned companies, and one man shops.
This effectively hampers one side of a policy debate as long as they arrive some economic benifit from the policy. Substitute an abortion clinic for Nike. Both are corperations. Both received economic benifit from the activity. Both strong positions on the debate. However, they can get sued under this law because they receive an economic benifit from the policy; while, their oppenents are immune under this ruling because they receive no economic benifit.
Second, there are two meaning of the word "advertisement". The first is copy ment to sell a product. The second is buying space in a newspaper, or other media, to express your opinion. The Nike ad fails into the second category; not the first. The "false advertising" laws only apply to the first category. In order to reach their conclusion, the court had to do some contortions to make the Nike ad be covered by the "false adversting laws. Note that Nike's critics can not be sued under this law, even if they blantely use false statistics.
This gives free reigh to one side of the debate; but, hampers the other side. Nike, or abortion clinics, can be hauled into court by their oppenents and be forced to "prove" every statement made in their "ads" were factually correct. Nike, or the abortion clinics, can not do the same to their critics.
Third, a lot of posters made comparisions to slander and libel laws; but, failed to realize that the lawsuit is not about either. Slander or libel are when you knowingly make false statements about someone else. The high burden of proof in these cases is on the plaintiff. They must prove that the statements are false and that the defendant knew they were false.
This case flips the burden of proof onto the defendant who has to prove that the statements are 100% correct. Believing the statement to be true is not a defense, unlike the libel and slander laws.
When is someone going to take these things before a Judge?
It has already been before a judge. ProCD vs Zeidenberg The judge held that the EULA was a legally binding contracts. There have been other cases, e.g. Step-Saver, which held that they were not enforceable; but these had other factors, e.g. the software was bought with a P.O. with some standard legalese on it. The judge ruled that the P.O. was the binding contract.
If you have a minor do it, then you get busted as if you agreed to the EULA, AND for contributing to a minor's criminal behavior
Where did you get this idea? It is perfectly legal for a minor to sign a contract. The problem is that the other party can not enforce the contract. The minor can renege on his contractual obligations and the other party has no legal recourse.
Re:Saw something similar about EULAs in general
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What happens if I buy software, disagree with the license, try to return it, but the store refuses to accept the return?
An excellent question! The judge placed a lot of weight to the "return for a refund" clause. Zeidenberg never attempted to get a refund. Nor, could he claim he didn't know the licensing terms when he bought it since he bought the same package the previous year. Because of that, the fact that every retail store (at least all the ones I have been in) have a "no refund" policy on open software. I assume that it would have affected the outcome since the judge placed so much emphasis on the "refund clause".
It's sad that we have to be so informed on the law (or hire a lawyer) just to open a box of software, but that's the way it is.
Buying software online is even worse since, in many cases, you have to agree to the license before you can download the software. The software vendors have done everything to maximize the likelyhood that you will click on "I agree" without reading the license. The put 3 - 4 pages of mind-numbing legalese in a tiny scroll box without the option of printing the license. You would have to get an attorney to make house-calls if you wanted legal advise on the license.
Re:Saw something similar about EULAs in general
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hat is a contract which exists separately from the contract to buy the physical media. And that contract is only valid if there is consideration for both parties, as well as some kind of assent of both parties. The right to use the software is not consideration
I agree with you that clickwrap licenses should not be considered a valid contract. Unfortunately, the courts, specifically the Seventh Circuit, does not agree. see ProCD vs Zeidenberg
Re:Saw something similar about EULAs in general
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If you paid Microsoft, maybe you can use this argument, but if you paid someone else, then any "contract" is between you and them.
From one of the licenses I found on my hard drive:
IMPORTANT READ CAREFULLY: This Microsoft End-User License Agreement (EULA) is a
legal agreement between you (either an individual or a single entity) and Microsoft Corporation for the Microsoft software product identified above, which includes computer software and associated media and printed materials, and may include online or electronic documentation (SOFTWARE PRODUCT or SOFTWARE).
It appears that even though I bought the software from a retailer, Microsoft thinks it is a contract between them and me.
Take your pick of any software retailer, Best Buy, K-mart, Office Depot, etc. They all have the same return policy. No refunds on opened software. They will allow trade-ins for the same title if the product is defective.
I know that I spent a half-hour (that is not an exaggeration) arguing with the clerks and managers at Best Buy each time I asked for a refund on an opened software package. (For the record, neither refund request was due to a disagreement over the license.)
I only got a refund the first time because because the floppies were corrupted and would not let me install the software. I originally agreed to a "trade-in" except they had no other copies of the software and none of their other stores in the area had copies. Yes, the manager did call other stories to see if they had a copy of it.
The second time was because I could not install the software on my computer at all due to the installation program of the software. A trade-in would not have been any value since any trade-ins would also not install. A had a print-out of an email from the vendor telling me to take it back for a refund. After a long arguement, the manager finally relented telling the clerk, "Give him back his money. That company will refund the money to us."
Really? Do you have a link that specifies their return policy? Every EULA I have says that I have to take it to the place of purchase for a refund if I do not agree with the license.
Under UCITA, a clause in the EULA that says "By opening the shrink-wrap, you accept this EULA" would be valid, even if you have to open the package BEFORE you can read the EULA!
No. UCITA makes "click-wrap" valid contracts. It does not make "Shrink-wrap" valid contracts.
Under the original version of UCITA, the customer had a Right-to-Return on any software that he did not agree with the license. However, it was a right that could be waived. When Maryland passed it, it said that the consumer could not waive this right. However, I haven't seen any changes to the posted stores refund policy yet.
Slashdot Mirror
It isn't that straightforward since the user did not agree to the contract. Judge Eserman placed a lot of emphsis on the Refund Clause when he ruled the EULAs were binding contracts. It was not under judicial notice that the majority of retail stores have a "no refund" policy on opened software.
Let's assume that MS is correct when they claim that you did not buy the copy, only the right to use the software and only if you agree to the EULA. Since you did not agree to the EULA, MS says you can't use it. However, you have already paid for it before MS showed you the terms of the contract. If MS won't give you a refund and won't let you use the software, MS received money for nothing. How is that any different from a contractor who takes your money but doesn't prefomr the work?
The WinXP EULA [flobi.com] states: You agree to be bound by the terms of this EULA by installing, copying, or otherwise using the product. If you do not agree, do not install or use the product; you may return it to your place of purchase for a full refund.
Unfortunately for microsoft, Section 117(a)(1) of the copyright law gives the legal owner of software the explicit right to install and use the software without the owner's permission.
From Judge Esterman's decision in ProCD:
I think the case that established the first sale doctrine involved a form of shrink-wrap license which the court struck down.
Just by keeping and using the computer, they're agreeing to the licenses that came in the box, whether or not they read them. Hill v. Gateway 2000
Thanks for the link. Unfortunetly, I was it after I did my other post. The judge felt that Gateway's advertisement of "limited warrenty" as the functional equivelent of "terms to follow".
ProCD opened the has opened the flood gates. The judge in the Gateway case relied heviely on ProCD. This ruling means that a quirk that was limited to software can now be applied to all other purchases. What's next? EULAs for toasters?
Yep,various circuit courts have ruled differently. However, all the opinions I have read dealt with retail software, which has a notice on the box that says that you must accept the EULA before you can use the software.
But, are you informed that you must accept the EULA before using the software when you buy a PC before you pay for the computer? (I don't know the answer since I buy whiteboxs and build it myself. For the rest of this post, I will assume that it is not made clear to the pursher of a computer that he does not own the software before the OEM takes his money.) If not, the software companies have a problem.
The offeree must disclose all material terms of the contract before you "sign" the contract. (There is an exception if is pointed out that there are additional terms to be disclosed later. The judge in the ProCD case felt the notice on the box meet that condition.) If one party tries to modify the terms, the other party has the option to accept the new terms or continue under the original contract.
When you purchase (a purchase is considered a contract), you are the legal owner of it and everything that came with it. Say you bought a VCR that included a demo tape. You are the legal owner of that tape. No amount of shrinkwrap verbiage around that tape can change that since that would be considered a material change to the oringanl contract.
And, since Section 117(a)(1) of the copyright explicitly gives the legal owner a copy of software the right to install and use that software without the author's permission. I would think that you are not bound by the terms of the EULA.
The publisher's line will be that all you bought is the physical media and a license,
Do you any references where a software manufacture eplictitly said that you "bought the physical media"? I would think that they would deny that you bought anything except the license to use the software for the above reasons.
Some more food for thought. The following is a quote from the ProCD opinion which upheld the EULA:
Don't get me wrong. I am no fan of UCITA or click-wrap licenses! I feel that click-wrap licenses are a way for software companies to "cherry-pick" the advantages of mass market retail sales and contract law while minimizing the disadvantages each. Specifically, contract, trade secrets, and consumer sales.
mass market sales: Sales: Advantage: mass exposure, low overhead for distribution, leads to impulse buying. Disadvantage: Most states have laws protecting consumers.
contract law: Advantage: can opt out of many of the restrictions concerning consumer law e.g. limiting damages, restricting use, etc. Disadvantage: high overhead because it requires that the salesman gets a signature before selling the product. This also reduces impulse buying.
The whole point of UCITA is to make a contract exist, with one of the parties to the contract not even knowing that a contractual agreement happened at all.
Getting a signature on the dotted line woud reduce that. However, the real fraud, IMO, is the fact that the software companies KNOW (and I believe, but can't prove that they also require) that all retail outlets have a no refund policy on opened software. Yet, they put the "refund" clause in every EULA so they "technically" meet all the requirements for a binding contract knowing full well that the consumer will have a difficult time obtaining a refund.
Which if I remember right is largely a common law matter set through a whole laundry list of precedent, much of which leads back to decisions on constitutional issues.
Common law, contract law, and the "unclean hands" principle goes back long before there was a constitution.
[rooftop antennas]
Congress passes a law; and, the courts refuse to enforce any contract clause that will violate that law. Where is the constitutional issue?
I'm unable to think of a non-compete clause in a contract which does not impact an individual's employment prospects but does impact that individual's rights. Perhaps you could offer an example?
Sure. I recently signed one. It was a contract to resell a company's services. There was a non-compete clause that prohibits me from participating, as an owner, in any other company that sells a similar service. Employment was specifically excluded from that clause.
The body of law that supports it is challenged instead, and if challenged successfully then the contract clause is voided based on the revised body of law.
Not every court ruling is based on constitutional issues. As I pointed out Common Law and Contract Law were around long before the constitution. As someone else has pointed out, the constitution is a limit on government, not individuals.
"Constitutionality" is not grounds for challenging a contract's clause. And, until it is, saying a clause "voilates the constituion" is meaningless. I stand by my original comment: There is no constitutional limit on contracts. I will stand by that statement until I see one case where a judge through out a contract's clause based on that reason.
When have they claimed this?
You haven't demonstrated that it is false since none of your examples has anything to do with the constitutuion.
NDA's can't prevent you from whistle-blowing on criminal misconduct, for example.
Depending on the particulars, this would fall into the "unclean hands" (judges will not enforce a contract that requires a party to violate the law) or the norms of society (It is against the best interest of society to allow a criminal to escape justice because of a contract). It has noting to do with the constitution.
You can still sue and win after signing an arbitration clause...
You admit that your chances of winning are minimal unless you go to arbitration first and can prove that the arbitrator was unreasonablly biased. Not a constitutional issue.
You can put up to a 1-meter dish or antenna on your house regardless of any covenants you agree to,
I would like to see a case where it said that.
only the most narrowly defined non-competes are upheld in court.
You are probably thinking of non-compete in employment contracts. Non-compete clauses in business contracts aren't usually given that kind of scrutiny. And, the reasons for this are that it doesn't serve the best interests of society to prevent a person from working in the field he was trained and the bargining positions of the parties.
I do not mean to imply that contract clauses are iron-clad. Judges through them out clauses, and entire contracts, for a host of reasons. However, I am not aware of any being thrown out because the clause was unconstitutional.
There is no constitutional limit on what clauses a contract can contain.
NDA clauses (I will show you my trace secrets as long as you promise not to tell anyone else) limit "free speech".
Arbitration clauses limit your right to have courts address wrongs.
Covenants (you can buy the house, but you can't put a satellite dish on the roof) limit what you can do with your private property.
Non-compete clauses limit the jobs you can take.
All of the above types of clauses have been upheld by the courts. The courts will only void a clause that violates the norms of society. (You can't sell yourself into slavery.)
Having said all that, I think the no-criticism clauses step accross that line.
I tried this 2 to 3 weeks ago. I bought a copy of MS Money from Staples, took it home, started the installation since there was no paper copy of the EULA till I got to the EULA, printed out the EULA, and took it back for a refund.
I fully expected to get the runaround. The store saying they don't give refunds while MS tells me to take it back to the store. To my surprise, I managed to talk the manager into giving me a refund. (That makes me 3 for 3 on obtaining refunds on opened software. The first two had nothing to do with EULA issues.)
The turning point was the printed EULA. The text on the box said "return for a refund" without specifing where or how to do the return. However, the EULA said "return to the place of purchase for a refund".
I had highlighted the "magic phrase" and pointed out that they were authorized resellers of MS software and asked why they weren't honoring the EULA. At that point, the manager made a copy of that page of the EULA and gave me a cash refund.
An interesting sidenote. Money actually installed all the software before showing the EULA. I had to finesse the question: "Did you install the software?" I answered: "I went as far as I had to until I was able to read the EULA".
I am convinced, although I have no proof, based on my conversations with managers when obtaining refunds on software, that MS not only knows, but requires, stores to have the "no refund" policy.
Not quite true. Copyright law allows you to make copies for personal use. The courts have ruled that you are allowed to "format shift" copies of music for your personal use. That is, you buy a CD and you are legally allowed to rip it and put a copy on your computer for your personal use. I am not aware of any law or court ruling that says this does not apply to software. Without an EULA prohibiting it, I would be allowed to buy software, install it on my workstation and laptop, as long as I am the only person that uses both of them and both are not in use at the same time.
I am also doubtful of your statement even if the above wasn't true. Copyright law requires that you pay for every copy you use. This clause also requires the same thing. You must pay full market value for every copy that you use. The only difference is that the clause saves MS, not the user, a couple of bucks because they don't have to send a seperate CD.
Sorry, don't see how that is any additional right you don't have under copyright law.
That clause says that you must pay for a seperate copy of the software for each computer on which it is installed. How is this different existing copyright law?
I have read a few MS EULAs; and, I don't recall seeing any rights their EULA gives you that doesn't already exist for a legally obtained copy of software. Can you give an example?
The law only applies to one side of the debate. The critics of Nike can not be sued under this ruling. When a law only applies to one side of the debate, that side is stifled.
On the other hand, if Nike knowingly lies about Nike's policies and procedures, I can take them to court.
No, it is not an even playing field. An even playing field would be either:
You lie about Nike's practices, they take you to court. Nike lies about your practices, you take them to court.
or
Nike lies about its practices, you take them to court. You lie about your practices, Nike takes you to court.
First, may people are hung up on the fact that Nike is a coperation, and, in their opinion should not have a first amendment right to free speech. Read the article again! The ruling wasn't about the right of corperations. It was about commercial speech. That includes partnerships, privately owned companies, and one man shops.
This effectively hampers one side of a policy debate as long as they arrive some economic benifit from the policy. Substitute an abortion clinic for Nike. Both are corperations. Both received economic benifit from the activity. Both strong positions on the debate. However, they can get sued under this law because they receive an economic benifit from the policy; while, their oppenents are immune under this ruling because they receive no economic benifit.
Second, there are two meaning of the word "advertisement". The first is copy ment to sell a product. The second is buying space in a newspaper, or other media, to express your opinion. The Nike ad fails into the second category; not the first. The "false advertising" laws only apply to the first category. In order to reach their conclusion, the court had to do some contortions to make the Nike ad be covered by the "false adversting laws. Note that Nike's critics can not be sued under this law, even if they blantely use false statistics.
This gives free reigh to one side of the debate; but, hampers the other side. Nike, or abortion clinics, can be hauled into court by their oppenents and be forced to "prove" every statement made in their "ads" were factually correct. Nike, or the abortion clinics, can not do the same to their critics.
Third, a lot of posters made comparisions to slander and libel laws; but, failed to realize that the lawsuit is not about either. Slander or libel are when you knowingly make false statements about someone else. The high burden of proof in these cases is on the plaintiff. They must prove that the statements are false and that the defendant knew they were false.
This case flips the burden of proof onto the defendant who has to prove that the statements are 100% correct. Believing the statement to be true is not a defense, unlike the libel and slander laws.
It has already been before a judge. ProCD vs Zeidenberg The judge held that the EULA was a legally binding contracts. There have been other cases, e.g. Step-Saver, which held that they were not enforceable; but these had other factors, e.g. the software was bought with a P.O. with some standard legalese on it. The judge ruled that the P.O. was the binding contract.
Where did you get this idea? It is perfectly legal for a minor to sign a contract. The problem is that the other party can not enforce the contract. The minor can renege on his contractual obligations and the other party has no legal recourse.
An excellent question! The judge placed a lot of weight to the "return for a refund" clause. Zeidenberg never attempted to get a refund. Nor, could he claim he didn't know the licensing terms when he bought it since he bought the same package the previous year. Because of that, the fact that every retail store (at least all the ones I have been in) have a "no refund" policy on open software. I assume that it would have affected the outcome since the judge placed so much emphasis on the "refund clause".
It's sad that we have to be so informed on the law (or hire a lawyer) just to open a box of software, but that's the way it is.
Buying software online is even worse since, in many cases, you have to agree to the license before you can download the software. The software vendors have done everything to maximize the likelyhood that you will click on "I agree" without reading the license. The put 3 - 4 pages of mind-numbing legalese in a tiny scroll box without the option of printing the license. You would have to get an attorney to make house-calls if you wanted legal advise on the license.
I agree with you that clickwrap licenses should not be considered a valid contract. Unfortunately, the courts, specifically the Seventh Circuit, does not agree. see ProCD vs Zeidenberg
From one of the licenses I found on my hard drive:
It appears that even though I bought the software from a retailer, Microsoft thinks it is a contract between them and me.
Take your pick of any software retailer, Best Buy, K-mart, Office Depot, etc. They all have the same return policy. No refunds on opened software. They will allow trade-ins for the same title if the product is defective.
I know that I spent a half-hour (that is not an exaggeration) arguing with the clerks and managers at Best Buy each time I asked for a refund on an opened software package. (For the record, neither refund request was due to a disagreement over the license.)
I only got a refund the first time because because the floppies were corrupted and would not let me install the software. I originally agreed to a "trade-in" except they had no other copies of the software and none of their other stores in the area had copies. Yes, the manager did call other stories to see if they had a copy of it.
The second time was because I could not install the software on my computer at all due to the installation program of the software. A trade-in would not have been any value since any trade-ins would also not install. A had a print-out of an email from the vendor telling me to take it back for a refund. After a long arguement, the manager finally relented telling the clerk, "Give him back his money. That company will refund the money to us."
Since ProCD v. Zeidenberg. Not all courts enforce this view, Step-Saver Data Sys., Inc. v. Wyse Technology & Software Link, Inc.
Hence, the reason software manufactorers are pushing UCITA which resolves all the legal ambiguity in the software manufactorer's favor.
If you do, let me know what the results are.
Really? Do you have a link that specifies their return policy? Every EULA I have says that I have to take it to the place of purchase for a refund if I do not agree with the license.
No. UCITA makes "click-wrap" valid contracts. It does not make "Shrink-wrap" valid contracts.
Under the original version of UCITA, the customer had a Right-to-Return on any software that he did not agree with the license. However, it was a right that could be waived. When Maryland passed it, it said that the consumer could not waive this right. However, I haven't seen any changes to the posted stores refund policy yet.