But "valid" in what sense? Is it a contract? It seems to meet none of the legal requirements of a contract.
True, a EULA is not a contract. It cannot be. But a EULA can be (and usually is) seen as general terms of business.
If you don't want to be bound to the license, your only recourse is not to use the software.
So you bought it, you own it, and you can't use it. That's not what I paid for. I bought something that said "use this for CAD" and I want to use if for CAD under reasonable terms. If I find their terms unreasonable after I've bought it, then how do I negotiate with them for terms we both can agree on? If no agreement can be reached (because a EULA has no mechanism for negotiation, and negotiation is one of the requirements of contracts), then it isn't a valid contract. Clicking "install now" isn't a legal decision, but a requirement to make the software work. Clicking "I agree" has nothing to do with whether I (or a reasonable person) actually agrees to everything in there, but is a button that must be pushed to use software already bought and paid for, no different and no more legally binding than "install now."
Your point is moot, as a EULA is not a contract. It it seen as general terms of of business. For consumers, those are not negotiable. At the time of purchase you implicitly agree to them.
In short:
A EULA usually constitutes general terms of business.
General terms of business must be legibly available before purchase to be valid, but they are not negotiable.
Your local law may have other restrictions, such as the right to make a backup copy, fitness for purpose, etc.
By purchasing, you agree to the terms / license.
If you cannot agree to the license because you find it unreasonable, unfair or because it uses the letter e on a monday, your only option is not to buy.
Note: that my understanding of law is heavily biased towards European law, as I live in the Netherlands.
What's a license and why do I need one? Isn't "I agree" simply an artistically decorated button to start the program?
This is not the case: simply saying "yes" is an agreement, with full legal consequences, provided it can be proven in court. With software, proving that you clicked "I agree" is much simpler. After all: without altering the program (which is not allowed without a license), the program won't install before you explicitly agree to the license.
Simply put, a license is an agreement giving you the right to use the software. Note that this actually to any copyrighted material, so it also covers the images, music, movies, etc. in a game. Without a license, you can only use software if you buy it: at least in the Netherlands there is a limited set of things you may do with software you bought without a license. But there is an important exception here as well: general terms of business.
EULA's are generally valid, even though you explicitly agree to them after you buy/download the software. The reason: they are the same for every user, and are thus general terms of business. There are of course a few restrictions: general terms of business must be legibly available before the sale/download. So a shrink-wrap license (which is not available before the sale/download) is not legally binding.
Many jurisdictions prohibit changing the conditions of sale after the sale. This also includes changes to a license, or the general terms of business, unless they state explicitly that they may change (which us extremely common). And even then there are restrictions in consumer law. For example, in the Netherlands, the changes must be made known to the user beforehand (a change on the website is not enough), well in advance (at least a month) and you have the option to decline. In that case, the contract/license is nullified (so you cannot use the software anymore) at no cost whatsoever.
So in short, a EULA is generally always valid. Your jurisdiction may enforce certain constraints though. For example, in the Netherlands I may always make a backup copy, regardless what the license says. Nor is any license term valid if it limits my right to free speech, for example by publishing benchmarks.
If you don't want to be bound to the license, your only recourse is not to use the software.
NOTE: I live in the Netherlands (Europe), and I have no legal training. Depending on my understanding and where you are, I may completely misrepresent your situation.
Exactly: the ruling said that selling software second-hand is entirely legal. Of course, the software is still covered by copyright and it's license, so you're really selling the license.
By effectively upholding the first sale doctrine, this judge did the right thing.
"Now we'll just pay for most of the bandwidth instead of them."
Exactly. And I'm not paying the distribution costs for someone else's commercial enterprise. On top of that, your ISP may even cut you off (do your ISP's general conditions say the connection is not to be used for commercial purposes?)
At some point a server at work was hacked. Since I connect to home using an SSH key, my home machine was compromised as well. My ISP then sent me an email, and cut off all access except: - email (it went via their spam filtering email server) - HTTP (if gone through their proxy; otherwise only their website)
This is a solution that also works for grandma, because she has no clue how to clean their computer, doesn't know how to find someone to pay to do this right, and doesn't want to burden the children with what she percieves to be an unimportant plaything (after all, the postal services still work).
they'd probably be wrong about where the problem is 90% of the time anyway.
I think you're on to something there... instead of educating people on the correct terminology just teach the name of something that is prone to having problems so they can be right *most* of the time."
Why teach a user terminology when it's not needed? I've told my mother not to use jarhon, only the terms she knows.
Instead, I've asked her to describe the what she sees compared to what she expected. MUCH more valuable, as it allows me to accurately diagnose any problem reliably and reasonably quickly.
Kind of like me interacting with a garage mechanic: I can name or describe the components I come into contact with, and describe the problem.
The mechanic can then find the actual problem quickly. It even works when you're dead wrong about a possible cause, like I was once when I had my bike repaired.
"I'm fairly certain that even if it is stolen, if you buy goods without knowledge that they are stolen (i.e., in good faith) you are considered a buyer in the ordinary course of business and you'll take free of any prior interests."
"There is no such legal concept as the "garage sale rule" with respect to stolen property."
WRONG: In the US, this rule doesn't exist. But in the Netherlands for example, there IS such a rule. There are some restrictions (most notably related to the price and the situation in which you bought it), and the person whom it was stolen from you can sue the thief for reimbursement.
"but at least I do a bit of fact checking before making a really outlandish claim."
You're probably in a jurisdiction where buying stolen goods in good faith is still a crime. But in some outlandish jurisdictions, this is perfectly fine.
"Also, they're both in the European Union, so the same directive that got TPB in Sweden can be re-used in the Netherlands."
Maybe not: in the Netherlands, there is an organization called "Stichting Thuiskopie" (foundation for home copying). They collect money from a wide range of data carriers, from the old cassette tapes to blank CD and DVD discs. This money is then distributed to the authorship right holders.
As a result, copying by private individuals is fully legal in the Netherlands (despite attempts by BREIN to have it otherwise). The only tricky part is this:
Can TPB successfully argue that not they, but their users make the copies? If not, they'll be blocked and/or convicted here as well. If so, they may still be required to block IP addresses not from the Netherlands (and we all know how effective that is).
It's not that they're treating us as criminals -- which in itself is reason enough not to buy music and listen to radio only. What's worse, is that they're treating us like lawyers. Because that's what all this legalese does. Nevermind that no layperson can really understand it, or wants to.
All these EULA's do is destroy any remnant of respect consumers may have for the record companies.
"Every single American living there hates the country with a passion and is counting the days until they can leave again."
That's ok: Many people in the Netherlands hate the US for booking foreigners like criminals at the border, the human rights situation (worse than China), the way politicians are openly bought and sold (with political power via campaign contributions) and most of all their hubris.
Then again, a humble person who is willing to learn our culture is likely to find this a pleasant country where nothing is hidden from you -- our national curse seems to be that we're too blunt.
Denise downloads the song--it's only at that moment that anything illegal was done, but it is Charlie, not Denise, who has broken the law.
Nope, they both have. Charlie and Denise have both infringed the reproduction and distribution rights of both the song writer and the recording artist. The RIAA has been choosing to sue only those who are making the tracks available (probably either because they think it's the cheapest way to get their message across, or because they haven't figured out a way to nail the downloaders without stirring up entrapment charges), but could go after both.
You're probably only thinking of the United States (given it's about the RIAA). But we all know who paid for the law there -- and why copyrights were extended retroactively (illegal in most countries) when the copyright on Mickey mouse was about to expire...
In other countries, downloading copyrighted material isn't necessarily illegal. Here in the Netherlands for example, downloading is perfectly legal. We even pay for it: there are levies on blank media, paid to the copyright holders via "Stichting de Thuiskopie". So for me, only Charlie has broken the (Dutch) law. Denise paid for her download via the levies on blank media.
On the contrary: it is to ensure that laws against pedophilic materials remain enforcable (both to stop it's creation and to stomp out the demand for it).
With advancing technology, we'll find that in the not too distant future (i.e. within a few years) it's possible that humans cannot distinguish between computer generated images and real photographs/video's. At that point, the claim that the photographs/videos are computer generated will be enough for a reasonable doubt -- especially if the defendant can show a website that (even falsely) claims that the material available is computer generated.
The only problem I see is that a law like this is easily written badly, and also banning computer generated material that is obviously fake. That would be a slippery slope.
If I (as a normal user for a change) see a popup like the one described, then even if I click "Yes" I'm not authorizing anyone to install anything on my computer. I'll be assuming something like an HTTPS cpnnection like my bank uses.
If the install of such a root-kit (or any other software) happens anyway, this is a case of unauthorized tresspass / cracking. At least where I live, there is a law against it (NL - it's called "Computervredebreuk"). In fact, because you appropriate data processing capacity (the keyboard), you qualify for the higher punishment.
Free market economies work best when prices are elastic; that is, where changes in price affect the demand for the product. This allows price to signal the level of available supply and prevent shortages of goods. The problem with healthcare is that it is not elastic. If I have cancer, a broken leg or some other ailment I have to get it fixed - regardless of the cost.
How very true. You failed to list another aspect though: competition.
Given the sheer size of the insurance companies, costs can be kept low through competition.
Given that same size of the insurance companies though, consumers cannot count on competition to lower their costs. And that is the reason why your end conclusion is correct: there is no free market because there are no elastic prices, nor is there enough competition.
This is why my personal preference is to have similar products have similar rules attached to them. There already are rules that specify criteria that new drugs, food, pesticides, etc. have to adhere to.
I think it would be a relativily easy task to extend their reach to all creations that have the potential to destroy us or our habitat. While I cannot be certain of course, I think most people could agree to such a change.
Any form of genetic engineering should be banned until more is known about it's effects and the ethics of it can be worked out.
How can we learn more about its effects if it is banned? We can't. At the very least restrict your ban to comercial purposes.
Besides, we've been doing this stuff for centuries (cross-breeding anyone?). Only we used to just introduce many new variaties all the time (as part of the development process). Now, we have reduced that to just a few. The end result of this technology is less danger to our environment.
The only thing that is really different/worrysome is the ever increasing attitude among (mostly American IMHO) businesses to do anything for profit. Even failing to prevent or causing disaster to our environment. The stance of the USA with the Kyoto treaty only encourages this behaviour.
But it is this attitude - not genetic engeneering - that is dangerous. Because it is this attitude that causes people to decide to release dangerous variants into the wild.
The real path towards a solution is therefore not a ban, but education and punishment of wrongdoers. Just as we do with baseball bats, kitchen knives, etc.: we teach our children that murder is bad, and punish those that use a baseball bat for murder.
and, as usual, there's no follow-through as to what it actually would be like to live in a world in which "i'm alright jack, screw you" was the dominant social theorem.
Where did you get the idea that that is the dominant social theorem for libertarians? As far as I learned their views, their attitude is more accurately characterized as "if you don't put your actions where your mouth is, stop whining". This does not mean abandoning other people to life, but merely not interfering with their life as they choose to live it. The lives of people who don't take responsibility for their own life are not worth considering. After all, they don't do so themselves.
the fact is, spammers are thieves, stealing services from bandwidth providers.
Unfortunately, this is not true. After all, the bandwith providers merely provide bandwith. Spammers use that bandwidth. They also do not steal the time and money we invest in combating spam. There is no theft here.
Spammers do cause us to lose time, bandwidth and money. Just as some 'activists' harass people wearing fur coats, causing them to lose time and money (as their fur coats need cleaning or are ruined by paint). To me it is only logical that spammers should be held liable for the damage they do, just as those activists should be held liable for the damage they do.
i think a bounty law, [...]
That would be nice. Especially if some smart people (smarter than me anyway) find a way to make cracking down on spammers profitable. This by the way, is a libertarian way of tackling the problem: you take responsibility -- and thus act. Libertarians feel that you then deserve all results of your actions, such as less spam on the internet and even a profit.
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True, a EULA is not a contract. It cannot be. But a EULA can be (and usually is) seen as general terms of business.
Your point is moot, as a EULA is not a contract. It it seen as general terms of of business. For consumers, those are not negotiable. At the time of purchase you implicitly agree to them.
In short:
If you cannot agree to the license because you find it unreasonable, unfair or because it uses the letter e on a monday, your only option is not to buy.
Note: that my understanding of law is heavily biased towards European law, as I live in the Netherlands.
This is not the case: simply saying "yes" is an agreement, with full legal consequences, provided it can be proven in court. With software, proving that you clicked "I agree" is much simpler. After all: without altering the program (which is not allowed without a license), the program won't install before you explicitly agree to the license.
Simply put, a license is an agreement giving you the right to use the software. Note that this actually to any copyrighted material, so it also covers the images, music, movies, etc. in a game. Without a license, you can only use software if you buy it: at least in the Netherlands there is a limited set of things you may do with software you bought without a license. But there is an important exception here as well: general terms of business.
EULA's are generally valid, even though you explicitly agree to them after you buy/download the software. The reason: they are the same for every user, and are thus general terms of business. There are of course a few restrictions: general terms of business must be legibly available before the sale/download. So a shrink-wrap license (which is not available before the sale/download) is not legally binding.
Many jurisdictions prohibit changing the conditions of sale after the sale. This also includes changes to a license, or the general terms of business, unless they state explicitly that they may change (which us extremely common). And even then there are restrictions in consumer law. For example, in the Netherlands, the changes must be made known to the user beforehand (a change on the website is not enough), well in advance (at least a month) and you have the option to decline. In that case, the contract/license is nullified (so you cannot use the software anymore) at no cost whatsoever.
So in short, a EULA is generally always valid. Your jurisdiction may enforce certain constraints though. For example, in the Netherlands I may always make a backup copy, regardless what the license says. Nor is any license term valid if it limits my right to free speech, for example by publishing benchmarks.
If you don't want to be bound to the license, your only recourse is not to use the software.
NOTE: I live in the Netherlands (Europe), and I have no legal training. Depending on my understanding and where you are, I may completely misrepresent your situation.
Exactly: the ruling said that selling software second-hand is entirely legal. Of course, the software is still covered by copyright and it's license, so you're really selling the license.
By effectively upholding the first sale doctrine, this judge did the right thing.
"Now we'll just pay for most of the bandwidth instead of them."
Exactly. And I'm not paying the distribution costs for someone else's commercial enterprise.
On top of that, your ISP may even cut you off (do your ISP's general conditions say the connection is not to be used for commercial purposes?)
It also happens in the Netherlands with XS4All.
At some point a server at work was hacked. Since I connect to home using an SSH key, my home machine was compromised as well.
My ISP then sent me an email, and cut off all access except:
- email (it went via their spam filtering email server)
- HTTP (if gone through their proxy; otherwise only their website)
This is a solution that also works for grandma, because she has no clue how to clean their computer, doesn't know how to find someone to pay to do this right, and doesn't want to burden the children with what she percieves to be an unimportant plaything (after all, the postal services still work).
Why teach a user terminology when it's not needed? I've told my mother not to use jarhon, only the terms she knows. Instead, I've asked her to describe the what she sees compared to what she expected. MUCH more valuable, as it allows me to accurately diagnose any problem reliably and reasonably quickly. Kind of like me interacting with a garage mechanic: I can name or describe the components I come into contact with, and describe the problem. The mechanic can then find the actual problem quickly. It even works when you're dead wrong about a possible cause, like I was once when I had my bike repaired.
"I'm fairly certain that even if it is stolen, if you buy goods without knowledge that they are stolen (i.e., in good faith) you are considered a buyer in the ordinary course of business and you'll take free of any prior interests."
"There is no such legal concept as the "garage sale rule" with respect to stolen property."
WRONG: In the US, this rule doesn't exist. But in the Netherlands for example, there IS such a rule. There are some restrictions (most notably related to the price and the situation in which you bought it), and the person whom it was stolen from you can sue the thief for reimbursement.
"but at least I do a bit of fact checking before making a really outlandish claim."
You're probably in a jurisdiction where buying stolen goods in good faith is still a crime. But in some outlandish jurisdictions, this is perfectly fine.
"Also, they're both in the European Union, so the same directive that got TPB in Sweden can be re-used in the Netherlands."
Maybe not: in the Netherlands, there is an organization called "Stichting Thuiskopie" (foundation for home copying). They collect money from a wide range of data carriers, from the old cassette tapes to blank CD and DVD discs. This money is then distributed to the authorship right holders.
As a result, copying by private individuals is fully legal in the Netherlands (despite attempts by BREIN to have it otherwise). The only tricky part is this:
Can TPB successfully argue that not they, but their users make the copies?
If not, they'll be blocked and/or convicted here as well.
If so, they may still be required to block IP addresses not from the Netherlands (and we all know how effective that is).
It's not that they're treating us as criminals -- which in itself is reason enough not to buy music and listen to radio only.
What's worse, is that they're treating us like lawyers. Because that's what all this legalese does. Nevermind that no layperson can really understand it, or wants to.
All these EULA's do is destroy any remnant of respect consumers may have for the record companies.
> Can't the film makers just countersue to get the losses incurred by this lawsuit?
How will you coutersue if you're bankrupted before you can?
> Doesn't Activision have the right to recover their development costs and profit from the risk they took to produce the game?
NO. They have a right to TRY. They do not however, have any right to deny people their fair use rights, nor any other right they have.
On the other hand, this doesn't seem the case here (assuming the information from Activision is correct).
"Every single American living there hates the country with a passion and is counting the days until they can leave again."
That's ok: Many people in the Netherlands hate the US for booking foreigners like criminals at the border, the human rights situation (worse than China), the way politicians are openly bought and sold (with political power via campaign contributions) and most of all their hubris.
Then again, a humble person who is willing to learn our culture is likely to find this a pleasant country where nothing is hidden from you -- our national curse seems to be that we're too blunt.
Denise downloads the song--it's only at that moment that anything illegal was done, but it is Charlie, not Denise, who has broken the law.
Nope, they both have. Charlie and Denise have both infringed the reproduction and distribution rights of both the song writer and the recording artist. The RIAA has been choosing to sue only those who are making the tracks available (probably either because they think it's the cheapest way to get their message across, or because they haven't figured out a way to nail the downloaders without stirring up entrapment charges), but could go after both.You're probably only thinking of the United States (given it's about the RIAA). But we all know who paid for the law there -- and why copyrights were extended retroactively (illegal in most countries) when the copyright on Mickey mouse was about to expire...
In other countries, downloading copyrighted material isn't necessarily illegal. Here in the Netherlands for example, downloading is perfectly legal. We even pay for it: there are levies on blank media, paid to the copyright holders via "Stichting de Thuiskopie". So for me, only Charlie has broken the (Dutch) law. Denise paid for her download via the levies on blank media.
On the contrary: it is to ensure that laws against pedophilic materials remain enforcable (both to stop it's creation and to stomp out the demand for it).
With advancing technology, we'll find that in the not too distant future (i.e. within a few years) it's possible that humans cannot distinguish between computer generated images and real photographs/video's. At that point, the claim that the photographs/videos are computer generated will be enough for a reasonable doubt -- especially if the defendant can show a website that (even falsely) claims that the material available is computer generated.
The only problem I see is that a law like this is easily written badly, and also banning computer generated material that is obviously fake. That would be a slippery slope.
"[...] the statements [...] , while reflecting the immaturity of the speaker, constitute protected opinion under the First Amendment."
That is a very nice way of protecting free speech, while still making very plain that that kid should work on his argumentative skills.
If I (as a normal user for a change) see a popup like the one described, then even if I click "Yes" I'm not authorizing anyone to install anything on my computer. I'll be assuming something like an HTTPS cpnnection like my bank uses.
If the install of such a root-kit (or any other software) happens anyway, this is a case of unauthorized tresspass / cracking. At least where I live, there is a law against it (NL - it's called "Computervredebreuk"). In fact, because you appropriate data processing capacity (the keyboard), you qualify for the higher punishment.
How very true. You failed to list another aspect though: competition.
Given the sheer size of the insurance companies, costs can be kept low through competition.
Given that same size of the insurance companies though, consumers cannot count on competition to lower their costs. And that is the reason why your end conclusion is correct: there is no free market because there are no elastic prices, nor is there enough competition.
This is why my personal preference is to have similar products have similar rules attached to them. There already are rules that specify criteria that new drugs, food, pesticides, etc. have to adhere to.
I think it would be a relativily easy task to extend their reach to all creations that have the potential to destroy us or our habitat. While I cannot be certain of course, I think most people could agree to such a change.
How can we learn more about its effects if it is banned? We can't. At the very least restrict your ban to comercial purposes.
Besides, we've been doing this stuff for centuries (cross-breeding anyone?). Only we used to just introduce many new variaties all the time (as part of the development process). Now, we have reduced that to just a few. The end result of this technology is less danger to our environment.
The only thing that is really different/worrysome is the ever increasing attitude among (mostly American IMHO) businesses to do anything for profit. Even failing to prevent or causing disaster to our environment. The stance of the USA with the Kyoto treaty only encourages this behaviour.
But it is this attitude - not genetic engeneering - that is dangerous. Because it is this attitude that causes people to decide to release dangerous variants into the wild.
The real path towards a solution is therefore not a ban, but education and punishment of wrongdoers. Just as we do with baseball bats, kitchen knives, etc.: we teach our children that murder is bad, and punish those that use a baseball bat for murder.
Where did you get the idea that that is the dominant social theorem for libertarians? As far as I learned their views, their attitude is more accurately characterized as "if you don't put your actions where your mouth is, stop whining". This does not mean abandoning other people to life, but merely not interfering with their life as they choose to live it. The lives of people who don't take responsibility for their own life are not worth considering. After all, they don't do so themselves.
Unfortunately, this is not true. After all, the bandwith providers merely provide bandwith. Spammers use that bandwidth. They also do not steal the time and money we invest in combating spam. There is no theft here.
Spammers do cause us to lose time, bandwidth and money. Just as some 'activists' harass people wearing fur coats, causing them to lose time and money (as their fur coats need cleaning or are ruined by paint). To me it is only logical that spammers should be held liable for the damage they do, just as those activists should be held liable for the damage they do.
That would be nice. Especially if some smart people (smarter than me anyway) find a way to make cracking down on spammers profitable. This by the way, is a libertarian way of tackling the problem: you take responsibility -- and thus act. Libertarians feel that you then deserve all results of your actions, such as less spam on the internet and even a profit.