Disclaimers (necessary I'm afraid): Firstly IANAL, only a student; secondly I've never studied IP law and my general contract law is a tad rusty; thirdly I'm English, so can only comment on English law (although I imagine US law will be pretty similar in this). Thus if any/all of this is wrong, apologies and please correct me.
Two things; I'll start with the minor one.
What happens, I wonder, in the case of pre-packaged software (e.g. MS Windows, etc) on a new computer (or perhaps better, a second-hand computer)? You're not always (or ever?) required to sign (/click) anything agreeing to the EULA, so can you be bound to it? My second point might actually answer that one for me, but I'm too tired to care.
I am not a fan of being able to sign/give away legal rights, and I agree completely with those who have said that EULAs should not exist at all - the whole thing should be governed by (a perhaps slightly modified form of) copyright law, which is IMHO more than protective enough for owners of intellectual property, without anything extra needed.
However, I think that when a case comes along (as it must eventually) where a software company is seeking to end the debate and establish beyond doubt that EULAs are binding, they will not have much trouble doing so (or at least software companies will have little problem changing their practices so as to ensure that the EULA *is* binding). I don't know how the 'sale' of software by the software company to the retail stores works, but I imagine it's a licence rather than a sale, just like the position between the software company and the end-user.
If this is true (and I suppose it must be, as all EULAs state that ownership remains firmly with the software company), then the retail stores 'selling' software have only a licence to it themselves. The maxim 'nemo dat quod non habet' is the unnecessarily pretentious legal way of saying the blindingly obvious: no one can give (or sell) what they don't have. If the retail stores don't have legal title to the software they sell, then they can't *pass* legal title to the end-user. Thus the end-user must have only a licence, and cannot legally gain anything more.
Now all that software companies like Blizzard have to do (and it may be that they do this already, but that isn't my area), is to make the licence under which they sell the software to the retailers subject to the EULA. Thus if the retailers only have a licence to the software which is governed by the EULA, then this is all they can pass on, and it doesn't matter whether the end-user has the opportunity to read the EULA or not - if a licence subject to the EULA is all the retailers have, then this is all that end-users can acquire.
This of course raises questions about the vailidity of all contracts to purchase software licences, because in practice end-users very rarely get the opportunity to read the EULA, and obviously a contract which holds one of the parties to terms which they did not have the opportunity to read is highly suspect and likely to be struck down completely. - But that's another issue.
So my point, after all that rambling, is simple: even if software companies should be told by the courts that EULAs are *not* binding (or that restrictions will be put in place as to what provisions they can contain), it would be only a few minutes' work for them to change their contracts with retailers so that they would regain validity in a way that no one could challenge - and obviously if it came to it this is exactly what they would do. Hence wrangling over the legal validity of EULAs under present law is kind of pointless, because no matter what the courts decide, software companies will be able to keep on doing whatever they like anyway, with a minimum of fuss.
So it all goes back to choice: if you are prepared to accept all of the terms of the EULA, then buy the software. If you're not...don't.
IANAL (yet)...but I don't think this is going to work. If you commission someone else to act on your behalf like this (whether or not a minor), then you will be the principal and the action is legally yours.
Small point, but incidentally Blizzard do this: if your CD/manual/cd-key is lost or destroyed, you can pay an arbitrary fee (presumably supposed to cover shipping and handling costs, but I daresay they make a tidy profit too) and they will replace it, provided you send something as proof of purchase. There are details about it on blizzard's website.
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Disclaimers (necessary I'm afraid): Firstly IANAL, only a student; secondly I've never studied IP law and my general contract law is a tad rusty; thirdly I'm English, so can only comment on English law (although I imagine US law will be pretty similar in this). Thus if any/all of this is wrong, apologies and please correct me.
Two things; I'll start with the minor one.
What happens, I wonder, in the case of pre-packaged software (e.g. MS Windows, etc) on a new computer (or perhaps better, a second-hand computer)? You're not always (or ever?) required to sign (/click) anything agreeing to the EULA, so can you be bound to it? My second point might actually answer that one for me, but I'm too tired to care.
I am not a fan of being able to sign/give away legal rights, and I agree completely with those who have said that EULAs should not exist at all - the whole thing should be governed by (a perhaps slightly modified form of) copyright law, which is IMHO more than protective enough for owners of intellectual property, without anything extra needed.
However, I think that when a case comes along (as it must eventually) where a software company is seeking to end the debate and establish beyond doubt that EULAs are binding, they will not have much trouble doing so (or at least software companies will have little problem changing their practices so as to ensure that the EULA *is* binding). I don't know how the 'sale' of software by the software company to the retail stores works, but I imagine it's a licence rather than a sale, just like the position between the software company and the end-user.
If this is true (and I suppose it must be, as all EULAs state that ownership remains firmly with the software company), then the retail stores 'selling' software have only a licence to it themselves. The maxim 'nemo dat quod non habet' is the unnecessarily pretentious legal way of saying the blindingly obvious: no one can give (or sell) what they don't have. If the retail stores don't have legal title to the software they sell, then they can't *pass* legal title to the end-user. Thus the end-user must have only a licence, and cannot legally gain anything more.
Now all that software companies like Blizzard have to do (and it may be that they do this already, but that isn't my area), is to make the licence under which they sell the software to the retailers subject to the EULA. Thus if the retailers only have a licence to the software which is governed by the EULA, then this is all they can pass on, and it doesn't matter whether the end-user has the opportunity to read the EULA or not - if a licence subject to the EULA is all the retailers have, then this is all that end-users can acquire.
This of course raises questions about the vailidity of all contracts to purchase software licences, because in practice end-users very rarely get the opportunity to read the EULA, and obviously a contract which holds one of the parties to terms which they did not have the opportunity to read is highly suspect and likely to be struck down completely. - But that's another issue.
So my point, after all that rambling, is simple: even if software companies should be told by the courts that EULAs are *not* binding (or that restrictions will be put in place as to what provisions they can contain), it would be only a few minutes' work for them to change their contracts with retailers so that they would regain validity in a way that no one could challenge - and obviously if it came to it this is exactly what they would do. Hence wrangling over the legal validity of EULAs under present law is kind of pointless, because no matter what the courts decide, software companies will be able to keep on doing whatever they like anyway, with a minimum of fuss.
So it all goes back to choice: if you are prepared to accept all of the terms of the EULA, then buy the software. If you're not...don't.
IANAL (yet)...but I don't think this is going to work. If you commission someone else to act on your behalf like this (whether or not a minor), then you will be the principal and the action is legally yours.
Small point, but incidentally Blizzard do this: if your CD/manual/cd-key is lost or destroyed, you can pay an arbitrary fee (presumably supposed to cover shipping and handling costs, but I daresay they make a tidy profit too) and they will replace it, provided you send something as proof of purchase. There are details about it on blizzard's website.