From a comment on this story by NewYorkCountryLawyer:
The discovery issue... is that it's never proper to bring a lawsuit in federal court for the purpose of obtaining discovery. The "John Doe" cases are definitely brought for that purpose, because they are immediately dropped after the RIAA gets the information it was looking for. I.e., it is a pre-action discovery proceeding [which is not authorized under the Federal Rules] masquerading as a copyright infringement proceeding. (Emphasis supplied.) That's what I was referring to, as indicated by what I wrote as the antecedent to the "that" you quoted me on.
"Circumstantial" does not mean any of the following, about evidence: (1) inadmissible; (2) insufficient to prove a fact in court; or (3) unreliable. You can be convicted of murder based on nothing but circumstantial evidence, if it is strong enough. Otherwise, murderers who hide their victims' bodies the best could not be convicted. And the RIAA only has to prove infringement by a preponderance of the evidence, a much lower standard of proof than beyond a reasonable doubt as required for a criminal conviction.
This is about the RIAA's abuse of the discovery process and, in particular, its filing lawsuits for the sole purpose of collecting evidence through discovery. You personally can't just send me interrogatories without having a pending lawsuit against me, and you also can't file a lawsuit whose only purpose is to allow you to send me interrogatories. And that's what the RIAA is apparently doing, rampantly.
Come on people, save these announcements for days that I can trust the internet... But you can always trust NewYorkCountyLawyer! Him and Judge Fudge. You heard it here, first, everyone! You can always trust a lawyer!... just so long as it's the right lawyer.;)
It's only misogynist in some applications. Most often, it is at worst superficial. Sometimes, it is completely neutral. I wish that people would do a better job of compartmentalizing these things so as to not blur their meanings.
I only brought UCITA up because it is an answer, which proves that there can be answers. Sometimes even the wrong answer is better than no answer at all. I understand your desire that companies engage in such huge transaction costs to make their EULAs enforceable, but that's just a countervailing interest to that of the companies themselves, which is the interest I pointed out. What would be best is a fair compromise, but I'm not all that convinced that there is such a thing - fully enforceable EULAs screw consumers and no EULAs or very expensive EULAs in terms of transaction costs will reduce the amount of software that gets made and sold, also screwing consumers in the end. Is there any middle ground? I think that the underlying reason for the way it works now is that nobody has come up with a better idea.
A lot of your arguments are invalid. For instance, acceptance of the goods does not happen instantaneously when you sign the credit card receipt and walk out of the store. Acceptance in the case of retail software occurs once you have the software installed and running. Any sooner than that, and you would be entirely unable to reject defective software.
However, your argument about ProCD entirely ignoring the privity issue is valid, and is to me the most solid argument against EULA enforceability. (And, because the purchase of the software lacks privity between you and the software company and you already have the right to install the software because that's necessary in order to use it at all, you are right that there is no consideration for an agreement between you and the software company regarding your promise to abide by the EULA.) And it's not about adding terms after you get the goods - that's perfectly fine under the UCC. It's also not about the UCC not applying. It's not even really about the box saying "there are additional license terms inside this box that apply to your use of the software it contains," since that should have no more legal effect between you and Microsoft than "batteries included" has.
It really is about the fact that there has not been any transaction between you and Microsoft at all. And that's why the UCITA came into being, but UCITA apparently sucks so of course almost nobody adopted it. Software companies rightfully want some way for an EULA to cover their products, without the transaction costs of negotiating every software sale directly with the actual consumers and making sure that the consumer signs off on the EULA before paying for the software.
EULAs are, in the end, evidence that software companies are in a Catch-22, not that users are. Software is a different kind of thing from music, books, and the like, in that you almost universally have to make a copy of it to use it. That we don't have specific laws declaring what terms an EULA can and cannot dictate is a shame, because it would save a lot of the energy that goes into this debate. But then again, a lot of lawyers would get downsized since they wouldn't have to draft EULAs anymore, and the only thing worse than a lawyer is an unemployed lawyer with a lot of time on his hands.;)
It's an interesting problem that hundreds of different sets of laws can apply to otherwise identical transactions. I do not at all envy the people at Microsoft's legal department who have to try to untangle the mess of laws and secure as much protection as they can for their employer.
What authority do you rest on for your assertion that the sale is finished and no more contract terms can come into being once money and goods have exchanged hands? UCC 2-202 says that additional terms you agree on (such as by clicking "I Agree") are part of the contract.
The argument that there is no privity of contract is a good one. I don't know that it's been tested in court, probably because the companies that make you agree to EULAs don't want to risk them losing what little effect they do have. Then again, lack of privity is not always enough, under the UCC or otherwise, to avoid a contract action. It isn't even obvious that there is no privity in these situations. I won't go into it in detail because it is, frankly, too wordy of a thing to do and I have a job I'm supposed to be doing right now. The main point is that it's a more complicated area of the law than people tend to assume, and I think that this entire thread has demonstrated that sufficiently.
That said, it's not at all clear that the goods being delivered makes it too late for additional terms to be agreed to. Section 2-207 isn't the only one in play. For instance, the opinion in ProCD v. Zeidenberg plainly says that 2-207 is irrelevant. The court in that case also mentions insurance contracts - would you argue that your insurance policy's terms have no effect because you paid for the coverage before you received a full copy of the policy? If you buy a new home stereo, is it covered by an express warranty even though the only expression of the warranty is in the instruction manual that came inside the box?
There's no coercion. There is nobody holding a gun to your head and forcing you to use the software. Our court cases, like ProCD, don't just come out of thin air. The Uniform Commercial Code, Article 2, governs the sales of goods and is purposely designed to make transactions in the sale of goods go smoothly for all parties. If it were necessary to negotiate all the terms of every contract before you bought the product, it would be next to impossible to do business. As others have pointed out, you don't negotiate the terms of the contract when you buy a package of gum in a store. The only thing that makes EULAs special is that some of the terms of the agreement are agreed upon by the parties after money and the product have changed hands.
What most people seem to miss is that the transaction does not terminate once money and the product change hands and that you don't have to accept the EULA any more than you have to accept the warranty of merchantability that comes with every package of gum. The solution is simply not to buy the gum or not to accept the EULA.
Maybe you want to explain how you are coerced to click "I Accept." The way I see it, this is just like any other rational decision: Is the value to me of accepting these additional terms and getting to use this software greater than the value to me of not being bound by these terms?
Installing a program on your computer from CD is making a copy of it. The fact that that's intended when you purchase it doesn't change the fact that you're copying it. That's one of the most common copyright law grounds given in support of EULAs being enforceable - absent an agreement to them, you don't have any right to install the software. (Granted, the copyright law argument is a weak one. Contract law arguments are much stronger.)
Your German laws are more friendly in some ways, and that's not unexpected. Our laws are more of a compromise between the desires of big business and John Q. Public. In our case, EULAs that are not inherently unfair tend to be enforced, in part because it gives an economic incentive to software companies to continue making software. That's why EULA terms such as arbitration clauses are the most commonly enforced and terms relating to giving up your firstborn son are not.
Note that I am not arguing for enforceability of EULAs. I'm just making sure that everyone here understands that they are not as obviously unenforceable as common sense would dictate. There are many complex issues surrounding those darn click-through license agreements.
So let's go to the UCC, Article 2, which has been adopted by all the states. Sections 2-202 and 2-207 permit additional terms to be added to a contract if you take any action that evidences an agreement to the new terms. Your decision to click "I agree" when installing software is such an action. In what way is this logic flawed? (Please take a moment to read those two sections of the UCC first, as I am not about to write them out in full here. They're short, but I'm keeping my comments to discussion and not to quoting statutes.)
Is 17 USC 117(a)(1) the only law at all that could possibly apply? It seems to me that there are entire shelves of state laws, many of which govern contracts and some of which are even dedicated to contracts for the sale of goods or, in some cases, computer software specifically (see UCITA section 112). This is a much more complicated area of the law than any one subsection of a copyright statute will explain.
You may want to see what the law, which I know is less authoritative in your life than Wikipedia, actually says. See, for instance, UCC 2-202 and 2-207, and ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996).
Another question I have is whether you think that the GPL has any enforceability whatsoever. If so, can you distinguish it from Microsoft-style EULAs?
What basis do you have for believing that you are correct? Please give a source other than yourself for each assertion you make that you feel supports your belief.
I was referring to your contact lens as your third eye, as I was under the impression from your journal post that you intended to get your other eye surgically enhanced, as well, in the future. Hence replacing your third eye, or at least obviating it.:)
I finally, after seeing your sig line around fairly often, got around to clicking on it. I am a long-time myopia sufferer, to the extent that I'm not convinced I'd recognize family members at the dinner table if I didn't wear my contacts or horribly out-of-style glasses. Your story is inspiring - good luck getting your third eye replaced.:)
Technically, those contracts aren't even implied, they are explicit. The terms beyond the price and quantity of the gum will be supplied by applicable law. In states within the U.S. that have adopted it, the Uniform Commercial Code, Article 2, will apply. Under UCC 2-201, the contract doesn't have to be in writing because it is for less than a certain amount (depending on the version of the UCC that the state has adopted; generally $500). Under 2-509, because you bought the gum from a gum merchant, the risk of the gum being lost to and act of God is the seller's risk until you take possession of the gum. Under 2-314, there is a warranty, among other things, that the gum is fit for the ordinary purposes of gum.
An implied contract is one where the parties' behavior shows that there is a contract even though there is not an explicit agreement between them. When you buy gum, there is an explicit agreement when you communicate by putting the gum on the counter that you are offering to buy it for the stated price and the store communicates its acceptance by telling you "with tax, that will be 53 cents, sir." And implied contract would be if you picked up the gum, left 53 cents on the counter, and walked out of the store without any communication in either direction, and the store never bothered to chase you down over it.
Subtle, but it's a pet peeve of mine. Don't worry - most judges don't know where explicit contracts end and implied contracts begin.
I invite you to name any such jurisdiction and point to the source of the law that requires a written signature for any contract to be binding. It's impossible for me to prove a negative, and you stand in the fortunate position of being able to prove me wrong by pointing out a single counterexample.:)
The question is this: What do you want to do that, if you had agreed to the EULA, would be a violation of it? Do you have any right to take that action absent an agreement between yourself and Microsoft? If so, what gives you that right?
I should point out that, while shrink-wrap licenses have been upheld by some US courts, it doesn't follow that every such agreement is enforceable or that every term of the enforceable instances will be enforced. Contract law is a massive, complicated thing.
Slashdot Mirror
Why not have 6 mono outputs? If this is for ambient music, that would work just fine and double the number of rooms per sound card.
"Circumstantial" does not mean any of the following, about evidence: (1) inadmissible; (2) insufficient to prove a fact in court; or (3) unreliable. You can be convicted of murder based on nothing but circumstantial evidence, if it is strong enough. Otherwise, murderers who hide their victims' bodies the best could not be convicted. And the RIAA only has to prove infringement by a preponderance of the evidence, a much lower standard of proof than beyond a reasonable doubt as required for a criminal conviction.
This is about the RIAA's abuse of the discovery process and, in particular, its filing lawsuits for the sole purpose of collecting evidence through discovery. You personally can't just send me interrogatories without having a pending lawsuit against me, and you also can't file a lawsuit whose only purpose is to allow you to send me interrogatories. And that's what the RIAA is apparently doing, rampantly.
Yeah, I just read the scripts.
It's only misogynist in some applications. Most often, it is at worst superficial. Sometimes, it is completely neutral. I wish that people would do a better job of compartmentalizing these things so as to not blur their meanings.
I think you spelled some of that wrong.
.oO ( I am Jack's desperate hope that more people get the joke than miss it. )
I only brought UCITA up because it is an answer, which proves that there can be answers. Sometimes even the wrong answer is better than no answer at all. I understand your desire that companies engage in such huge transaction costs to make their EULAs enforceable, but that's just a countervailing interest to that of the companies themselves, which is the interest I pointed out. What would be best is a fair compromise, but I'm not all that convinced that there is such a thing - fully enforceable EULAs screw consumers and no EULAs or very expensive EULAs in terms of transaction costs will reduce the amount of software that gets made and sold, also screwing consumers in the end. Is there any middle ground? I think that the underlying reason for the way it works now is that nobody has come up with a better idea.
A lot of your arguments are invalid. For instance, acceptance of the goods does not happen instantaneously when you sign the credit card receipt and walk out of the store. Acceptance in the case of retail software occurs once you have the software installed and running. Any sooner than that, and you would be entirely unable to reject defective software.
;)
However, your argument about ProCD entirely ignoring the privity issue is valid, and is to me the most solid argument against EULA enforceability. (And, because the purchase of the software lacks privity between you and the software company and you already have the right to install the software because that's necessary in order to use it at all, you are right that there is no consideration for an agreement between you and the software company regarding your promise to abide by the EULA.) And it's not about adding terms after you get the goods - that's perfectly fine under the UCC. It's also not about the UCC not applying. It's not even really about the box saying "there are additional license terms inside this box that apply to your use of the software it contains," since that should have no more legal effect between you and Microsoft than "batteries included" has.
It really is about the fact that there has not been any transaction between you and Microsoft at all. And that's why the UCITA came into being, but UCITA apparently sucks so of course almost nobody adopted it. Software companies rightfully want some way for an EULA to cover their products, without the transaction costs of negotiating every software sale directly with the actual consumers and making sure that the consumer signs off on the EULA before paying for the software.
EULAs are, in the end, evidence that software companies are in a Catch-22, not that users are. Software is a different kind of thing from music, books, and the like, in that you almost universally have to make a copy of it to use it. That we don't have specific laws declaring what terms an EULA can and cannot dictate is a shame, because it would save a lot of the energy that goes into this debate. But then again, a lot of lawyers would get downsized since they wouldn't have to draft EULAs anymore, and the only thing worse than a lawyer is an unemployed lawyer with a lot of time on his hands.
It's an interesting problem that hundreds of different sets of laws can apply to otherwise identical transactions. I do not at all envy the people at Microsoft's legal department who have to try to untangle the mess of laws and secure as much protection as they can for their employer.
What authority do you rest on for your assertion that the sale is finished and no more contract terms can come into being once money and goods have exchanged hands? UCC 2-202 says that additional terms you agree on (such as by clicking "I Agree") are part of the contract.
The argument that there is no privity of contract is a good one. I don't know that it's been tested in court, probably because the companies that make you agree to EULAs don't want to risk them losing what little effect they do have. Then again, lack of privity is not always enough, under the UCC or otherwise, to avoid a contract action. It isn't even obvious that there is no privity in these situations. I won't go into it in detail because it is, frankly, too wordy of a thing to do and I have a job I'm supposed to be doing right now. The main point is that it's a more complicated area of the law than people tend to assume, and I think that this entire thread has demonstrated that sufficiently.
That said, it's not at all clear that the goods being delivered makes it too late for additional terms to be agreed to. Section 2-207 isn't the only one in play. For instance, the opinion in ProCD v. Zeidenberg plainly says that 2-207 is irrelevant. The court in that case also mentions insurance contracts - would you argue that your insurance policy's terms have no effect because you paid for the coverage before you received a full copy of the policy? If you buy a new home stereo, is it covered by an express warranty even though the only expression of the warranty is in the instruction manual that came inside the box?
So, this game Space Marines? Part of the lame farm. But I have an awesome new video game that I have invented, and I call it ... Cobras vs. Chimps!
There's no coercion. There is nobody holding a gun to your head and forcing you to use the software. Our court cases, like ProCD, don't just come out of thin air. The Uniform Commercial Code, Article 2, governs the sales of goods and is purposely designed to make transactions in the sale of goods go smoothly for all parties. If it were necessary to negotiate all the terms of every contract before you bought the product, it would be next to impossible to do business. As others have pointed out, you don't negotiate the terms of the contract when you buy a package of gum in a store. The only thing that makes EULAs special is that some of the terms of the agreement are agreed upon by the parties after money and the product have changed hands.
What most people seem to miss is that the transaction does not terminate once money and the product change hands and that you don't have to accept the EULA any more than you have to accept the warranty of merchantability that comes with every package of gum. The solution is simply not to buy the gum or not to accept the EULA.
Maybe you want to explain how you are coerced to click "I Accept." The way I see it, this is just like any other rational decision: Is the value to me of accepting these additional terms and getting to use this software greater than the value to me of not being bound by these terms?
Installing a program on your computer from CD is making a copy of it. The fact that that's intended when you purchase it doesn't change the fact that you're copying it. That's one of the most common copyright law grounds given in support of EULAs being enforceable - absent an agreement to them, you don't have any right to install the software. (Granted, the copyright law argument is a weak one. Contract law arguments are much stronger.)
Your German laws are more friendly in some ways, and that's not unexpected. Our laws are more of a compromise between the desires of big business and John Q. Public. In our case, EULAs that are not inherently unfair tend to be enforced, in part because it gives an economic incentive to software companies to continue making software. That's why EULA terms such as arbitration clauses are the most commonly enforced and terms relating to giving up your firstborn son are not.
Note that I am not arguing for enforceability of EULAs. I'm just making sure that everyone here understands that they are not as obviously unenforceable as common sense would dictate. There are many complex issues surrounding those darn click-through license agreements.
So let's go to the UCC, Article 2, which has been adopted by all the states. Sections 2-202 and 2-207 permit additional terms to be added to a contract if you take any action that evidences an agreement to the new terms. Your decision to click "I agree" when installing software is such an action. In what way is this logic flawed? (Please take a moment to read those two sections of the UCC first, as I am not about to write them out in full here. They're short, but I'm keeping my comments to discussion and not to quoting statutes.)
Is 17 USC 117(a)(1) the only law at all that could possibly apply? It seems to me that there are entire shelves of state laws, many of which govern contracts and some of which are even dedicated to contracts for the sale of goods or, in some cases, computer software specifically (see UCITA section 112). This is a much more complicated area of the law than any one subsection of a copyright statute will explain.
You may want to see what the law, which I know is less authoritative in your life than Wikipedia, actually says. See, for instance, UCC 2-202 and 2-207, and ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996).
Another question I have is whether you think that the GPL has any enforceability whatsoever. If so, can you distinguish it from Microsoft-style EULAs?
What basis do you have for believing that you are correct? Please give a source other than yourself for each assertion you make that you feel supports your belief.
You paid for a cardboard box with some papers and a CD inside of it. What about that fact entitles you to use the software that is stored on that CD?
I was referring to your contact lens as your third eye, as I was under the impression from your journal post that you intended to get your other eye surgically enhanced, as well, in the future. Hence replacing your third eye, or at least obviating it. :)
I finally, after seeing your sig line around fairly often, got around to clicking on it. I am a long-time myopia sufferer, to the extent that I'm not convinced I'd recognize family members at the dinner table if I didn't wear my contacts or horribly out-of-style glasses. Your story is inspiring - good luck getting your third eye replaced. :)
Technically, those contracts aren't even implied, they are explicit. The terms beyond the price and quantity of the gum will be supplied by applicable law. In states within the U.S. that have adopted it, the Uniform Commercial Code, Article 2, will apply. Under UCC 2-201, the contract doesn't have to be in writing because it is for less than a certain amount (depending on the version of the UCC that the state has adopted; generally $500). Under 2-509, because you bought the gum from a gum merchant, the risk of the gum being lost to and act of God is the seller's risk until you take possession of the gum. Under 2-314, there is a warranty, among other things, that the gum is fit for the ordinary purposes of gum.
An implied contract is one where the parties' behavior shows that there is a contract even though there is not an explicit agreement between them. When you buy gum, there is an explicit agreement when you communicate by putting the gum on the counter that you are offering to buy it for the stated price and the store communicates its acceptance by telling you "with tax, that will be 53 cents, sir." And implied contract would be if you picked up the gum, left 53 cents on the counter, and walked out of the store without any communication in either direction, and the store never bothered to chase you down over it.
Subtle, but it's a pet peeve of mine. Don't worry - most judges don't know where explicit contracts end and implied contracts begin.
I invite you to name any such jurisdiction and point to the source of the law that requires a written signature for any contract to be binding. It's impossible for me to prove a negative, and you stand in the fortunate position of being able to prove me wrong by pointing out a single counterexample. :)
The question is this: What do you want to do that, if you had agreed to the EULA, would be a violation of it? Do you have any right to take that action absent an agreement between yourself and Microsoft? If so, what gives you that right?
I should point out that, while shrink-wrap licenses have been upheld by some US courts, it doesn't follow that every such agreement is enforceable or that every term of the enforceable instances will be enforced. Contract law is a massive, complicated thing.