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Will the FTC Target EULAs Next?

Soulskill posted more than 5 years ago | from the by-reading-this-you-consent-to-being-my-slave dept.

Games 116

A few weeks ago, we discussed news that the Federal Trade Commission was planning to look into DRM and the way its characteristics are communicated to customers. Now, Joystiq's Law of the Game column speculates that EULAs could be on the FTC's list to review as well. "I would be willing to guess that within the next few years, the often maligned End User License Agreement ('EULA') may fall into the realm of being regulated as further 'consumer protection.' Is it necessary? ... The first and most common method [of consumer protection] is what is known as a 'plain language requirement.' The idea is that contracts written by lawyers are full of legal terms and are written in such a way that it takes a lawyer to decipher the actual meaning of all of the clauses. ... on the complete opposite end of the spectrum, it could be required that companies abandon EULA contracts all together in favor of a collection of FTC approved bullet points. The development and legal communities would, I assume, vehemently oppose this idea, but it is possible. Basically, the FTC would come up with a list of things all EULAs include, then a list of optional provisions that the licensor (the game company) could include."

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116 comments

The opposite of what the EULA was invented for. (3, Insightful)

dotancohen (1015143) | more than 5 years ago | (#26691709)

I would be willing to guess that within the next few years, the often maligned End User License Agreement ('EULA') may fall into the realm of being regulated as further 'consumer protection.

It won't because it was never meant to be 'consumer protection' and that is quite a perversion of the EULA's real purpose [what-is-what.com]: 'corporate protection'.

Re:The opposite of what the EULA was invented for. (3, Insightful)

arogier (1250960) | more than 5 years ago | (#26691741)

What would mandates inclusions to an EULA do to the GPL or BSD licenses. If some sort of admission of some level of liability for defects in the product are mandate, would free software projects at least on the face have to be handled officially at least as private betas? I could see some big corporate money contributing to legislation on EULAs for "consumer protection."

Re:The opposite of what the EULA was invented for. (3, Insightful)

sumdumass (711423) | more than 5 years ago | (#26691947)

There is never a EULA on a virus or trojan. The government just wouldn't have the ability to enforce one nor would it have the ability to make you accept one. There would be no EULA on spyware cops install onto suspects computers, there would be no EULA requirements on software obtained outside the US even though the User is sitting inside the US. In other words, requiring a ELUA in every instance is impossible and would present an unnecessary burden on US software sales.

Now that being said, the situation is probably going to be a If you do X, you are bound by these rules. If there is no EULA in the first place, one probably will not be needed and straight copyright/Patent law will govern. The original EULAs were only statements that you didn't buy the copyrights to the software just the right to use your copy within the bounds of copyright law.

What has happened is that EULAs have included terms that can allow a software manufacture disable competitors programs, stop you from having your fair use rights like the right of first sale or in some cases, they even deny you the right to talk negatively about the programs or it's performance. There are lots more weird and somewhat evil things and I suspect they are attempting to reign this under control as well as stop companies from advertising this product does this the best and then claim it isn't able to do it in the license to escape damages when it screws up. Well, you know, the shit the article talked about.

I doubt it will have any real effect on GPL or BSD programs.

Re:The opposite of what the EULA was invented for. (1)

arogier (1250960) | more than 5 years ago | (#26692415)

Wasn't there a piece on Slashdot last year about a malware author including an EULA...

Re:The opposite of what the EULA was invented for. (2, Interesting)

Anonymous Coward | more than 5 years ago | (#26692555)

"What has happened is that EULAs have included terms that can allow a software manufacture disable competitors programs, stop you from having..."

No.

What has happened is that EULAs have included terms that attempt, by sheer audacious force of entitlement, to unilaterally excuse... a software manufacture ...

It's like a mugger declaring "I assert the right to stab you in the stomach unless you pay me" before setting about a victim with a knife, believing that grants some kind of legal protection.

How did we ever get into this situatio?

There is NO LEGAL BASIS FOR A EULA WHATSOEVER

  • It is not a contract
  • Both parties do not agree to it
  • There is no opportunity to sign ("by action X you agree to" is bullshit and every lawyer knows it doesn't replace informed consent)
  • There is no consideration (you already bought the goods)

EULAS are, always have been, and always will be bullshit. They are an attempt at unilateral imposition of arbitary hidden terms on a customer after the real contract has been concluded. Quasi-legal language and CAPITAL LETTERS or FTC blessing will not change that one jot.

Re:The opposite of what the EULA was invented for. (0)

sumdumass (711423) | more than 5 years ago | (#26698569)

Wow, way to inject rhetorical ideologist bullshit into a conversation about EULAs. You have convinced me to hate them all like they are evil or something.

It's like a mugger declaring "I assert the right to stab you in the stomach unless you pay me" before setting about a victim with a knife, believing that grants some kind of legal protection.

Grow up. For the most part, the EULAs only attempt to distinguish that you have the right of use and not the rights availible as the copyright or patent holder. They also attempt to avoid liability. Only a small percentage of them attemp to take rights they don't lawfully already have. The liability is also covered under warranty law which is perfectly fine to display after the sale.

There is NO LEGAL BASIS FOR A EULA WHATSOEVER

Yes, there is. The original concept of the EULA which is one that is still in use is to inform the user of what rights you retain because of law and what actual rights they have by law. It's that simple, the laws say you can take code or make copies and redistribute the program/code without permission from the copyright holder or patent holder and that your purchase of the software doesn't make you neither. That is a totally legal concept just as the purchase of a book doesn't make you either.

EULAS are, always have been, and always will be bullshit. They are an attempt at unilateral imposition of arbitary hidden terms on a customer after the real contract has been concluded. Quasi-legal language and CAPITAL LETTERS or FTC blessing will not change that one jot.

No they haven't. And no they aren't. Some might be but most of them aren't and never where. And yes, the FTC authorizing or establishing what is legal and not will make a difference just as big as the law saying go on green and stop on red. If a software EULA said that, you would still be bound by it regardless of what you think. IF a Software EULA says you can't murder, illegally assault your neighbor, or that you couldn't cheat on your taxes, you are still bound by that. That's the intent of the EULA, you specifically inform you of what rights the copyright owner is allowing you that the law doesn't allow them to retain. You can continue to insert rhetorical ideologist bullshit and never understand that but it will be you who is forever pissed off.

Re:The opposite of what the EULA was invented for. (0)

Anonymous Coward | more than 5 years ago | (#26699823)

When you've swallowed so much of your own lies that you dismiss any challenge to that neat little fantasy world as "ideology" you are finished.

Re:The opposite of what the EULA was invented for. (1)

the_rtb (1157609) | more than 5 years ago | (#26692673)

There is never a EULA on a virus or trojan.

Now there's an idea.

Re:The opposite of what the EULA was invented for. (1)

nobodylocalhost (1343981) | more than 5 years ago | (#26694309)

Well, the problem isn't so much that there are enforcement of EULA, but rather, a problem of EULA should include certain "software bundle" that is hidden in the long list of terms and conditions. Take for example, when you install some games you agree to install certain anti-cheating software. Now there isn't so much of a problem when the game is running this anti-cheating software will be active. However, many anti cheating software load themselves into memory and refuse to terminate when the game ends. Well, in that case, they are taking resources away from your other programs and most likely interfere with other software you use such as debuggers. At that point if you go after the game company, they would go "but you agreed to the EULA". Obviously, there is a need for some sort of regulation around, to make sure this kind of thing doesn't happen. Note I am using the anti cheating software as a light example. There are many extreme cases where accepting software install will expose your system to a myriad of adware, spambot, and spyware that operate in legal gray area.

Re:The opposite of what the EULA was invented for. (3, Informative)

iYk6 (1425255) | more than 5 years ago | (#26692053)

What would mandates inclusions to an EULA do to the GPL or BSD licenses[?]

Nothing. EULA means "end user license agreement." GPL and BSD are each "distribution licenses." By default, a person is allowed to do anything they want with things they purchase, and a EULA is designed to restrict that. By default, a person is never allowed to distribute someone else's copyrighted works (with some fair use exceptions), and a free distribution license is designed to be more permissible in that regard.

Re:The opposite of what the EULA was invented for. (1)

dotancohen (1015143) | more than 5 years ago | (#26692075)

Google "firefox eula ubuntu" and you will find the answers. In fact, you might find a link to /.!

Re:The opposite of what the EULA was invented for. (3, Interesting)

itsdapead (734413) | more than 5 years ago | (#26692201)

What would mandates inclusions to an EULA do to the GPL or BSD licenses.

Well, unless the law was a total ass it ought not to apply unless money or "other valuable considerations" change hands.

The wording from the UK trading standards law [tradingstandards.gov.uk] is "goods must meet the standards that any reasonable person would expect, taking into account the description, the price and all other relevant information"

OTOH if you're charging money for GPL/BSD software (other than optional donations) then why shouldn't you be subject to a proportionate level of liability for ensuring it does what it says on the tin?

...and, if a free software author was spectacularly negligent or dishonest then even the current disclaimers are not going to protect them.

Of course, the danger is that someone will let BigSoftCorp draft the law and that the "reasonable persons" will never have used a computer in their life.

Ob. Note: apart from the disclaimers (which ought to be redundant if there's no contract) the GPL and BSD licenses are not EULAs, anyway (and its a pity that certain projects present them as click-throughs).

Re:The opposite of what the EULA was invented for. (1)

91degrees (207121) | more than 5 years ago | (#26692345)

Sounds reasonable.

My satnav runs Linux (I think). If I have a problem with it I'm going to expect the manufacturers to fix it. Not Linus Torvalds.

Re:The opposite of what the EULA was invented for. (2, Interesting)

digitalunity (19107) | more than 5 years ago | (#26695521)

The GPL displayed as a click-through license is especially prevalent on open source Windows software. It is unfortunate that they force users to accept it to run the software, since they do not have to. This is a good opportunity to explain what a GPL is also and that their software is open source.

Re:The opposite of what the EULA was invented for. (1)

rfc1394 (155777) | more than 5 years ago | (#26697193)

I think the use of putting the GPL into open source Windows Software is because typically the installer programs are set up to have a "stop" for a license agreement, and rather than disable this stop on a standard install package, they just drop in the GPL. I don't think it has anything with requiring agreement to the GPL to use the software as much as not wanting to break a known-good install or not wanting to bother to rewrite the pre-built script from standard install packages, and rather than put nothing in the 'you must agree to this license' provision, they put the GPL in rather than some unimportant text. Most programmers are not lawyers and most don't care. The install script has a spot for a license; they have the GPL license, so they stick it in there because they presume that's what it's for.

Re:The opposite of what the EULA was invented for. (1)

Workaphobia (931620) | more than 5 years ago | (#26697321)

Interestingly enough the wrapper dialog displaying the GPL often directly conflicts with the text of the license in claiming the user need accept it to run or install the program.

Re:The opposite of what the EULA was invented for. (1)

digitalunity (19107) | more than 5 years ago | (#26700705)

Not much new there. EULA's often have numerous unenforceable provisions relating to intellectual property rights as well. I've seen several that even include provisions against reverse engineering even for compatibility reasons, which is a fair use requirement of copyright law.

That someone would improperly force a user to accept a license needlessly isn't much of a surprise.

Re:The opposite of what the EULA was invented for. (1)

KibibyteBrain (1455987) | more than 5 years ago | (#26692225)

I would be much more worried about some of the stipulations of the GPL v3 being called into question. Some of its restrictions that helped cure the "hacks" for the GPL v2 could also be used for pure evil in other essentially restrictive licenses. And since some of these do cover actual usage of the software, there might be issues.

Re:The opposite of what the EULA was invented for. (1)

arogier (1250960) | more than 5 years ago | (#26692671)

I'm waiting for Apple to try taking someone to court for using iTunes to in someway contribute to a nuclear, biological, or chemical weapon. Do the people running weapons simulations have "We'll meet again" playing while they do their thing?

Re:The opposite of what the EULA was invented for. (1, Informative)

LingNoi (1066278) | more than 5 years ago | (#26692653)

A EULA and GPL/BSD license is completely different.

A GPL or BSD license comes into effect the minute you download the binary or code.

A EULA can only come into effect when you click I agree. Most free software projects stick the GPL or BSD in the license section of an installer however don't make the mistake of thinking the GPL or BSD is a EULA type license. Even if you click "refuse" on the installer you're still bound by the GPL or BSD licenses.

Re:The opposite of what the EULA was invented for. (1)

jtev (133871) | more than 5 years ago | (#26693757)

Um.... No. Not at all. The GPL goes into effect when you UPLOAD the software. When you distribute it. It doesn't cover use at all. Please re-read the GPL. The consideration is the ability to modify and distribute the software. The cosideration you give up is that you distribute the source code as well, in the case of the GPL, or that you give credit where credit is due, in the case of the BSD licence. Neither licence controls use, because copyright does not control use, and by having legally attained the software you have the right to use it. Just like you have the right to read a book, even if you picked it up at the library.

Re:The opposite of what the EULA was invented for. (1)

LingNoi (1066278) | more than 5 years ago | (#26694541)

When I upload my GPL code to the net I am not bound by the GPL as the copyright holder (assuming I own all the work), however others that share my software are, that doesn't specially have to be uploading software.

When you distribute it. It doesn't cover use at all.

I never said the GPL covered use of the software.

Re:The opposite of what the EULA was invented for. (1)

cfulmer (3166) | more than 5 years ago | (#26694687)

That is a popular misnomer. Please read sections 11 & 12 of version 2 (the parts in ALL-CAPS). Those absolutely apply to USERS of GPL software, not just to people who distribute it.

Re:The opposite of what the EULA was invented for. (1)

Workaphobia (931620) | more than 5 years ago | (#26697383)

So you're saying that, like a EULA, the GPL does place legal restrictions on end users in the form of ALL CAPS WARRANTY WAIVERS (I never understood why in legalese it's considered polite to shout). But this clause only applies to those who exercise their right to redistribute the software, and not to ordinary non-redistributing end-users (see section 5)? How asymmetric.

Re:The opposite of what the EULA was invented for. (1)

Workaphobia (931620) | more than 5 years ago | (#26697399)

I think you're abusing the legal term "consideration". To my knowledge that's only applicable in contract law, not in licensing.

Re:The opposite of what the EULA was invented for. (1)

Chyeld (713439) | more than 5 years ago | (#26697709)

You are misreading the statement. The idea being offered is that in the spirit of "consumer protection" the FTC is gearing up to look at regulating EULA's.

Re:The opposite of what the EULA was invented for. (1)

Shadow of Eternity (795165) | more than 5 years ago | (#26691773)

Either way i'd still like to see an end to the "If someone breaks into your house you must delete all of this stuff within 24hrs" levels of BS we see in EULAs.

Re:The opposite of what the EULA was invented for. (1)

dotancohen (1015143) | more than 5 years ago | (#26691843)

Either way i'd still like to see an end to the "If someone breaks into your house you must delete all of this stuff within 24hrs" levels of BS we see in EULAs.

Have you told that to your local representative, assuming that you live in a representative democracy?

Re:The opposite of what the EULA was invented for. (0)

Anonymous Coward | more than 5 years ago | (#26692033)

My local representative doesn't understand anything at all about technology and I would rather leave it be than see him trying to come up with new laws regarding it, you insensitive clod!

Re:The opposite of what the EULA was invented for. (1)

Shadow of Eternity (795165) | more than 5 years ago | (#26693007)

Even if congress somehow actually improved the situation rather than just making it worse I doubt most companies would care given that many of them already make so much money they can literally afford to break the law.

Re:The opposite of what the EULA was invented for. (1)

Phoenixhawk (1188721) | more than 5 years ago | (#26694423)

Either way i'd still like to see an end to the "If someone breaks into your house you must delete all of this stuff within 24hrs" levels of BS we see in EULAs.

Have you told that to your local representative, assuming that you live in a representative democracy?

I would but it would do no good, considering that I live in the United States of America which is republic.

It *is* consumer protection (4, Funny)

jonaskoelker (922170) | more than 5 years ago | (#26691887)

it was never meant to be 'consumer protection'

Of course it was. It always ways. The EULA is there to protect the corporation from its consumers.

Protection explained (4, Funny)

AliasMarlowe (1042386) | more than 5 years ago | (#26693055)

The EULA is there to protect the corporation from its consumers.

Think of it as a corporate condom. It enables the corporation to screw its customers without worrying about the consequences.

Re:The opposite of what the EULA was invented for. (2, Insightful)

ItsColdOverHere (928704) | more than 5 years ago | (#26691903)

I may be misunterstanding the tone of the quote but it seems to me that the 'consumer protection' being discussed here is the actual regulation of EULAs.
  To put it more clearly: It seems to me that the FTC would regulate EULAs to protect consumers from being screwed over by software makers' overly complicated EULAs

Even that's too complicately put (5, Interesting)

Moraelin (679338) | more than 5 years ago | (#26692327)

Even that text you linked to is too complicately put and somewhat inexact.

The fact is:

1. Developers didn't _need_ any extra protections against unlawful redistribution, since a copyright law had existed in the UK since 1710 and in the USA since 1787. The Berne Convention was signed in 1886.

Why does software need special protections? A book or newspaper for example is pretty clearly protected by copyright: you may not unlawfully distribute copies. You don't need EULAs for books or newspapers, so why do we need them for software?

2. The EULA -- in its generic "software license" form -- is actually as old as the first software ever sold, and was based on a loophole in copyright law: it mentioned being copied generically, but computers needed to copy a program from punched cards (later tape, later disk) to memory to actually run it. So some wise guy figured out: ah-ha, to make a copy they need a license, so we can dictate our terms to them.

That's how the idiotic concept of "licenses" for software was born.

Note that it wasn't some loophole that allowed unlawful redistribution. You still couldn't use it to copy IBM's software to another deck of cards and sell it, since that would already be forbidden by normal copyright.

It was a loophole that allowed a plain old power grab. There was this literal-minded interpretation of the law which could be mis-construed to mean: you can't use this software at all unless we grant you a license to copy it to memory. No court would have taken it that way, and if any vendor had actually tried to use it that way it would have put them out of the market right there and then. But it was enough to make people accept the notion, rather than go to court to have it clarified.

Which then got used to weasel in more and more onerous restrictions on the user. Because, hey, if it's a license, we can set the terms of that license.

But it never was any kind of protection against actual unlawful acts of the consumer or anyone else. It was just a way to bypass the normal consumer laws and restrict your existing liberties.

3. The loophole has actually long been fixed, but the idiocy of a license for software has perpetuated. Just because everyone was already used to that notion.

And the conditions continued to grow more and more absurd. Not only it generally bypasses consumer laws entirely (e.g., first sale right), it's grown to include such bullshit clauses as "you can't give it a bad review", or "you may not use it together with our competitors' software" (right up to "and we can disable it if you do"), or "we may spy on your in any way imaginable", or essentially "we can unilaterally and retroactively change the terms you 'agreed' to retroactively, in a patch you can't refuse."

(MMOs for example love to change terms and conditions like that, and refusing it essentially disables the software you've paid for. No fallback to using the old version with the old conditions or anything. At least theoretically you can refuse to install even a Windows security patch if it tries to retrofit the EULA, but you can't refuse a WoW patch without essentially disabling your software and forfeiting your remaining paid time.)

4. And since that loophole no longer exists, we hear more and more idiotic strawmen used to justify it.

E.g., that otherwise you might imagine that you bought the rights to MS Word itself instead of just a copy of it. Excuse me? When was the last time anyone went on court record as thinking he bought the whole rights to War And Peace because he bought the book from Amazon? The concept of buying a copy is and was already very clear to everyone, and already defined by copyright laws. Books don't need the extra EULA to clarify that, music doesn't, DVDs don't, etc. Why the f-word is software so special that people couldn't possibly understand the same distinction there?

5. Basically what I'd like to see clarified once and for all (by the FTC or anyone with the legal power) is to declare the whole idiocy illegal. You bought a copy, same as for a book or DVD, and the exact same copyright law and consumer rights apply, as for a book or DVD. That's it. Anything else is null and void unless negotiated in person between you and a representative of the company.

I don't want it clarified in the sense of "well, they can still claim your firstborn son, but not the second one too". I want to see software proclaimed as essentially no more special than anything else which was already covered by copyright.

Re:Even that's too complicately put (3, Informative)

skeeto (1138903) | more than 5 years ago | (#26694529)

EULAs are even older than that. Edison put a EULA on his phonograph records [alchemysite.com] all the way back in the 19th century.

Patented in Great Britain, Germany, France and other Countries. This record is sold upon the condition that it shall not be re-sold to or by any unauthorized dealer or used for duplication, and that it shall not be sold, or offered for sale, by the original, or any subsequent purchaser (except by authorized jobber or factor to an authorized retail dealer) for less than 35 cents in the United States, nor in other countries for less than the price given in the current Edison catalogues of the country in which it is sold. Upon any breach of this condition, the license to use and vend this record, implied from such sale, immediately terminates.

Edison was a freaking dick.

Re:Even that's too complicately put (0)

Anonymous Coward | more than 5 years ago | (#26695325)

There was this literal-minded interpretation of the law which could be mis-construed to mean: you can't use this software at all unless we grant you a license to copy it to memory. No court would have taken it that way, and if any vendor had actually tried to use it that way it would have put them out of the market right there and then.

The courts in the UK did choose this interpretation. It may be absurd, but given copyright law it was the only interpretation they could choose. And it seems to have had no effect on software vendors' profitability.

Indeed, it's unlikely the loophole would have been closed in the USA if lawyers hadn't thought your courts could go the same way.

The damages though are nil (0)

Anonymous Coward | more than 5 years ago | (#26697057)

At the time if you broke the copyright and copied the file for your own personal use after paying for it, the total damages were nil.

Therefore, since the UK had it as a civil tort not criminal one, the license could be broken at will and no recompense was due the copyright holder since no damages were incurred.

Then the US and BPI/FAST/FACT got criminal tagged on to the civil law and that all fucked up because they didn't change the personal use clause.

Re:The damages though are nil (0)

Anonymous Coward | more than 5 years ago | (#26699211)

That's not true.

Small scale personal copying is still a civil matter as it has always been. The copyright holder has always been able to claim damages because of the possible lost sale. And copyright holders haven't usually bothered because the cost of a suit far outweighs the damages.

Legally, nothing much has changed. The main difference is that copyright holders are pursuing individuals for infringement where they are uploading to the internet. But it is still a civil matter.

Re:Even that's too complicately put (1)

vux984 (928602) | more than 5 years ago | (#26696987)

(MMOs for example love to change terms and conditions like that, and refusing it essentially disables the software you've paid for. No fallback to using the old version with the old conditions or anything. At least theoretically you can refuse to install even a Windows security patch if it tries to retrofit the EULA, but you can't refuse a WoW patch without essentially disabling your software and forfeiting your remaining paid time.)

Lousy example. WoW is a bona-fide service that simply requires software to access. If you refuse to upgrade your software, you can, but you can no longer use the service. Because you pay monthly, if they change the terms of service, and you aren't happy with it, you can cancel the service. You DON'T have a contractual agreement to receive the service under the original terms.

The only possible counter argument would be those who prepay multiple months at a time; THEY might be able to argue that WoW can't change the terms of service on them until they renew. But at the end of the day, its a video game, and if push game to shove, if those users got up in arms over it and sued WoW, all they'd get back is the balance on their account. -- and they could accomplish that with a determined call to customer support. I know. I've done it.

Re:Even that's too complicately put (0)

Anonymous Coward | more than 5 years ago | (#26697369)

Lousy example. WoW is a bona-fide service that simply requires software to access. If you refuse to upgrade your software, you can, but you can no longer use the service. Because you pay monthly, if they change the terms of service, and you aren't happy with it, you can cancel the service. You DON'T have a contractual agreement to receive the service under the original terms.

The only possible counter argument would be those who prepay multiple months at a time; THEY might be able to argue that WoW can't change the terms of service on them until they renew. But at the end of the day, its a video game, and if push game to shove, if those users got up in arms over it and sued WoW, all they'd get back is the balance on their account. -- and they could accomplish that with a determined call to customer support. I know. I've done it.

In WoW's case, it is a valid example. You have to pay for a license (CD-key) to use the software to connect to their service. I would also say most probably get additional licenses for the expansions. So if you didn't want to update, you will be out of the money you paid for the licenses as well as whatever time left you paid them for to access their service.

I also guarantee you, that if you were to try using the programs you paid for with a third party service (private servers), that Blizzard would try to find a way to unleash their lawyers on you, and that's not counting Blizzard also going after anyone who ran such a service and anyone who even wrote the server software.

I would however, agree with you if it were something like Ragnarok Online.

Re:Even that's too complicately put (1)

vux984 (928602) | more than 5 years ago | (#26698193)

In WoW's case, it is a valid example. You have to pay for a license (CD-key) to use the software to connect to their service. I would also say most probably get additional licenses for the expansions. So if you didn't want to update, you will be out of the money you paid for the licenses

I disagree. If I buy a security doo-hickey that changes numbers every few seconds to access my bank account, and then stop using that bank because I disagree with changes to their fee structure or something, I'm "out the money" I paid for the doo-hickey, but that's not an "EULA" or "licensing issue". Its not like because I paid for this doo-hickey I have some special rights over the banks policies going forward.

The WoW client is the same thing. Its just a doohickey you use to access the service.

as well as whatever time left you paid them for to access their service.

While this is what they write in their terms. If you specifically disagree with their updated terms of service, they WILL refund you for the prepaid time remaining, with a determined call to customer support.

I also guarantee you, that if you were to try using the programs you paid for with a third party service (private servers), that Blizzard would try to find a way to unleash their lawyers on you, and that's not counting Blizzard also going after anyone who ran such a service and anyone who even wrote the server software.

Here, at least, you are categorically right. I think its utter and complete bullshit that Blizzard should try and restrict what you do with the client, especially when NOT in conjunction when using their service.

Re:The opposite of what the EULA was invented for. (1)

Fieryphoenix (1161565) | more than 5 years ago | (#26693895)

Joystiq is not saying that EULAs are or will become consumer protection. Rather, that the act of regulating them will be consumer protection.

Re:The opposite of what the EULA was invented for. (1)

Svartalf (2997) | more than 5 years ago | (#26694947)

The thing is, I think the GP poster is referring to the fact that the best consumer protection is to flat-out state that EULAs, in the large, are not legal. The WoW case is actually one where someone could define an End-User License Agreement (because you're using their servers, etc...), but pretty much everything else is not applicable because of the reasoning that they used in their argument there.

I'd have to concur, if that's what he's saying.

EULA = CYA (1)

queenb**ch (446380) | more than 5 years ago | (#26700337)

You are quite correct because the EULA is all about covering your ass as a company. Most of it boils down to "You're paying us for this software and we're not even going to promise you that it will work, much less work properly. If it doesn't work, you're screwed. Have a nice day."

2 cents,

QueenB.

Legal? (3, Informative)

im_thatoneguy (819432) | more than 5 years ago | (#26691777)

I thought EULAs were by and large found to be toothless since the customer must open the package to agree to it. By which point the transaction is complete sans EULA.

EULAs are in my book stupid but mostly harmless. It makes the company feel like its ass is covered but you can't agree to sign away rights. You can't agree to be a slave regardless what you sign.

I suppose the FTC could make them officially impotent but it's not high on my list of priorities.

Re:Legal? (2, Informative)

ushering05401 (1086795) | more than 5 years ago | (#26691795)

I thought EULAs were by and large found to be toothless since the customer must open the package to agree to it. By which point the transaction is complete sans EULA.

You are referring to 'shrink wrap licenses.' There is an online equivalent known as 'click wrap licenses.'

I haven't seen a recent example of either of these rather egregious license delivery mechanisms in quite a while.

Re:Legal? (2, Insightful)

im_thatoneguy (819432) | more than 5 years ago | (#26691915)

Isn't every EULA a '* wrap license'? What do you do if you don't agree to a EULA? I don't know of any stores that will accept software once you've opened it. In order for anything in the EULA to be binding it needs to be agreed to prior to transaction. So it would seem to me by definition a EULA is legally worthless. I've spent money. Whatever was marketed on the packaging is what I agreed to purchase. No "take backs". Transaction done.

Re:Legal? (2, Informative)

arogier (1250960) | more than 5 years ago | (#26691945)

Every now and then someone gets a refund by not agreeing to the EULA, but its a rare enough occurrence that you generally find out about the refund by reading the news.

Re:Legal? (1)

Jane Q. Public (1010737) | more than 5 years ago | (#26697037)

There is not a single major retail chain in the United States that will give a refund for opened software. The software companies made sure of this many years ago, because they did not want people opening the package, copying the disk(s), and then returning the product.

So the software companies are VERY aware of that situation, and any statement in their EULA to the effect of "returning the product if you do not agree" is just so much hot air... bordering on fraud, in fact.

Re:Legal? (1)

harl (84412) | more than 5 years ago | (#26699181)

According to Blizzard v bnetd they have to provide a refund if you decline the EULA.

Re:Legal? (1)

sumdumass (711423) | more than 5 years ago | (#26691975)

Most companies started puting disclaimers on the boxes saying "this product is governed by a "end user license agreement" goto Thisweb.site, read and agree to the EULA before opening this product.

I don't know how sane that is if a court ever hears a case concerning it. But I guess it was a response to a case about not being able to get a refund before. I think Bestbuy was involved too.

Re:Legal? (2, Insightful)

Joe U (443617) | more than 5 years ago | (#26694537)

Most companies started puting disclaimers on the boxes saying "this product is governed by a "end user license agreement" goto Thisweb.site, read and agree to the EULA before opening this product.

I think that should be tossed out as well. It requires you to find an Internet connection and look up something on a website while standing in a store thinking 'hey, this new game looks like fun, I think I'll buy it'. It's the equivalent of the "Beware of the Leopard" display method.

There's a simple solution that absolutely no major company would ever resort to. Put the EULA on a fold out attached to the box and optionally make the end user sign it before purchase.

Re:Legal? (1)

ushering05401 (1086795) | more than 5 years ago | (#26691995)

No, not every EULA is a wrap license. Perhaps you are thinking of software solely as something distributed by large corporations.

You do have me on one point, though. It had not even occurred to me that people still buy software off a shelf.

Don't you lurk through the support forums before buying a package? I research the licensing, relicensing, and EULA situations before considering products for purchase. And then I usually either download or order online - basically, if you are getting caught off guard by wrapped EULAs then something is wrong ;)

On another note, the click wrapping i referred to above is apparently not the practice I wanted to reference. I cannot find the right term right now, but it is used with bundled software - the installation of one package is considered consent to install additional unspecified packages at the discretion of the distributor...

Re:Legal? (1)

cfulmer (3166) | more than 5 years ago | (#26694829)

At least in the US, that's not generally true. The general rule now is that EULA are enforceable if you have notice that there are additional terms and an ability to return the software once you have had a chance to review the terms. The "notice of terms" often happens with a brief notice on the outside of the box.

When you buy a TV, the warranty comes inside the box. And, nobody says that's not binding. Why is software different?

The law is still up in the air abit, largely because there are very few cases where it comes up.

But you can't... (1)

Jane Q. Public (1010737) | more than 5 years ago | (#26697161)

The problem is that there is not a major retailer anywhere in the United States that, as a policy, will give refunds on software once the package has been opened. The software companies know that, because THEY were the ones who lobbied the retailers to put those policies in place. They did not want people buying a product, copying the disk(s), then returning it to the store.

So the clause that states that one should return the software if one does not agree to the EULA is misleading, probably to the point of actual fraud. The software companies are very aware of the situation, so telling customers to return a product is like telling them to anything else that is impossible, like swimming the Atlantic Ocean unaided.

This makes the EULA even more a "contract of adhesion", since despite the return clause, there are actually no viable alternatives.

Also, your analogy is not valid. A warranty is NOT a "license". They are completely different concepts. Since you brought it up, however, let me say that manufacturers and retailers have tried the EULA concept on just about every kind of product in existence -- included printed books -- and in EVERY case except for software, the courts have rejected the concept. Why should software be any different, when it gets its day in court?

Re:But you can't... (1)

cfulmer (3166) | more than 5 years ago | (#26699751)

You're right. That is a problem. In general, the fallback then is to go to the manufacturer. Oddly, manufacturers aren't equipped to deal with it.

A warranty is a contract term. Acceptance of the EULA becomes part of the sale contract. My point is that this is just another example of "pictures on the outside, terms on the inside." I should note that this idea is straight from when software did get its day in court -- it's from either the Gateway decision or the ProCD decision.

Re:Legal? (1)

russotto (537200) | more than 5 years ago | (#26698047)

At least in the US, that's not generally true. The general rule now is that EULA are enforceable if you have notice that there are additional terms and an ability to return the software once you have had a chance to review the terms. The "notice of terms" often happens with a brief notice on the outside of the box.

Or, at least, that's the case in some Federal Circuits.

When you buy a TV, the warranty comes inside the box. And, nobody says that's not binding. Why is software different?

Warrantees, and disclaimers thereof, are governed by specific legislation including the Federal Magnussen-Moss Warranty Act. What's the equivalent for EULAs? There's no specific legislation aside from in the two UCITA states. So you have to fall back to contract law. But under contract law, EULAs are an awful strange beast. A product is sold by a manufacturer, to a distributor, to a retailer, to an end user... but now the end user has the obligation to either agree to a contract of adhesion, or give up the benefits of the product which he already bought? That makes no sense. There's no meeting of the minds. There's no consideration given, in most cases. There's not even any contact between the two supposedly contracting parties. And you can't validly bring the Uniform Commercial Code into it, because the UCC is limited to a contract for the sale of goods -- and EULAs nearly always try to claim the software hasn't been sold but licensed.

Re:Legal? (1)

kabocox (199019) | more than 5 years ago | (#26694909)

I thought EULAs were by and large found to be toothless since the customer must open the package to agree to it. By which point the transaction is complete sans EULA.

EULAs are in my book stupid but mostly harmless. It makes the company feel like its ass is covered but you can't agree to sign away rights. You can't agree to be a slave regardless what you sign.

I suppose the FTC could make them officially impotent but it's not high on my list of priorities.

I think that it should be high on the FTC's list of priorities even if you don't care about it. If they've got it on the books, that EULAs can't do X, or only limited to Y set of stuff, then when they need to use the iron club over a company/group, they'll have the legal prep work ammo that they need.

Re:Legal? (1)

harl (84412) | more than 5 years ago | (#26699089)

You are completely wrong. EULA have been tested in court in the USA. They are binding legal contracts. The case is ProCD v Zeidenberg. [findlaw.com]

If you don't like the EULA then you can return the product for a refund. That was Blizzard v bnetd I think.

About time.... (0, Troll)

jamesmcm (1354379) | more than 5 years ago | (#26691791)

So it looks like the government might finally start protecting user's rights. Of course, you shouldn't rely on the government to protect you, just use Free Software.

Re:About time.... (1)

Anonymous Coward | more than 5 years ago | (#26691839)

I prefer software that works, thank you very much.

(No, not all Free Software is broken, but by god are the closed source commercial alternatives usually not just better, but so much better there's barely even a comparison to be made)

Re:About time.... (1)

jamesmcm (1354379) | more than 5 years ago | (#26692061)

Which programs are you talking about?
I don't know about Photoshop and GIMP as I don't use either of them but all of my most used applications are Free Software:
Pidgin, Firefox, Irssi, TuxGuitar (like Guitar pro but cross-platform), VLC, etc.

So a comparison can definitely be made.
But don't let facts get in the way of your trolling.

Re:About time.... (1)

Octorian (14086) | more than 5 years ago | (#26693041)

For major applications, I can agree with you much of the time.

For utility programs and minor applications, I often find a far different situation. The commercial program needs to justify its existence, so they tend to feature-load it to the point of making it an overpriced and annoying pile of crap. Meanwhile, the F/OSS app just does what its intended to do, and doesn't get in your way.

Hidden clauses? (4, Funny)

Thanshin (1188877) | more than 5 years ago | (#26691953)

Soon EULAs and mail hoaxes will be impossible to distinguish.

By having read the above paragraph, you agree to send your fist male son to our slave mines in Burundi. You also implicitly declare that all your bases are belong to us.

If you don't agree with our user agreement, you have to immediately send the product back to our factories, located in the third moon of planet XN-24-Pu3d. Failure to do so in the next five seconds may result in your incarceration and, possibly, sudden death.

This isn't news (1)

NovaHorizon (1300173) | more than 5 years ago | (#26691987)

This is an speculative opinion made by the poster of the article this thread is referencing, not a new bit of news.
This shouldn't be posted until there's someone with a little more authority on the decision than a columnist saying it.

Bah! Leave It Alone (4, Insightful)

BlueStrat (756137) | more than 5 years ago | (#26692125)

Anyone actually think the government is getting involved to make EULAs fair for consumers?

I mean, think about it. Right now, they're basically fairly unenforceable without the corporation and EULA in question having to go to court and at the minimum get a decision in a particular case and maybe set an individual precedent.

If EULAs basically have no or very little legal weight currently, what's the purpose of the FTC getting involved, unless it's to give them force? Especially now that there's a more media-and-entertainment-industry-friendly government in power now.

Having the FTC get involved means that EULAs will then have a legal framework of government regulations to back them up. It's certain that any such regulations will allow consumers to get bent-over all legal-like, either by what's actually in the regulations, or what they allow by omission and loopholes in the wording.

In looking out for citizens' rights and interests vs corporate interests & profits, I trust the government about as far as I can throw the US Capitol Building.

Cheers!

Strat

Re:Bah! Leave It Alone (1)

mcelrath (8027) | more than 5 years ago | (#26692325)

"To make laws that man cannot, and will not obey, serves to bring all law into contempt." -- Elizabeth Cady Stanton

In other words, we're training a generation of people to ignore and disobey the law. (In this case, contract and copyright law) Then, when we create truly important laws, we will wonder why everyone ignores it. The law must be brought in line with actual practices, or it is useless. Defining a large segment of the population as criminals is a great way to create a fascist government, but pretty useless for a democracy.

Re:Bah! Leave It Alone (1)

zwei2stein (782480) | more than 5 years ago | (#26692571)

We are creating generating where everyone is gonna be guilty of some crime because normal life would be impossible without breaking all those ridiculous laws.

Laws not enforced if citizen plays nice, but very useful to take care of troublemakers. Legal way to lock up anyone for life on whim.

You said it yourself - great way to create fascist government.

Re:Bah! Leave It Alone (0)

Anonymous Coward | more than 5 years ago | (#26693593)

That process has already worked on me. When I want to do something illegal, I don't think "Better not, it's against the law", but rather "What is the likelihood of getting caught?"

Re:Bah! Leave It Alone (0)

Anonymous Coward | more than 5 years ago | (#26694373)

Especially now that there's a more media-and-entertainment-industry-friendly government in power now.

It's also friendlier to consumers and more conscious of personal freedoms. That's significant. We can at least hope to have more of a compromise than the corporate feeding frenzy we've seen over the last few decades.

On the other hand, the gentleman [wikipedia.org] who introduced the DMCA back in 1997 is still in office. It's going to be a while before the old guard is completely flushed out.

Here we go! (1)

WeeBit (961530) | more than 5 years ago | (#26692139)

If this is for real...

The EULA's are bad enough as they are....So lets hope the FTC doesn't screw this up, and leave enough loopholes in it to cause the consumers to cry foul.

EULAS (4, Insightful)

scientus (1357317) | more than 5 years ago | (#26692323)

EULA's are not very enforceable: users don't agree to them and they are contracts of adhesion.

No papers are signed, both parties do not generally agree, and they are filed with unconscionable statements.

Almost all EULAs claim to limit users right to resell the software, however this is unenforceable due to the First-sale doctrine [wikipedia.org]

Copyright gives sole right to its holder the right to create copies of works, however it does not allow that holder to control what their work is used for after it has been purchaced. (besides having purchasers not make more copies of it)

Re:EULAS (1)

Peeteriz (821290) | more than 5 years ago | (#26692665)

Exactly, and that's why consumer protection agencies should work to ensure that products sold in USA stores are not allowed to contain EULA's with misinformation about consumer rights.

Re:EULAS (2, Insightful)

wild_quinine (998562) | more than 5 years ago | (#26693021)

EULA's are not very enforceable: users don't agree to them and they are contracts of adhesion.

I wish that were true. Unfortunately what once worked for us (the fact that nobody could really do anything about it if we broke the EULA) now works against us: companies are starting to limit our rights using online activation and restrictions, and now we're the ones who can do nothing about it. A few flailing class actions aside, who's going to go to court over a $40 game? What shops take opened products back - especially ones that are now useless?

Almost all EULAs claim to limit users right to resell the software, however this is unenforceable due to the First-sale doctrine

I wish that were true, too. But since many games that you buy these days are tied to an online account, which in some cases contains the rights to play all of your other games, you really can't resell them. The few services that let you sell individual games from such an account generally charge a 'nominal' fee, which is just enough to make it under no circumstances worth doing so.

You can sell your whole account of course, if you want to sell all your games at once.... except that you can't, of course. If you sell your World of Warcraft or Steam account, that's grounds for it being cut off.

I understand that you're using the term 'unenforceable' to mean 'not legally enforcable'. But let's not beat around the bush - this stuff is starting to become very easy to enforce in spite of the law, and nobody is, or currently can, do anything about it.

I also understand that it's not all about the games. In fact, the most unconscionably EULAs usually are on corporate software. But I talk about games primarily because I know games, I used to love games, and I'm genuinely losing interest in one of my favourite hobbies because of how the customer is being treated.

STEAM (0)

Anonymous Coward | more than 5 years ago | (#26694005)

I hate steam for this reason. You can't resell your games.

Of course, just about every Windows gamer loves Steam. I guess you don't need to set the bar very high to get a PC gamer to buy your game. It's no wonder onerous DRM is on the PC.

The really irony is that it Steam actually makes games very easy to pirate. No need to get wait for an updated no-CD crack. No need to enter serial numbers. No need to have media physically present. No need to make a PITA backup copy of the copy-protected CD.

Really, Steam makes it painfully easy to pirate games. Valve mostly creates single-player games so it hurts them even more.

Re:EULAS (0)

Anonymous Coward | more than 5 years ago | (#26694131)

There's plenty you can do about it: Stop buying software that you can't use in perpetuity, and stop buying software that you can't move onto another machine at will, and stop buying software that requires activation to run.

Sure, there's plenty like that. Here's how I avoid it:

  - Let my employer do the dirty work of dealing with licenses. I have the software I need to do my work on my work computer, and that's where I do my work.
  - Buy a console, and by only console games. Sure, there's some DRM there, but it's extremely lame and designed in a such a way you can buy and sell used games (well, except for ones with 90%+ downloadable content--which I check for carefully and refuse to buy). The lame DRM that is built in never gets in the way unless the console or game are broken.
  - Don't use windows at home. Or, if you have to, make that your only DRM software purchase. At least you can trust that M$ will be slapped to hell and back if they stop supporting the phone lines to activate your windows.
  - Use free software for stuff you do at home. I can guarantee you for the non-professional, gimp, openoffice, etc. will do the job 110% fine for you. If you are a professional, see above about having a work PC. The risks and pitfalls of DRM are risks of doing business and you can charge accordingly.

There you go. I can do absolutely everything my friends and family do with their computers, and I can play all the games they do without any hassle.

Re:EULAS (1)

wild_quinine (998562) | more than 5 years ago | (#26696629)

There's plenty you can do about it: Stop buying software that you can't use in perpetuity, and stop buying software that you can't move onto another machine at will, and stop buying software that requires activation to run.

Yes, that's pretty much what I've stopped doing.

You're kind of missing the point though. This used to be my hobby. These were things I was looking forwards to playing with. Now they're ruined, and I don't play them. I fail to see how losing a hobby, giving up on things I cared about, and missing out on the hot title I waited two years to see in production is anything other than a pyrrhic victory.

Re:EULAS (1)

kabocox (199019) | more than 5 years ago | (#26695095)

I also understand that it's not all about the games. In fact, the most unconscionably EULAs usually are on corporate software. But I talk about games primarily because I know games, I used to love games, and I'm genuinely losing interest in one of my favourite hobbies because of how the customer is being treated.

I know computer games can be fun, but they can be highly annoying to setup/use. That's why the bulk of my gaming library is PS2. If I want to play something, I just stick it in the PS2, see the sony logo, the game company logo, the splash screen/intro movie, then hit new game/continue.

Now on just about any free computer game that my kids want to play. It's install/upgrade flash. It's "freely" register with us before we let you touch our "free game." It's be annoying, jump through a few hoops, and then we can start on the tech. specs if your machine isn't even good enough for the program. I've avoided computer games for awhile because it's always been a mystery if any given game would work decently in my computer. Contrast that with any video game console. If I want a PS2, Wii, or DS game, I see the damn logo at wal-mart and know that the game will always "just" work.

After working as the IT fix-it guy at work, it is nice not too worry about that crap at home as well. Sure, I miss out on some things like WOW, but I've still got a stack of games that I've yet to play through that don't cost me per month, or that annoy me too much to put the damn disc in the machine. When I have to create an account or register to play a console game, that's pretty much when I'll decide to stop playing console games.

Re:EULAS (1)

mxs (42717) | more than 5 years ago | (#26693081)

Almost all EULAs claim to limit users right to resell the software, however this is unenforceable due to the First-sale doctrine.

... And now, try to get that enforced. Start in operating systems, then have a whack at iTunes (the DRMed kind), and once you're done go have fun with the games industry (I hear EA is eagerly awaiting your lawsuits).

The best of luck to you. Really.

Hell, Microsoft ist selling non-resellable OEM copies without media now, as well as several versions of Windows designed to only work on the first computer they are installed on, codified in the so-called license. Have fun.

Re:EULAS (1, Insightful)

Anonymous Coward | more than 5 years ago | (#26693469)

Hell, Microsoft ist selling non-resellable OEM copies without media now, as well as several versions of Windows designed to only work on the first computer they are installed on, codified in the so-called license. Have fun.

Yet another reason people should ditch Microsoft and their appalling excuse for a operating system.

Letting a private company own your ways of communication and expression is pure stupidity. In doing so you allow that company to ruin your work and intrude upon your life.

http://arstechnica.com/microsoft/news/2007/07/microsoft-patents-the-mother-of-all-adware-systems.ars [arstechnica.com]

Those are good and true points. PLUS... (1)

Jane Q. Public (1010737) | more than 5 years ago | (#26696939)

If you look into the history of this, you will find that in the past, corporations have tried the EULA concept on just about every type of product other than software, and have been shot down in the courts every time. I don't remember the specifics enough to cite the case properly, but there is legal precedent stating that if you go into a retail store, put down your money, and walk out with a product that was on the shelf -- barring any prior agreement with the store or manufacturer -- then you have PURCHASED that product, not "licensed" it, regardless of any language on the package. And most particularly, regardless of any language that is IN the package.

I really wish I could remember the specific case because it has direct bearing on this issue.

Even though I do not have that information at this time, I can still safely say that the EULA concept has been tried on just about everything, and the courts have very consistently rejected the idea. You can't place "after the fact" conditions on a purchased product.

Note that this concept does not hold, however, if you purchased your product direct from the software company, say for example, and agreed to a EULA before the sale. In a case like that, the EULA may be enforceable.

Re:EULAS (1)

harl (84412) | more than 5 years ago | (#26699339)

EULA's are not very enforceable: users don't agree to them and they are contracts of adhesion.

The 7th Circuit Court disagrees with you. Please read ProCD v Zeidenberg and Blizzard v bnetd (may not be 7th circuit).

No papers are signed, both parties do not generally agree, and they are filed with unconscionable statements.

It's impossible for an EULA to be unconscionable since it is a luxury good. It is completely declinable. There is no harm in declining it. Impossible to meet the test.

Almost all EULAs claim to limit users right to resell the software, however this is unenforceable due to the First-sale doctrine [wikipedia.org]

First sale doctrine does not apply. You signed a legal contract agreeing that you did not own these things and that you were renting access to a service. No ownership no doctrine.

Copyright gives sole right to its holder the right to create copies of works, however it does not allow that holder to control what their work is used for after it has been purchaced. (besides having purchasers not make more copies of it)

Completely true. Which is why they have you sign the contract(EULA) which allows them to make these restrictions.

License vs. Own, one or the other (5, Interesting)

GTarrant (726871) | more than 5 years ago | (#26692693)

Right now, every time it is more convenient for someone to say "It's a license! Not a 'sale'!", they get to say that. It's in the EULA!

Yet every time it's more convenient for them to say "You bought it! It's yours!", they get to say that too.

If you lose a book, no one would say you get a free book - you bought the book. Sure the book is covered by copyright, but that doesn't mean you "licensed" the book. You lose it, then you have to get another one.

But with software, if you lose it, it's "Oh, sorry, you bought the software, it would be piracy to get another." It's in their favor to consider it "yours" for that. But in almost every other way, it's a "License!" that they have full control over.

IMO, one or the other. If it's just a license, then as long as it's registered in some way, if I lose it, give me a new one. If it's mine, then let me sell it when I'm done.

Right now, the corporation wins no matter what I do.

Re:License vs. Own, one or the other (1)

wild_quinine (998562) | more than 5 years ago | (#26693049)

Right now, every time it is more convenient for someone to say "It's a license! Not a 'sale'!", they get to say that. It's in the EULA! Yet every time it's more convenient for them to say "You bought it! It's yours!", they get to say that too. Right now, the corporation wins no matter what I do.

I absolutely agree with this, and you would be getting modded up if I hadn't already replied to the post above yours. Also, I have no mod points.

My feeling is that, of course, this will eventually change for the consumer's benefit. But I think that is still some time off, and meanwhile not only are software companies lobbying for whatever they want, not only are they doing and saying whatever they want, but they're implementing unfair activations, limitations, and DRMs to get away with whatever they want. It's a damn racket.

It's even funnier (2, Informative)

Moraelin (679338) | more than 5 years ago | (#26695335)

Actually, it's even funnier. IIRC in India they actually tax licenses. So if you have an actual license, say, to make a movie based on someone's book, the government wants its share of that deal.

So they took this to the logical conclusion: if Microsoft's software is licensed, not sold, the license tax should apply.

Microsoft actually tried to prove to the court that it's a sale not a license.

Funny stuff.

Recent court cases (1)

Jane Q. Public (1010737) | more than 5 years ago | (#26697229)

have pretty consistently upheld the idea that the "first sale doctrine" applies to software, just as it does to books. In other words, you walked in to the store and bought it, and you have the right to sell it when you are done with it.

No we won't (1)

Chemisor (97276) | more than 5 years ago | (#26692717)

> The development and legal communities would, I assume, vehemently oppose this idea, but it is possible.
> Basically, the FTC would come up with a list of things all EULAs include, then a list of optional provisions
> that the licensor (the game company) could include.

Why would anyone oppose that? Standardizing license clauses reduces everyone's workload. A small company would not need a team of lawyers to write a EULA. And the user will be able to tell what each license means without having to read the whole bloody lawyer-speak thing. This is good.

Re:No we won't (1)

IBBoard (1128019) | more than 5 years ago | (#26693075)

You mean a bit more like the Creative Commons site does for things like the GPL [creativecommons.org], LGPL [creativecommons.org] and others? Yeah, that'd be extremely useful. While it's not so legally strict, it means you can actually understand what people can and can't do, which is more than a legal document does for most people!

Re:No we won't (0)

Anonymous Coward | more than 5 years ago | (#26695361)

Everyone should oppose it because EULAs shouldn't exist at all. First of all, they're 'contracts of adhesion' because you've already bought the software before agreeing to them. Second, either the software is licensed or sold; the publisher shouldn't be allowed to have it both ways!

EULAs should be illegal. All of them, without exception.

(Nota bene: corporate negotiated contracts and distribution licenses (like the GPL) are not EULAs.)

Plain language EULAs exist today (1)

they_call_me_quag (894212) | more than 5 years ago | (#26693427)

I once was the VP of Sales for a software company. At one point I took it upon myself to completely rewrite the EULA in plain language and then I had an attorney "lawyerize" it before making it our new license.

This is not difficult, in fact it's much easier than actually writing software. Here's the license. [realsoftware.com]

Easy to read and not objectionable... eh? We put the bulleted summary at the top so that the key points would be visible in the UI.

Other companies don't do this because they choose not to.

Borland Software (1)

Jane Q. Public (1010737) | more than 5 years ago | (#26697265)

used to have what they called their "No Bull license agreement."

The agreement stated (I am paraphrasing but this is pretty close): "Treat it like a book. Use it only in one place at any given time."

In other words, you could install the software on different machines, say at home and at work, as long as you only used one of them at a time.

Seems pretty darned reasonable to me. Of course the lawyers took over and they don't have that in their license anymore. Too bad.

WOOHOO!!! (0)

Anonymous Coward | more than 5 years ago | (#26695731)

(this is coming from an anarchist who hates all government)

I am sick of fifty page EULAs that allow big corporations to spy on my and delete my files at will. It's time to throw Steve Balmer in prison for claiming that he can commit fraud and get away with it! (that's in the XP SP2 EULA)

Commie pinko liberals (0)

Anonymous Coward | more than 5 years ago | (#26696319)

More consumer protection is socialism!

We don't do socialism. They had consumer protection in the Soviet Union and look where that got them.

EULA = Waste of Time (1)

mrapps (1025476) | more than 5 years ago | (#26700019)

I've said it before but what is the actual point of them apart from allow the companies to discharge all responsibility for everything, ever?

Hence there's not been one EULA I've taken the slightest bit of notice of, and I'm sure I'm not the only one. They are a waste of time.

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