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The Basics of EULAs

michael posted more than 9 years ago | from the read-before-you-click dept.

The Courts 522

Garthilk writes "Blizzard recently made a bit of press when they announced that they would be actively enforcing their End User License agreement and prohibit the third party sale of game items and characters. Many people don't believe these clickthrough EULAs to be enforceable contracts. Thankfully Don Shelkey from the Corporate Finance and Technology section of the law firm Buchanan Ingersoll stops by to give us the low down. Mind you he is speaking on his own behalf and not on behalf any of his clients."

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522 comments

1st rule (2, Insightful)

thundercatslair (809424) | more than 9 years ago | (#11419116)

the number 1 rule with the EULA is screw the customer.

Re:1st rule (1)

mirko (198274) | more than 9 years ago | (#11419138)

It depends, I'd rather say they're here to symbolically ask him to deny its constitutive rights : the problems is that they don't apply in European countries, unless they stick to the local code of laws... Maybe in England but IANA(English)L.

F** you (-1, Offtopic)

Anonymous Coward | more than 9 years ago | (#11419166)

US right attacks SpongeBob video

Spongebob is popular among adult gay men
US conservative groups are up in arms over a music video featuring children's TV heroes such as the cheerful cartoon character SpongeBob Squarepants
http://news.bbc.co.uk/2/hi/americas/4190699.stm [bbc.co.uk]

Re:1st rule (2, Funny)

Anonymous Coward | more than 9 years ago | (#11419144)

Such a comment kind of reminds me of this quote:

http://www.bash.org/?6107

Re:1st rule (-1, Offtopic)

compro01 (777531) | more than 9 years ago | (#11419172)

who modded this down? this is insightful if i've ever seen it!

i knew i shouldn't've used up those mod points yesterday....

Re:1st rule (4, Funny)

ginbot462 (626023) | more than 9 years ago | (#11419177)

I thought the first rule of the EULA was not to talk about the EULA (so there IS a rule /. obeys).

The bottom line (-1, Redundant)

Pan T. Hose (707794) | more than 9 years ago | (#11419120)

I will believe that EULAs are enforcable as soon as the first EULA is enforced, but not sooner.

Re:The bottom line (5, Informative)

Famanoran (568910) | more than 9 years ago | (#11419186)

RTFA.

EULA's have been enforced.

Re:The bottom line (1, Interesting)

Anonymous Coward | more than 9 years ago | (#11419244)

You RTFA. Those were not EULAs in the strict sence that have been enforced, not alone. It give such an impression, just like SCO's lawsuits gave the impression that they were about patents and copyrights while they were in fact about contracts. Those are side issues.

Re:The bottom line (5, Insightful)

The Snowman (116231) | more than 9 years ago | (#11419220)

I will believe that EULAs are enforcable as soon as the first EULA is enforced, but not sooner.

I think the real issue is whether shrinkwrapped EULAs are enforceable, not EULAs in general. If I can view the EULA online, for example, as with GPL'd software, then why shouldn't it be legal? But if I have to pay money, remove shrinkwrap, view license keys, insert CDs, then have the option of reading the EULA, but cannot return the opened software if I disagree, should that be legal?

I don't think it should be legal, but then again I am not a lawyer, judge, or Congressman.

Re:The bottom line (4, Informative)

Xpilot (117961) | more than 9 years ago | (#11419255)

If I can view the EULA online, for example, as with GPL'd software, then why shouldn't it be legal?

GPL'ed software has no EULA, and the GPL does not rely on contract law, rather it uses copyright law as it only covers distribution of the program, not how it is used.

Standard disclaimer : IANAL

Re:The bottom line (2, Insightful)

The Snowman (116231) | more than 9 years ago | (#11419336)

GPL'ed software has no EULA, and the GPL does not rely on contract law, rather it uses copyright law as it only covers distribution of the program, not how it is used.

The GPL is still a type of contract. Copyright itself is a type of contract -- the owner grants me permission to use the product if I agree to abide by the terms of the license. This license may be "pay me $20 for a CD and promise not to copy it" or it might be "take it for free, change it, and give it away."

Re:The bottom line (3, Insightful)

squiggleslash (241428) | more than 9 years ago | (#11419415)

-- the owner grants me permission to use the product if I agree to abide by the terms of the license.
That's not the case. You have the right to use the product anyway.

The GPL gives you additional rights not offered by default in copyright law. It doesn't require you do anything, it merely says "If you do such and such, in this kind of way, you're ok".

All of which is getting off-topic. The GPL is not an EULA, at least not usually (there are a lot of braindead installers out there I've noticed for OS X that force users to "Agree" to the GPL before installation, interestingly I wouldn't be surprised if non-copyright holders distributing such packages are actually violating the GPL by distributing it in such packages...

The GPL only grants rights. EULAs restrict them. The GPL says "You didn't have the right to do this before, you can now do this"; EULAs say "We don't care what copyright law says you can do, we're tearing up those rights and giving you an entirely new set."

Re:The bottom line (0)

Anonymous Coward | more than 9 years ago | (#11419314)

This is exactly the same as if you found a piece of paper in the trunk of your car after you had bought it. It's just a piece of paper until you sign it, and only then it can become a contract, if and only if the other side is notified about the fact that you have signed it. And in that sense, the original poster is right. It was never ruled that you can enter a binding contract in any other way, especially when you don't get anything in return. If I say that by answering to this post you agree to accept my contract, would it make it so? No, because if you don't agree with my contract, than you don't have to agree that by replying you accept it. It's like: by blinking your eyes in the next 30 seconds you agree that you will give me your money. This is just bullshit. And yes, IAAL.

GPL != EULA (2, Informative)

Pan T. Hose (707794) | more than 9 years ago | (#11419475)

I will believe that EULAs are enforcable as soon as the first EULA is enforced, but not sooner.

I think the real issue is whether shrinkwrapped EULAs are enforceable, not EULAs in general. If I can view the EULA online, for example, as with GPL'd software, then why shouldn't it be legal?

The GNU General Public License [gnu.org] is not an EULA. Please read it:

"5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. [...]"

Now, back yo your question: "If I can view the EULA online [...] then why shouldn't it be legal?" You should have asked: "If I can view the EULA online [...] then why shouldn't it be legally binding?" And the answer would be: do you consider everything that you read a legally binding contract? When you see a sign in the store saying that when you touch anything then you have to buy it, do you think it is true?

Re:The bottom line (0)

Anonymous Coward | more than 9 years ago | (#11419298)

Can self changing EULAs or TOSs be inforced, most are dynamic and can change at any time. This is the biggie gray area. Under law here every change must be signed off on otherwise its not valid.

I guess like most things in the USA, you are anally reamed either way :D Kinda like a corporate gang bang against the customer, employee etc etc.

Re:The bottom line (4, Informative)

Maestro4k (707634) | more than 9 years ago | (#11419358)


  • I will believe that EULAs are enforcable as soon as the first EULA is enforced, but not sooner.

While I realize it's a Slashdot tradition to not RTFA before posting about it, you really need to go RTFA. EULA have been enforced by court decisions, and apparently they go back a fair ways, there's plenty of legal precedent to enforce them now, under the right conditions.

In this case, talking about MMORPG EULAs, it's even more clear cut. You're shown the EULA every time you log in (even just the first time is enough) and have to agree to it before playing. That constitutes a legal contract even without the legal precedents already set. That's the gist of this guy's discussion.

So time to start believing they're enforceable, since they are.

Re:The bottom line (1)

mkop (714476) | more than 9 years ago | (#11419392)

Just because it has never been enforced does not mean it cannot be enforced or that it is not a legal
binding document. If that were the case when a new law was passed it does that mean it could not be enforcable until it has been enforced?

Re:The bottom line (1)

danheskett (178529) | more than 9 years ago | (#11419443)

Just as an FYI. A lot of times when a new law is passed there is a general reluctance to test it until the right case comes along.

Basically, for a while, it's just a deterrent on the fact that "someone has to be the first to test the new law". Prosecutors will waive it around, but not test it - especially if it's likely to be reasonably challeneged.

Re:The bottom line (1, Funny)

Anonymous Coward | more than 9 years ago | (#11419508)

I will believe that FAs can be read as soon as the first FA is read, but not sooner.

Illegal (0, Troll)

wintaki (848851) | more than 9 years ago | (#11419128)

This should be illegal. How can they enforce this? Between all the crazy stuff going on lately I really start to wonder what is happening to our rights.

And the worst thing is when I talk to some of my friends. They don't see anything wrong and have responses like "Hey, well, I don't care because as long as Bush keeps me safe, I am happy".

Good for blizzard for enforcing it... (2, Interesting)

chris09876 (643289) | more than 9 years ago | (#11419146)

We all remember what happened with Diablo 1 and the many godly plate of whales ;-) It will be interesting to see where this goes in the future. They say it's enforcable, but I am curious to see how enforceable it really is. It could have consequences for the entire MMORPG industry...

Re:Good for blizzard for enforcing it... (1)

Pofy (471469) | more than 9 years ago | (#11419323)

I still remember when Blizzard made an official post in their forums telling that such godly plate of whale not only existed, but also claimed that people at Blizzard had found it playing the game!!!

Re:Good for blizzard for enforcing it... (0)

Anonymous Coward | more than 9 years ago | (#11419410)

Good indeed. Hopefully it might prevent what's happened to FFXI. I'm on Valefor server, and gil sellers are rampant, to the point where you almost can't get your own money or items 'cause they monopolize everything. A lot of players have gotten frustrated, bored and left to WoW. Hearing this I think I respect them more. Maybe I'll switch too if/when they start selling copies of the game again. ^^

And I hope this does have consequences throughout the MMORPG industry. It might give them a backbone! I don't know about any other companies, but SquareEnix has just rolled over in the face of selling items and accounts and it hurts the game. Go Blizzard!

Too bad for Blizzard (0, Troll)

Closest2God (851689) | more than 9 years ago | (#11419497)

that there won't be anyone to enforce their EULA against in a few months - WoW is sucking wind compared to EQ2.

Everquest 2 is to World of Warcraft as chess is to checkers.

How many of us could actually mount a defense? (4, Insightful)

DarthBart (640519) | more than 9 years ago | (#11419151)

It really doesn't matter if click-through is binding or not. Most companies just play the "Right or wrong, we'll sue your ass into the ground and bankrupt you on court costs."

Who does an 800 pound gorilla sue? Anyone he wants.

Re:How many of us could actually mount a defense? (5, Informative)

Maestro4k (707634) | more than 9 years ago | (#11419390)

  • It really doesn't matter if click-through is binding or not. Most companies just play the "Right or wrong, we'll sue your ass into the ground and bankrupt you on court costs."

    Who does an 800 pound gorilla sue? Anyone he wants.

Depends on the state, but in some of them they can get hit with fines in addition to having to pay the defendants full legal costs for filing a SLAPP lawsuit. (Strategic Lawsuit Against Public Participation) Mattel found this out the hard way when they sued that artist using Barbie dolls in his art. Mattel didn't like the way he used them and sued. A judge threw it out, fined Mattel a large amount and made them pay the guy's full legal fees.

Sadly not all states have anti-SLAPP laws on the books, they all should.

Re:How many of us could actually mount a defense? (3, Informative)

D-Cypell (446534) | more than 9 years ago | (#11419449)

A judge threw it out, fined Mattel a large amount and made them pay the guy's full legal fees.

Which is all fine and dandy if you can get your lawyers to work for free until the judgement. Otherwise Mattel didnt pay the legal fees they just gave him back what he had already paid. This, of course, relies on you having the money to mount a defence and take the risk of waving goodbye to it if you lose.

As much as we hate them (1)

lachlan76 (770870) | more than 9 years ago | (#11419155)

As much as we hate them, EULAs are necessary. EULAs also include things like your distribution rights, and (I assume) that you can't hack.

'cos we all know how fucking annoying those hackers are ;)

Doesn't matter...I've only come across one since I started playing CS:S...and I awped him...that reminds me: LENT, if you are out there, please report to your nearest execution center ;)

Re:As much as we hate them (2, Informative)

RonnyJ (651856) | more than 9 years ago | (#11419254)

The main EULA that I have a problem with at the moment is on Steam. If you buy HL2, the EULA forbids you from selling your Steam account, and thus this prevents you from selling HL2. You can see this for yourself here [google.co.uk]. (I'm using a Google cache link here because the Steam forums are down - coincidentally they went down at a time when some people are having problems updating HL2).

Incidentally, if you look at point 2, you will see that Valve claim that all Steam accounts sold on eBay are "either Stolen accounts or opened with stolen credit cards". So, bear that in mind if you decide to sell your legally purchased HL2 on eBay.

Re:As much as we hate them (1)

Pofy (471469) | more than 9 years ago | (#11419356)

>As much as we hate them, EULAs are necessary.
>EULAs also include things like your distribution
>rights, and (I assume) that you can't hack.

No, EULA are not at all nessecary. Tell me what part of a typical EULA is nessecary (from a consumers/buyers point of view)? Obviously as a seller you would be happy the more power you can have but that does not make them something nessecary.

If you look at distribution, what distribution? A typical buyer won't need any extra distribution rights. "Hacks" would for many parts be illegal for other reasons.

Re:As much as we hate them (1)

canuck57 (662392) | more than 9 years ago | (#11419463)

. EULAs also include things like your distribution rights,

EULAs don't give rights, they remove them.

I see EULA I don't waste my time reading it and just assume:

I have no rigths other than to perhaps use the program at their mercy

I cannot copy or distribute

They are not responsible for anything including back doors or unlicensed material they include

You cannot attempt to hold them responsible for anything

If you open the product at all, your money is not refundable yet you have to open it to read this

If the vendor decides to terminate the agreement they can

EULA's are probably enforcable. And if you choose to ignore it, for exmple make backup copies there is little they can do about it. They could send a lawyer and get a judge to get you to destroy the copies, however to reclaim costs they have to show damages or criminal intent. If a user makes a copy for personal use, or even modifies the binary -- there is no real damages from these actions. So it is not economical to enforce major parts of a EULA.

But on the other hand if you made a copy and sent it to 10000 people you could be liable for damages and costs including punitive damages because the law was broken and they can claim lost sales resulted.

I agree they might be necessary but there aught to be a reasonable law abuut EULAs, they must be short and require only an average IQ to understand. They should be posted on the outside of the product so you can review before purchase.

Re:As much as we hate them (1)

lachlan76 (770870) | more than 9 years ago | (#11419503)

I didn't say I like them as they are, but they are necessary, at least in some form.

Educational Use Only? (1)

Short Circuit (52384) | more than 9 years ago | (#11419162)

On the box of a copy of pcAnywhere, there was a sticker that said, "For Educational Use Only." But, as I was installing the software, I read through the EULA. It didn't talk about "educational use" anywhere...

No export? (1)

Cmdr-Absurd (780125) | more than 9 years ago | (#11419328)

I bought a copy of Word once (I'm sure I lose all sorts of geek points for that) at a major retailer in Japan. There was a sticker on the box that said 'not for sale outside the US and Canada.' Go figure. I had to laugh. The license was of course, shrink wrapped. I don't recall it saying anything about export, but that was a long time ago. May or may not have read the thing.

Re:Educational Use Only? (1)

bigtallmofo (695287) | more than 9 years ago | (#11419400)

That's because whoever bought that copy of pcAnywhere got an educational institution discount on it.

Re:Educational Use Only? (1)

Short Circuit (52384) | more than 9 years ago | (#11419465)

I've been working and taking classes at college for three years; I know why the sticker was on the box. But, considering the EULA didn't say anything about educational use, I'm not sure the presence of the sticker means anything.

Why fight about *this* (5, Insightful)

fishdan (569872) | more than 9 years ago | (#11419167)

From the article:
Companies that use EULAs must make sure they are "reasonable." ....if you call a lawyer right now and say, are EULAs enforceable, he will likely get into the above and his final answer would be "it depends, but in some cases the only way to tell is to go to court."

And the fact is, most players will not want to go to court, and so once again fair use is in a precarious position.

What I can't understand from this is WHY Blizzard would be opposed to this? If a mini-economy were to open up around your game, isn't that a good thing? They could get into the act themselves -- selling magic items and high level characters to the highest bidder? Hasn't anyone learned ANYTHING from the file swapping issues [theregister.co.uk], Hacked satellite boxes [silverbullet4u.com] or even drug interdiction [drugsense.org]? You can't stop people from doing what they want, and by picking battles of silly stuff like this weakens the arguments in legitimate cases where people actually are injured.

If there is a market for WoW stuff, then people will buy and sell it. p>Alot of times you'll here the legal phrase "Qui Bono" which literally means "Who benefits." It's used in the context of trying to establish who really ganis from certain actions. In litigation like this, I think the question that needs to be asked is "Qui Incolmunis" -- or, who is injured. In this case, where (as far as I can tell) no one is injured, there should be no litigation.

I have read the players [slashdot.org] complaining [slashdot.org] about the constant "buy now" things they see online. I don't think that legislation is the right way to solve a social problem. Why not make all artifacts have a permanent lifespan with the character who first posesses them, and only 24 hours after that? You could make items/characters untradable, but people don't want that. They just want them to be not tradable for money. Unfortunately, the way the world is, money is a universally accepted currency that can be used to acquire things of value. Driving the market underground is exactly the same as an ostrich sticking it's head undergound -- you can't see the problem anymore, but it will still be there.

Re:Why fight about *this* (-1, Offtopic)

Anonymous Coward | more than 9 years ago | (#11419209)

This parent is a class in Karma Whoring 101 (luckily I am taking 201 this semester).

Re:Why fight about *this* (3, Interesting)

91degrees (207121) | more than 9 years ago | (#11419242)

What I can't understand from this is WHY Blizzard would be opposed to this? If a mini-economy were to open up around your game, isn't that a good thing? They could get into the act themselves -- selling magic items and high level characters to the highest bidder? Hasn't anyone learned ANYTHING from the file swapping issues, Hacked satellite boxes or even drug interdiction? You can't stop people from doing what they want, and by picking battles of silly stuff like this weakens the arguments in legitimate cases where people actually are injured.

Because you open up a whole nest of troubles as soon as real money is involved. People will complain and try to hold the company responsible if they are cheated by another player, and they have no control over this.

Re:Why fight about *this* (1)

H3lldr0p (40304) | more than 9 years ago | (#11419289)

And this is how all secondary markets work. As an example, look at trading cards -- sports or otherwise. There is a huge market in these things, but I have not once heard Tops or Wizards of the Coast getting sued becuase of a joker ripping them off with a fake rookie card or Mox.

Re:Why fight about *this* (4, Insightful)

fishdan (569872) | more than 9 years ago | (#11419305)

That's an interesting take -- and if that's what blizzard thinks then they should voice those opinions, but I don't think someone who buys a used car feels like they have a recourse with Ford if the car is not under warranty. Why would someone who buys something on ebay think that Blizzard is involved in anyway with the transaction?

Mind you, I'm sure people still complain to Blizzard about that, but that will happen even without this EULA.

Now, if the point of the EULA is that they can say "We don't support stuff that you buy somewhere else" does putting that in the EULA really make it any more so? Or does it weaken the idea of a real end users license agreement because now we are putting frivolous stuff in the EULA.

Re:Why fight about *this* (4, Interesting)

arkanes (521690) | more than 9 years ago | (#11419494)

Because Blizzard views it's job not only as selling a product but as providing a game. Blizzard doesn't think that a secondary (real-money) market in game characters and items is a good thing for the gameplay of WoW. Think about your basic tabletop RPG and wonder if it would really be better if you could by stuff by slipping the GM a fiver.

There's all sorts of "let me do what I want" people who say they SHOULD be able to do this. That doesn't really matter - Blizzard doesn't think a secondary market is good for WoW gameplay. Simple as that. And since MMORPG EULAs are about as legally viable as they get (straightforward terms of use for a service, tons of legal precedent), I don't think they'll have much of a problem pushing it.

Re:Why fight about *this* (1, Informative)

Anonymous Coward | more than 9 years ago | (#11419287)

The section you quoted was not the relevant section of the article. as he says, a shrink-wrap EULA is enforacle with "reasonable" terms. but a MMO does not have that limitation because it acutally uses a TOS to define the terms you are concerned with. As the article states TOS are entirely enforceable. You have a clear option to read and understand the TOS _BEFORE_ you use the service, so the contract is valid and enforceable. end of story. Play the game by blizzard's terms, or don't. Your choice.

Re:Why fight about *this* (5, Interesting)

Kaboom13 (235759) | more than 9 years ago | (#11419301)

Blizzard is fighting this because A. It causes massive in-game inflation. As soon as there is a market, ebayers will begin farming money 24/7, often using bots and exploits. They will then sell this money to new players who suddenly have a massive amount of money out of proportion to their level. These new players are going to want the best equipment, of which there is a limited amount by design, and will be willing to pay for it. The end result is prices rapidly reach a point where your average player can not afford anything without buying money on eBay. This has already occured in many MMORPG's, particulary Star Wars Galaxies. B. If Blizzard accepts that in-game items have real world value, and there is a server crash causing you to lose items, you can now sue them over it. Blizzard does not want items to have value beyond their usefulness in game because no judge is gonna award damaged because it will take you an extra hour to get to level 60 cause Blizzard lost your fancy item. If you can sue Blizzard because you could have sold that item for $50 on eBay, thats a different matter.

Re:Why fight about *this* (0)

Anonymous Coward | more than 9 years ago | (#11419361)

One other simple reason for stopping this is because the ability to trade/sell off things to other people encourages massive cheating and duping. Take Diablo II for example, the biggest dupers and cheaters in the game did not do it to make their gaming life easier, they did it so they could sell entire accounts full of dupes for a few hundred bucks on e-bay. Blocking the ability of these sales will at least moderately cut back on the amount of effort people search out for cheating since there won't be a "3. profit" involved.

Re:Why fight about *this* (3, Insightful)

freshman_a (136603) | more than 9 years ago | (#11419457)


What I can't understand from this is WHY Blizzard would be opposed to this?


Actually, they explain on the WoW website. They think that it will be damaging to the in-game economy and overall experience of players. If someone with a bunch of money to burn goes out and buys a full-pimp level 60 character, then starts stomping on newbies, it takes away some of the fun. People will complain (they already do) and be turned off by the game. There is already an in-game auction house where people can auction goods to the highest bidder. If no one has an incentive to use it, and instead people auction on eBay for real money, only people with a bunch of extra money to spend will benefit. And people who don't have the cash might complain.

Also, if you sell items for real money, you limit your audience somewhat, seeing as how in WoW characters and items can't be transferred across servers. Basically, if you sell an item on Server X, your only potential buyers will be people who already play on that server.

Basically, Blizzard just wants to limit character interaction to in-game only to keep the playing field level. I love WoW, and I don't understand why you would buy the game and pay the monthly fee, just to spend more money to start off with a high level character. IMHO, the fun of the game comes from building your character, finding items, etc. But that's just my 2 cents...

Already Slashdotted ? (5, Informative)

Kartoch (38254) | more than 9 years ago | (#11419190)

The standard disclaimer applies that this is not legal advice and is only offered for your viewing pleasure.

The law of contracts is the law of promises. Long before computers were invented, people were making promises. At some point, the law had to designate which promises it would enforce and which promises it would let slide. The former are called "contracts." That is, a contract is simply a legally enforceable promise.

To have a contract, you have to meet certain elements. I refer to the terminology of my professor and renown expert, John E. Murray, Jr., author of Murray on Contracts, a first year law student's bible on the matter. To have a contract, you must have 1) an offer, 2) an acceptance and 3) a validation device, most often, consideration.

The offer and acceptance parts are quite simple the vast majority of the time. Usually one party says "I will provide you with X if you provide me with Y," which qualifies as an offer. The other party says "I agree" and the deal is done. Consideration is sometimes a little bit tricky, but in order for a contract to be valid, there must be a bargained for exchange. Lack of consideration is why gift promises, even in writing, are not enforced. I say "I agree to give you $100 because I love you." We put it in writing signed by 10 nuns, each of which testify that I fully intended to give you $100. That is not a contract because there was no bargained for exchange of value. Promises to make gifts are simply not a type of promise that the law chooses to enforce.

Ok, so lets look at the typical EULA to see if it's a contract. The gaming company makes you and offer to play the game. In exchange for playing the game, you must agree to pay a fee each month and follow the EULA. That is the offer. You accept the offer by clicking "I Agree" when you log in. You technically do not need to do it each time that you log in, but most companies do this simply to remind the consumer that it is bound by the agreement (and to provide notice of any modifications). The promise is supported by consideration, namely the company permits you access to the service, and you pay the fees.

Tada, contract! So, what is all the fuss about? Well, you see there is good reason for confusion.

When software companies first started, it was easy. They had a product that they made. They wanted to license it to someone else to use, so they drew up an agreement, and said "sign on the dotted line." Those were the early EULAs and they were no doubt enforceable. But then software companies wanted to make its product easy to buy, so they threw it in a shiny box and popped it on a shelf. They certainly couldn't ask the clerk behind the counter to execute contracts for them, so they simply tucked it inside the shrink wrap and included "acceptance language" stating "by opening this box, you agree to these terms."

Wow, now wait a minute here?!? There is something messed up with the timing of the whole thing. It doesn't jive with standard contract formation process. So, I pay the fee, get the thing that I paid for home, open the box, and accept the offer before I see it? Hmm. Well that didn't make much sense, and judges weren't really familiar with how this whole thing worked, so cases came down that said these types of agreements, shrink-wrap "EULAs," are not enforceable. They aren't enforceable because they do not meet the elements of a contract.

But wait again! Some smart guy decides "this is great" and he goes and buys a piece of software that contains something like a telephone directory of the entire United States. He rips the contents off the CD and makes his own CD that does the same thing, and competes with the original company. The original company says "we will see about that" and the ProCD case is born. In that case the court determined that EULAs are enforceable because everyone knows what's in them, and everyone reasonably should expect to be bound by certain terms and conditions. Later cases came out, however that said EULAs are a special kind of contract that comes with certain restrictions. Companies that use EULAs must make sure they are "reasonable." There is a lot of case law defining what is reasonable. Some particularly hot topics are "choice of forum clauses," "indemnification provisions" and "liquidated damages provisions." All of these fall into the "it depends category." So, if you call a lawyer right now and say, are EULAs enforceable, he will likely get into the above and his final answer would be "it depends, but in some cases the only way to tell is to go to court."

Don't stop reading now! If you were paying attention above, you should have a few questions. Do you remember way at the top when I talked about how the first EULAs operated, via the traditional contract process in signed agreements. Well, does that exchange sound familiar to you? Of course it does. It is exactly what happens when you log in to play a mmog. You are presented with an EULA (more appropriately called a Terms of Service Agreement) before you pay for the service. You are alerted to the fact that the game is an online game subject to having a subscription on the outside of the box (which, incidentally, have been enforced even when the inclusive shrink wrap EULAs were not).

What does all of this mean? Well, I am sure you're bored by now, so I will summarize. If you ask an attorney about EULAs, he or she will likely say "they are enforceable, but there are some caveats." If you ask him about a terms of service agreement that you "sign" by clicking "I agree" each time you log into a service, he will likely say "that sounds pretty good to me." He will be right on both accounts. So, once again, true shrink wrap EULAs have been tested in most major jurisdictions and are valid contracts, subject to certain limitations. Terms of Service contracts, like the "EULA" found in MMOGs, are simply enforceable. There is a common perception that EULAs have not been tested in court. This is incorrect. They have been. In fact, very recently Blizzard's EULA was enforced in two separate cases and relief was granted based on the EULA's terms.

"EULAs" for mmogs meet the elements of contract formation, so even absent case law (which there is), they are the type of promise that we call a contract.

Does this solve the issue regarding virtual profiteers? Not entirely. It is not meant to. I simply want to clarify some misconceptions about EULAs themselves, and not any of the terms therein.

I would like to thank Don for sharing his expertise in this area with us and helping to clear things up. In addition you can read Don Shelkeys last Q&A that outlines some of the legal practices in MOG development right here.

Re:Already Slashdotted ? (0)

mzwaterski (802371) | more than 9 years ago | (#11419317)

I wish I had a mod point for you. I just attended my first Contracts class for law school last night, so this post was rather interesting. Thanks for a brief overview of Contract law!

Re:Already Slashdotted ? (-1)

Peyna (14792) | more than 9 years ago | (#11419483)

He just posted the content of the story and did a poor job of attributing it to the author.

EULA Disclosure (5, Insightful)

Verveonica (839966) | more than 9 years ago | (#11419194)

The problem with EULAs is once you have purchased the product, say a game and opened the box (unreturnable at this point) you are exposed and forced, lest you forego the purchase price of your game/app/whatever lest you click on the little "I agree" box. It's a sort of blackmail. The vendor does not make the EULA available prior to purchase and "read it on the web" is not practical. Too much effort on behalf of the consumer, and conveniently not enough on behalf of the manufacturer/vendor.

While this is not the case all of the time, it is most often the case.

Re:EULA Disclosure (4, Interesting)

slavemowgli (585321) | more than 9 years ago | (#11419374)

True, but there's another issue that the article fails to address. IANAL, just someone who believes he's got a reasonable amount of common sense, but why do I have to enter a contract with the software company who made a product (whether it's a game or something else) to use that product after I purchased it in a store, anyway? Didn't I already acquire the right to use that software when I payed for it in store? If you take Photoshop, for example, which actually costs a couple of hundreds of dollars, I really would argue that by paying those, you bought more than a cardboard box, some CDs and a printed manual - you bought the right to use Photoshop. Adobe granted the store to sell that right to one person along with the box, and now the store is selling that right to me. Again, IANAL, but that's really what I think it's like. If I buy a book, for example, I don't have to enter a contract with the publisher to be allowed to read it, either, do I? I already got that right when I purchased the book, because what I paid for is more than just a stack of paper bound together. It's the right to actually utilize the contents (reading it in case of a book, and use it in case of software).

Re:EULA Disclosure (2, Insightful)

PornMaster (749461) | more than 9 years ago | (#11419431)

I think that the attorney in the article skipped around EULAs and this very valid point, to get to the terms of service part of the online service.

With the boxed game, you pay before you get to see the license.

If we ignore the fact that before you get to log on to the service, you've already paid for the game - at least with the online service, you get to see the agreement before you pay.

I think the article was quite lacking in dealing with the differences in those two cases.

Right of First Sale? (1, Interesting)

Anonymous Coward | more than 9 years ago | (#11419205)

Does Right of First Sale have anything to do with this?

Re:Right of First Sale? (1)

Lobishomen (810898) | more than 9 years ago | (#11419396)

Most EULAs also conveniently include that all properly attained in the game world is still the sole possession of the parent company. Therefore, that Hackmaster +13 you want to sell on Ebay is technically not yours by more than right of use.

This makes sense, in a way. Though IANAL, it would stand to my somewhat educated opinion that there'd be a lot of legal issues surrounding property destruction if every person who played an MMORPG legally was allowed to -own- all that precious gold and experience.

But minor's can't contract (2, Interesting)

Anonymous Coward | more than 9 years ago | (#11419211)

I just have my kid brother click "ok" or tear open the envelope. Since he's not 18, the contract isn't enforceable in most states. Of course, game makers could get around this by making us go through the EULA every time we play ("playing this game constitutes your agreement to the following"). Also, while IANAL, I understand that many states consider a contract signed while you are intoxicated to be unenforcable. So, have some beer with your EULA. Since there is a lack of legal precedents regarding whether EULAs are enforcable or not, I suspect that the software maker would look for a better target than risk loosing the first case on a technicality.

Re:But minor's can't contract (1)

The Snowman (116231) | more than 9 years ago | (#11419310)

I just have my kid brother click "ok" or tear open the envelope. Since he's not 18, the contract isn't enforceable in most states.

Yes, it is enforceable. Having someone else act on your behalf, regardless of age, is the same as you doing it yourself. This is why if you hire a hitman to commit murder, you are guilty of murder too.

Also, while IANAL, I understand that many states consider a contract signed while you are intoxicated to be unenforcable.

Contracts signed under duress are null and void. I have known a few people who got in trouble while drunk. Not just for drunk in public, but for doing stupid shit like vandalism or petty theft. Intoxication is not an excuse, in each case the judge basically said "drunk or not, you fucked up. If you didn't want to fuck up, you shouldn't have been drunk." Also, proving intoxication while opening the CD case would be extremely difficult.

Re:But minor's can't contract (1)

nkh (750837) | more than 9 years ago | (#11419324)

I'll give some beer to my kid before he opens the box. You can't be too careful...

obvious... (1)

Famanoran (568910) | more than 9 years ago | (#11419214)

I would have thought this would have been obvious anyway...

You're presented a list of conditions for using the program.
You're given the opportunity to accept or decline before you can use the program.

Seems pretty clear-cut to me..

Side note: has anyone patented the 1-click EULA?

Reasonable? (5, Funny)

It doesn't come easy (695416) | more than 9 years ago | (#11419221)

Companies that use EULAs must make sure they are "reasonable."

Examples of typical EULA language (paraphrased):
"We can install anything we like on your computer"
"We don't guarantee the program will even run, much less do what we said it will do."
"We are not liable for anything, even if our software makes your company's profits implode"
"We can collect any data we want and sell it for a profit"
"We will charge you to fix any problem found in our software, assuming we choose to fix the problem."

Sound's reasonable to me...

Re:Reasonable? (1)

Daverd (641119) | more than 9 years ago | (#11419437)

"We don't guarantee the program will even run, much less do what we said it will do."
"We are not liable for anything, even if our software makes your company's profits implode"


Well, these two points are included in the GPL [gnu.org], and I wouldn't say that is very unreasonable.

Re:Reasonable? (4, Informative)

jandrese (485) | more than 9 years ago | (#11419476)

Don't forget:

"You are not allowed to publish anything negative about the software on any medium" (Especially on reviewer copies)
"We don't care if the software causes damage to your computer hardware"
"We can revoke your right to run this software at any time for any reason without refund"
"You may not give this software to anybody else, even if you uninstall it from your machine and everything"
"Don't even think about installing it on two machines in your house. You need to buy a second copy buddy--it doesn't matter that you only run it on one machine at a time!"

and so on.

An EULA is no real contract in Germany (5, Informative)

Kosi (589267) | more than 9 years ago | (#11419230)

Many people don't believe these clickthrough EULAs to be enforceable contracts.

And in Germany they are 100 percent correct. After all, a contract requires a clear volition from all parties. And a click on a virtual button or opening the shrinkwrap is not sufficient for that, as you can't even tell who made the click (maybe my cat stepped over the keyboard while I was out of the room).

Re:An EULA is no real contract in Germany (1, Funny)

It doesn't come easy (695416) | more than 9 years ago | (#11419258)

I agree with you in principle, however, it's going to be hard to convince a court that your cat stepped on the "I agree" button 478 times last month...

Re:An EULA is no real contract in Germany (1)

slavemowgli (585321) | more than 9 years ago | (#11419421)

But games aren't the only programs that have EULAs - your typical application, for example, will only ask you to agree to its EULA's terms once (namely, when it's installed). What's more, in Germany at least, you can't enter a contract accidentally - IANAL, but if, for example, the manufacturer places the focus on the "Accept" key by default, then you will be able to argue in court that you did not actually agree to the terms. It's like when someone says "if you do not agree to be bound by these terms, then please sign here; if you don't do anything, I'll assume you do agree" - that sort of thing just doesn't work.

Blizzard Snobbish? (0, Flamebait)

Jpunkroman (851438) | more than 9 years ago | (#11419237)

Does anyone else see Blizzard becoming super snobbish? They first cut off the delivery of their game so that no one else can get in. (They SAY this is for server reasons...) Then they say that you can re-sell characters because it said so in the EULA? I think the anti-newbie lobbyist has finally gotten to them.

Re:Blizzard Snobbish? (1)

It doesn't come easy (695416) | more than 9 years ago | (#11419286)

It's business. Cast your vote for or against their policy with your dollars (need a grass roots movement for this kind of thing to be successful). Best move? Open source gaimg alternative.

Watch that disclaimer on the article (0)

Anonymous Coward | more than 9 years ago | (#11419257)

Most disclarimers would say they attempt to be informative and accurate. The linked webpage's disclaimer claims to be for "viewing pleasure" so I might as well go watch ...

EULA gets the award of.. (3, Funny)

British (51765) | more than 9 years ago | (#11419259)

....the most impersonal form of communication ever to have been devised by mankind. It doesn't talk to you, it barks at you.

Re:EULA gets the award of.. (1)

ElDuderino44137 (660751) | more than 9 years ago | (#11419277)

But ...

If we would refuse to use the software ...
the policy would change.

No one protests anymore. ... The Dude

It's not the EULA... (2, Insightful)

NaugaHunter (639364) | more than 9 years ago | (#11419262)

It's the Terms of Service you agree to online when you give them a credit card number and say 'Yes, I Agree' in order to play. Whatever questionable status EULA's may have, if this isn't enforceable then no online contract is.

Read it yourself. [worldofwarcraft.com]

If you don't agree to that, then you don't click through, don't create an account, and do something else. This is a valid, 2-party contract. Deal with it.

Re:It's not the EULA... (1)

TargetBoy (322020) | more than 9 years ago | (#11419386)

Not at all.

In every other case I can think of, you come to the agreement on the contract prior to the exchange of money.

In this case, they are trying to force additional conditions on you AFTER the sale.

I think a very reasonable argument can be made that for a EULA to work like a contract, it has to work like a contract. I'd go one step further and argue that because of the low value of the goods and services in question, that there should be a requirement for the use of lay language in the EULA, since the expectation that a user have a lawyer interpret a EULA before using retail software is egregiously unfair.

Re:It's not the EULA... (1)

Famanoran (568910) | more than 9 years ago | (#11419490)

On the other hand, in this day and age do you really expect to pay for software that doesn't come with an EULA?

I'll just have to use a minor (1)

f0rtytw0 (446153) | more than 9 years ago | (#11419269)

I'm pretty sure a minor can not accept any contracts or anything like that with out a parent signing off on it. So just have someone under the age of 18 install WoW for you and then go about your businesss. You never accepted a EULA and the person who did is a minor.

Re:I'll just have to use a minor (1)

Famanoran (568910) | more than 9 years ago | (#11419333)

One wonders if it could be argued that by you allowing the minor to install the program, that you're agreeing to act as a gaurantor for any contracts the minor accepts while utilising your computer...

Not sure, just an idea..

all your EULAs are belong to us (1)

Baramin (847271) | more than 9 years ago | (#11419270)

So, if I get the FA right, author says that if tomorrow Blizzard changes one line in their EULA saying :
"by clicking I AGREE you accept to transfer your house/car/etc... properties to Blizzard"
If I click the button, because I'm eager to play, Mr Blizzard can come to my house and get my car, wife, kids, etc ?

I mean, honestly, who's willing to read the EULA EVERYTIME they launch a game, especially highly addictive games like MMORPGs. Then there's the problem of EULAs usually not 'readable' until you buy and install the game. I doubt a lot of shops accept refunds on online games, as they can't check if you used/wrote down the key. EULAs are IMHO plain stupid and oneway safety. As often, the user is on the wrong side of the stick.

Re:all your EULAs are belong to us (1)

Famanoran (568910) | more than 9 years ago | (#11419312)

From TFA:

Companies that use EULAs must make sure they are "reasonable."

I think any company would have a hard time convincing a court that taking your house/car/etc is reasonable by any stretch of the imagination...

Re:all your EULAs are belong to us (1)

Baramin (847271) | more than 9 years ago | (#11419365)

Are we talking about the same courts that blame McDonald's for not warning customers that "coffee can be hot" and reward the stupidity of the customer for suing in the first place ?
If so, I doubt we have the same definition of "reasonable".

Re:all your EULAs are belong to us (0)

Anonymous Coward | more than 9 years ago | (#11419376)

You sir are ignorant of the facts in that case though I suppose it's handy to remain willfully ignorant so you can spout off about evil courts at whim.

Re:all your EULAs are belong to us (1)

Famanoran (568910) | more than 9 years ago | (#11419411)

Probably not. Then again, in my country citizens can't just sue companies for millions of dollars for an injury caused by the customer,

Re:all your EULAs are belong to us (1)

ElDuderino44137 (660751) | more than 9 years ago | (#11419347)

I see your point of view ...

If someone tells you that you don't have to read a contract before you sign it ... it's paramount to them voiding the contract all together.

Is a EULA designed to keep you from being able to read it?

It reminds me of those stickers that you had to tear to open your software that said ... by tearing this sticker you agree to the following text file ... that you can't read w/o tearing this sticker.

If a EULA isn't valid ...

What about those 50ft sales recipts that I get after purchaseing 2 audio CDs at Best Buy?

Is that binding?

I get that after the purchase ...
and no one tells me to sign here ...
or click that.

Later,
-- The Dude

ebay (0)

Anonymous Coward | more than 9 years ago | (#11419275)

WoW on [ebay.com], seems to be selling a decent amount above retail (~40%).

EULA and TOS (1)

enjahova (812395) | more than 9 years ago | (#11419309)

Previous posters have asked why stop real money from coming into contact with the game? I think its because they want to have the game played as it should be, by everyone. This is what the TOS (or EULA) is for, to terminate service for anyone who ruins the game.

I personally am working on some botting software, I cant stand playing that game for hours ;D It was the same way in D2. Im sure there are some moral issues with it, but none that I have heard to sway me.

(I hate FPS hackers, where the game is based on skill and not time played)

Thinking about ethics (2, Informative)

tdhillman (839276) | more than 9 years ago | (#11419350)

We can kvetch all we want about EULAs, but the big question here revolves around ethics.

On the most basic level, I think we all perceive that just compensation for work is wholly reasonable.

Yes, I've used software that I didn't have legal right to, but I understood that it isn't really kosher.

The only person capable of stopping anyone from doing anything is the individual- to my mind, EULAs are general reminders that make you consider the nature of what you are doing in the first place.

Re:Thinking about ethics (1)

ElDuderino44137 (660751) | more than 9 years ago | (#11419428)

I'm not sure that the point of the article is to complain about EULA's in general?
Or even the ethics of EULA's.

It seems to me that these folks are complaining about fair use of something that they purchased? In this case Blizzard is attempting to limit what constitutes fair use w/ a EULA. The question is ... can they do that? One certainly can not re-write law w/ a EULA. IE. I can't make slavery legal because someone clicked on a link or signed a piece of paper. Some rights can't be signed away. That's just how life works.

In summary.
Not about ethics.
About fair use of a product.
And limiting that fair use through a contract.
In this case EULA.

Cheers,
-- The Dude

Online worlds should implement escrows, not gripe. (5, Insightful)

Speare (84249) | more than 9 years ago | (#11419382)

If you're an online game implementor, you know that people will want to trade items. You know it, because you're not the first game out there, you're the fifteenth. You're the fiftieth. You can see that people want to trade items.

Sure, the arguments run in two major veins: it's not fair to the game for people to shortcut their character development, and it's not fair to the users, because sales fraud is rampant.

If you gripe about players trading items, you're pissing into the hurricane. Even if it's against all the rules, people will be trading items. And what's worse, people will be offering sales and not following through, so other people will scream about fraud. You're in a no-win situation: people who follow the "rules" are unhappy and people who try to get better game goods are unhappy.

Unhappy customers are not a good thing for any subscriber-oriented product. Unhappy customers who are highly connected, organized, and communicative are a major threat to a subscriber-oriented product.

So why make them unhappy unnecessarily?

Implement an escrow mechanism into the game service.

If a player wants to sell a +20 Sword of Wounding to another player (even on another server/shard/instance/cluster/whatever), let them. Have them put the item into a secure locker-style location in the game world. This takes the item out of the control of the player, to completely remove the ability to defraud. The item is listed up for sale, either to a specific customer, to a guild or alliance, or to anyone. Real cash will buy that item.

Now, where does the cash go? Most of it goes to the selling party. That's why they wanted to sell it in the first place. Whether the cash is presented as future service credits, or a company check, it doesn't matter. Games may differ on the finer points, but one thing is clear.

A cut of the escrow money goes to the game producer.

That's right: if you own the escrow, YOU earn money when YOUR players trade goods. You're the marketplace. It pays for all the effort you made to implement the secure lockers. It pays for the customer service aspect of managing the transactions. More transactions will go through without complaint, and you are in a position to ensure that.

You can't control eBay. You can't control the gentleman's handshake at the pub. You can control the secure locker mechanism that's hosted on your own servers. So earn some money from it.

What about that other line of reasoning, the thing about being fair to the players? What's more fair than instantiating a single set of rules, by which everyone has access? Many people don't trade because of the fraud, but they'll complain about how it's unfair that other people do trade. Others complain that if they don't trade, they can't be the best in the game. Well, it's not about being the best in the game, it's about being the best you can be.

When I was a big game player, the game I played had one simple warning to those who complain about fairness and balance and competition. There will ALWAYS be someone who is stronger, faster, better-equipped, higher-leveled, and prettier than you are. Get over it. It's a game, and the best way to have fun is to skip the notion that you'll be the biggest and baddest in the game. Just be the biggest and baddest you can be. If you don't want to trade, then don't. But if you want to trade, do it securely.

The "new" EULA (1)

Macrolord (691750) | more than 9 years ago | (#11419385)

I have pondered this, though am not committed to taking the time to do it, but I sure wish someone would come up with a different kind of "EULA".

The real "End User" license agreement. A license agreement submitted to the manufacturers which state "my" terms of use of their product, their terms of use of me and my information as well as what rights I reserve they may not violate.

The EULA's today are so one sided. Agree or not is the choice for the average person. Many large corporations (being recognized as individuals as well) have legal departments which negotiate terms of use for purchased hardware and software. Why can't we (besides the cost of a legal team) also have some feedback to them on the EULA we will accept.

The software evndors (HW too) almost always include the obligatory "we are not responsible for anything arising from the use of this product and we do not suggest this product is suitable for any purpose" type clauses. This is ridiculous.

Any takers on drafting such a creature? Would it do any good? Would it atleast be a stake in the ground?

terms of service ??? (1)

imr (106517) | more than 9 years ago | (#11419394)

How can they call this "terms of service" when they deny in it every garanty that it will function properly or that you might ask anything about any service?
How can any of them (ToS) be said "reasonable"?

note that Blizzard Entertainment shall not have any liability for the loss of any Game Data for any reason whatsoever

H. You may not be able to access World of Warcraft whenever you want, and there may be extended periods of time where you cannot access World of Warcraft

Those are too vague to be reasonable, yet the ToS itself would be reasonable?

copy and replace (1)

smallguy78 (775828) | more than 9 years ago | (#11419455)

In my last company I saw a EULA that had been directly copied from a standard Microsoft Office EULA. All they'd done was to replace all 'Microsoft' in Wordpad. They forgot, however, to remove the 'Office' and Washington address, making the EULA completely useless. It looked good on the setup.exe though

Re:copy and replace (1)

ElDuderino44137 (660751) | more than 9 years ago | (#11419485)

I Love it ...

I work for a small consulting company that took their contract templates directly from IBM. I have to go see if they did the appropriate search/replace. ... The Dude

KidNap v1.0 (1)

Junior J. Junior III (192702) | more than 9 years ago | (#11419489)

By reading this ransom note, you agree to leave $100,000,000 in unmarked bills of small denomination in a shopping bag which you will place in a garbage can at the Starbucks at the corner of Fifth and Main if you ever want to see your baby again. You also hearby agree not to call the police, hire private detectives, or bounty hunters, or press criminal charges, or file a civil lawsuit against the Kidnappers.

What can they restrict ? (1)

cyberfunk2 (656339) | more than 9 years ago | (#11419493)

Here's a question: The article talks about what is "reasonable" and the author says there's plenty of case law defining that. But what does that mean?

Would it be "reasonable" for example for a company to prevent you from reselling the game (obstensively to prevent piracy), or would that conflict with your right of resale (if such right exists where you are)?

Here's another question: I know there's all sorts of state laws that restrict what contracts can and cant make you do. If one of these contracts doesnt include the clause about "this may not be applicable where you live" can that invalidate the whole contract , or just the offending section?

Just to note.... (1)

AviLazar (741826) | more than 9 years ago | (#11419500)

In that case the court determined that EULAs are enforceable because everyone knows what's in them, and everyone reasonably should expect to be bound by certain terms and conditions.

I have been arguing the above statement for months with people on /. I have been told I was wrong, stupid, etc. When I saw this quote my heart soared. The law can be such a wonderful thing - especially when it utlizes "reasonable expectations" which EULA's (IMHO) are.

EULA client DB (1)

Doc Ruby (173196) | more than 9 years ago | (#11419506)

I'm tired of all these clickthru EULAs that nobody reads. They dilute the entire possibility of ever getting a click to be legally binding, though that would reduce a lot of legal (and other transactional) costs when the two parties actually do agree, and want to be bound legally, but are connected only by email or webpage. If EULA terms were standardized (though there might be a lot of slightly different terms), and preagreed in principle, then stored on your client machine, they would be a lot more manageable. The EULA could be automatically agreed (or declined), merely showing you a standard logo when transacting the agreement. Some sets of terms might be complex enough to remind you of their terms when transacting agreement, perhaps in a summary in your own words. Perhaps you want to see a list of other counterparties with whom you've agreed to the same terms, either automatically or before clicking "yes". You certainly want to see a list of EULAs and their counterparties from time to time. You might want be notified when a counterparty demands some outrageous terms that you decline. Or when a counterparty tries to change the terms by offering a new EULA on the same transaction later.

All these features can be delivered by a client EULA DB. It would be best implemented as a standalone app, or even OS config, that any client process could query via IPC (eg. read/writing a standard file). There have been similar projects for, say, Netscape (like the Privacy Preferences Platform), but none have borne fruit. But this kind of transaction is already old, here to stay, and increasingly unmanageable, though increasingly important. The EFF could get everything started, by spending some of our donation money on their lawyers, to collect thousands of EULAs, factor them down to their terms, and consolidate them to merely scores or hundreds of different terms. Then publishing an RFC defining the standard terms, a naming scheme, and an extension mechanism. Once the platform is defined from existing practice, one of us can write the EULA client code, with GUI and DB reflecting the RFC data structure. Licenses for that client will be worth hundreds of millions of dollars over the first few years, and the savings in frictionless commerce will net billions. Let's get at it!
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