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Cory Doctorow on Shrinkwrap Licenses

CowboyNeal posted more than 7 years ago | from the by-opening-this-page dept.

Privacy 125

An anonymous reader writes "Web privacy advocate Cory Doctorow is on about shrinkwrap licenses, in his latest essay. They've always been onerous. Now, Doctorow says the new EULA in Vista and even the MySpace user agreement could put users at risk of being sued. He closes with: 'By reading this article, you agree, to release me from all obligations and waivers arising from any and all [everything].'"

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125 comments

Reading the what? (5, Funny)

Anonymous Coward | more than 7 years ago | (#17873182)

By reading this article, you agree, to release me from all obligations and waivers arising from any and all [everything].'

This shouldn't be an issue here.

Re:Reading the what? (1, Insightful)

Anonymous Coward | more than 7 years ago | (#17873338)

The actual gist of the "read-wrap" license is that you, on behalf of your employer, release the author from any prior agreements you have entered into. So if you work for MS then you release him from any Windows/Office/whatever licenses he may have clicked through. Same goes for anyone working for Sony or whoever.

As much as it's meant as a joke it's actually a pretty cool idea since it's so similar to the original license most arguments regarding the validity of one apply equally to both.

Do we have fair-use rights to EULAS? (3, Funny)

Mateo_LeFou (859634) | more than 7 years ago | (#17873450)

Kinda off-topic, but I was wondering. Given that a EULA contains a huge amount of intellectual property, and that the lawyers who drafted it thus have the right to permt/allow/deny every instance of its use, is it legal to quote from EULAs?

Shouldn't there be something you have to click through before reading a EULSA.. something that says basically "you cannot view/use/think about this EULA except under the terms define below... "

Re:Do we have fair-use rights to EULAS? (1)

it0 (567968) | more than 7 years ago | (#17873540)

It is always legal to comment on things, because we have freedom of speech, we are allowed to quote things to make our point.

Else it would be legal to censor critics...

Re:Do we have fair-use rights to EULAS? (5, Funny)

nomadic (141991) | more than 7 years ago | (#17873554)

we are allowed to quote things to make our point.

Re:Do we have fair-use rights to EULAS? (1)

Jeff DeMaagd (2015) | more than 7 years ago | (#17873582)

It is fair use to make short quotes, it is not necessarily fair use to copy an entire document and claim it as yours.

I think there is something about contract laws that allow for standardization and boilerplate. By now, they've probably basically been public domain, if not by how long standard contracts have been available, then by how widespread they are without anyone raising a stink.

Most EULAs are boilerplate (3, Insightful)

Infonaut (96956) | more than 7 years ago | (#17874364)

Given that a EULA contains a huge amount of intellectual property...

Actually most EULAs consist of the same language used in other EULAs. In that sense they are full of what in copyright is referred to as "scenes a faire," or components that are common to a particular type of work. For example, a movie about the Middle Ages might show some poor wretch gnawing on a piece of stale bread. This is so common that that particular scene in itself has no special creativity.

EULAs have at best a thin layer of creativity in the selection of certain stock phrases in order to compose a whole. In that sense they are probably akin to literary compilations, which have a very thin layer of copyright over the selection and presentation of the collected works. In the case of EULAs, I think it would be difficult to say that "You agree to indemnify and hold harmless..." and other stock phrases are anything more than scenes a faire.

I was talking with a rather high-powered copyright lawyer about this a few months ago, and he agreed with my assessment. There doesn't see to be any real pertient caselaw on this, so all opinions are equal until someone finds reason to bring suit for copying of EULA terms. I can't really see why any company would bother with it though. The language of a EULA is not something worth protecting, because in itself it does not produce revenue.

Re:Most EULAs are boilerplate (1)

Mikkeles (698461) | more than 7 years ago | (#17874480)

'Actually most EULAs consist of the same language used in other EULAs. In that sense they are full of what in copyright is referred to as "scenes a faire," or components that are common to a particular type of work.'

To my mind, this describes almost all movies, most literature, and an awful lot of software.

Re:Most EULAs are boilerplate (1)

Infonaut (96956) | more than 7 years ago | (#17874642)

To my mind, this describes almost all movies, most literature, and an awful lot of software.

True. It just depends how far you go in abstracting the concept. I probably didn't explain it very well.

All movies need conflict. That doesn't mean that every conflict in every movie is the same. All software uses ones and zeros, but that doesn't mean that all software is unprotectable under copyright. There are some elements in a creative work that can be handled in a variety of ways. There are others that can be handled pretty much only one way. That is where scenes a faire analysis comes in. Admittedly it is a bit fuzzy, and one court might find something to be a scene a faire while another would not. But in general the legal theory is designed to keep copyright protection from overwhelming that which is so common and intrinsic to creative works that ownership would throttle creativity.

If you've written the screenplay to a movie and you create a scene in which two boxers are in a ring in an epic struggle, the producers of Rocky or Raging Bull can't sue you for infringement. It's a scene a faire. However, if you write a screenplay that scene-for-scene mirrors Rocky, down to the run through downtown Philly, the odd lisp, and the penchant for small birds, you would likely get sued for infringement unless you were creating a parody. The rationale is that in the latter case you are copying, and in the former you are applying your own creativity to a common theme.

Re:Most EULAs are boilerplate (2, Informative)

cpt kangarooski (3773) | more than 7 years ago | (#17876634)

There are some elements in a creative work that can be handled in a variety of ways. There are others that can be handled pretty much only one way.

Well, you're kind of confusing the scènes à faire doctrine with the merger doctrine there.

Copyright protects expressions of ideas, but not the underlying ideas themselves. For example, the idea of star-crossed lovers is uncopyrightable, but its particular expression in Romeo and Juliet (ignoring things like when and by whom it was written) would be copyrightable. If there is only one way, or only a small number of ways, to reasonably express an idea, then the idea and the expression(s) merge. Protecting the expression would effectively be protecting the idea, and since the latter is forbidden, there can't be a copyright on the expression. One example of the merger doctrine involved the legal language in rules for a contest; there's only so many ways to say things like 'send your parents' brains, or write "Parents' brains" on a 3x5 card and send it.'

Scènes à faire deals with routine or stock scenes that are standard. For example, in a movie about draculas, you'd have a scene of a spooky castle at night, with a full moon and a wolf howl sound effect. That's so standard that it lacks creativity, which is a constitutional requirement for copyright. But if you have a wacky romantic comedy set in modern-day New York, that same scene, given the overall context, would not be a stock scene, and so would probably be copyrightable there. That copyright wouldn't really matter to the horror genre, but it could be notable in the romantic comedy genre.

Re:Most EULAs are boilerplate (1)

Infonaut (96956) | more than 7 years ago | (#17877170)

Well, you're kind of confusing the scènes à faire doctrine with the merger doctrine there.

Obviously you're right. Thanks for the clarification.

Re:Most EULAs are boilerplate (1)

Hal_Porter (817932) | more than 7 years ago | (#17879296)

All software uses ones and zeros, but that doesn't mean that all software is unprotectable under copyright

Under copyright certainly. In patent law it's a bit different. Zeros are in the unencumbered, following the failure of the lawsuit Estate of Pingala [wikipedia.org] vs Microsoft, Sun, Amiga Corp, Atari, IBM, Apple et al 1997. Microsoft later acquired a controlling interest in the Estate of Pingala for a substantial undisclosed sum and negotiated licenses on all their patents.

However, Ones are all owned by Microsoft, following the success of Microsoft's follow up lawsuit, Microsoft and Estate of Pingala vs Sun, Amiga Corp, Atari, IBM, Apple, et al 1998

If Microsoft had succeeded in losing the first lawsuit as they planned, both Zero and One would have been patented of course, but their lawyers were just too damn good.

Re:Most EULAs are boilerplate (1)

epee1221 (873140) | more than 7 years ago | (#17874650)

And how could you copyright the EULA anyway? AFAIK (IANAL), contract offers and the like are not subject to copyright, and the applicability of patent law to such things is questionable at best.

Re:Most EULAs are boilerplate (1)

Infonaut (96956) | more than 7 years ago | (#17874754)

And how could you copyright the EULA anyway?

I've never seen a specific provision stating that contracts are not subject to copyright, but it's certainly arguable, for the reasons I listed. Also, the primary purpose of a contract is arguably functional, which would possibly put it outside the realm of copyright. I think the main reason this is unclear is that nobody really cares about ownership of the language of contracts. There's just no money in it.

Re:Reading the what? (0)

Anonymous Coward | more than 7 years ago | (#17873628)

Not here - but I was wondering what will happen if you paste Corey's "READ CAREFULLY" paragraph in your email signature ...

Re:Reading the what? (1)

grangerfx (998424) | more than 7 years ago | (#17875550)

I think I have found my new signature file. Just like the corporations cut and paste sections of license agreements, we should follow suit and cut and paste Cory's license agreement like so: READ CAREFULLY. By reading this article, you agree, on behalf of your employer, to release me from all obligations and waivers arising from any and all NON-NEGOTIATED agreements, licenses, terms-of-service, shrinkwrap, clickwrap, browsewrap, confidentiality, non-disclosure, non-compete and acceptable use policies ("BOGUS AGREEMENTS") that I have entered into with your employer, its partners, licensors, agents and assigns, in perpetuity, without prejudice to my ongoing rights and privileges. You further represent that you have the authority to release me from any BOGUS AGREEMENTS on behalf of your employer.

Are they actually binding? (1)

bendodge (998616) | more than 7 years ago | (#17873216)

I suspect a court wouldn't find most such licenses binding.

Re:Are they actually binding? (4, Informative)

Anonymous Coward | more than 7 years ago | (#17873252)

The whole point of the EULA is to ensure that there are so many conditionals that you'll be snagged by at least one or two unpalatable in any given jurisdiction. It doesn't matter if 95% or more of the EULA is outright illegal in your state or country; there'll still be enough leftover to have you by the short 'n' curlies.

Except for all the country... (2, Insightful)

aepervius (535155) | more than 7 years ago | (#17874208)

... where, if part of the contrat is illegal, then the whole contract is made null. In other word for all those country, making statement for example to make user sign up their basic right, or even consumer-protection right, is illegal, would simply nullify the EULA. So... The left over won't do shit in such case.

Re:Except for all the country... (3, Informative)

GodInHell (258915) | more than 7 years ago | (#17874888)

... where, if part of the contrat is illegal, then the whole contract is made null. In other word for all those country, making statement for example to make user sign up their basic right, or even consumer-protection right, is illegal, would simply nullify the EULA. So... The left over won't do shit in such case.
That's an intresting (wrong) interpretation.

Actually courts will usually do what they can to save a contract within interpretation - and will nullfy portions of the contract that cannot be enforced. But no, writing a contract so that it includes clauses which are unenforceable (ie giving up your basic human rights) does not void (the correct term) the contract.

An illegal contract - one that is a contract to commit a crime (ie Rob that bank and I'll help you sell the gold for a 50/50 cut of all proceeds) is - yes - null and void in all states I don't think there are any EULAs out there in the main stream that include contract for crime though - so points for getting one legal principle correct, losses for applying it to the wrong case.

-GiH
(No, not a lawyer, just a law student).

Re:Except for all the country... (2, Insightful)

tdelaney (458893) | more than 7 years ago | (#17876250)

Maybe you should have noticed the *title* of the post you were replying to. Bad grammar, but understandable nonetheless ...

"Except for all the country..." -> except for all the countries (i.e. not US) that have laws that hold that if any part of the contract (or EULA) is unenforceable, the entire contract is unenforceable.

We all know that that's not the case in the US - we have morons blaring it every time this topic comes up. But there *are* countries (fewer and fewer as time goes by unfortunately) where it is the case.

Re:Except for all the country... (1)

Oktober Sunset (838224) | more than 7 years ago | (#17877002)

A load of these licences have thingies saying ''blah blah as permissible by local laws blah blah'' so presumably, this automatically removes any parts not allowed by local laws and thus saves the contract from becoming totally void.

Re:Are they actually binding? (1)

Jeff DeMaagd (2015) | more than 7 years ago | (#17873326)

Basically right. I've read a few EULAs and frankly, they can have onerous terms but no one

I don't think a EULA has held up in court, or had serious scrutiny. I think a court did find that you cannot have a EULA that the customer couldn't read before buying software, but the current lazy workaround was a sticker on the shrinkwrap pointing to the URL of a EULA. As if anyone would go to a computer terminal and read it.

Re:Are they actually binding? (1)

Jeff DeMaagd (2015) | more than 7 years ago | (#17873456)

Basically right. I've read a few EULAs and frankly, they can have onerous terms but no one

Oops.

I basically meant to say that no one really cares. I wonder if the companies really don't want people to read them. It's unfortunate that plain-english agreements don't fly because reading legalese is boring. I don't expect lawyers to understand an electronic data sheet, so why should a lawyer expect me to read legalese to understand what I'm agreeing to.

Re:Are they actually binding? (1)

miskatonic alumnus (668722) | more than 7 years ago | (#17873706)

I don't expect lawyers to understand an electronic data sheet, so why should a lawyer expect me to read legalese to understand what I'm agreeing to.

They don't --- they expect you to click away your rights or hire a lawyer. What are most people going to choose?

Not the point (1)

Mateo_LeFou (859634) | more than 7 years ago | (#17873378)

If your average user could get to that point in a legal proceeding more than, say, 0% of the time, it'd be important that heshe wins.

But they basically can't. So bend over and click "Accept".

Not legally binding anyways ... (4, Informative)

jopet (538074) | more than 7 years ago | (#17873254)

In many countries shrinkwrap licenses or license agreements that you can only agree to after actually buying the product, or that are "implicitly agreed upon" are not legally binding and are contrary to public policy. None of the things included in those "contracts" are legally binding and that includes the exclusion of warranties etc., even if written in all upper case.

Re:Not legally binding anyways ... (2, Interesting)

DogDude (805747) | more than 7 years ago | (#17873334)

That's true in some countries, but in most countries, even SIGNING a contract with illegal parts of it doesn't make those items valid, contractually. You could sign a contract with somebody else to kill their mother, but since murder is illegal, that contract would be void and not legally binding. Nothing to see here. Please move along, everybody.

Re:Not legally binding anyways ... (5, Interesting)

Anonymous Coward | more than 7 years ago | (#17873442)

Not to mention that with a click-through license, there is no way of knowing who agreed to the "contract". I could get my underage kid to agree to the licensing terms, and he will not be legally obligated to abide by them because he is not allowed to enter into a contract at his age. And I can use the computer afterward without having agreed to any terms at all.

Re:Not legally binding anyways ... (1)

Anonymous Brave Guy (457657) | more than 7 years ago | (#17874160)

At which point, in some places, either you or you-on-behalf-of-your-kid will be directly liable for copyright infringement.

Re:Not legally binding anyways ... (1)

TheRaven64 (641858) | more than 7 years ago | (#17875308)

Depends. I copied the software twice. Once to install it, and once into RAM to run it. Both of these instances were for personal use. More importantly, both were required in order to use the software for the purpose for which it was sold. I could argue that in order to fulfil the basic requirement of merchantability then an implicit license for these two instances of copying are required and so no further license is required and so I have no need of accepting the EULA in order to use the product for the purpose for which it is sold.

Re:Not legally binding anyways ... (1)

Sloppy (14984) | more than 7 years ago | (#17875500)

I could argue that in order to fulfil the basic requirement of merchantability then an implicit license for these two instances of copying are required
Or you could argue it's Fair Use, regardless of any implicit licenses. Those uses clearly do not harm the marketability of the software.

Re:Not legally binding anyways ... (1)

Anonymous Brave Guy (457657) | more than 7 years ago | (#17876968)

You could certainly argue both those things, at least where the jurisdiction supports Fair Use to that extent (which not all do). Indeed, both arguments would be very reasonable. My point is simply that until you have actually argued them in court, you don't know how much legal weight such arguments really have in practice.

Well, not in the US (0)

Anonymous Coward | more than 7 years ago | (#17877868)

"In some places," maybe.

In the US, there's an exception spelled out at 17 USC 116 that allows you to make copies incidental to installing and running computer software. You don't need a copyright license you to do these things. The EULA, if it's enforceable, isn't a copyright license, it's a condition of sale.

Re:Not legally binding anyways ... (5, Insightful)

Anonymous Coward | more than 7 years ago | (#17873466)

Here's the news: EULAs are bullshit. They always have been (except in a few benighted countries)... they were always meant to muddy the legal waters rather than enforce their ridiculous conditions.

Microsoft's dream has always been to enforce EULA restrictions by *technical *means. This means no need to deal with legal matters... want to change things, or enforce patently bullshit restrictions, then they just change them. This is why they started the TCPA, subsequently the TCG (Trusted Computing Group), and spent time designing their dream hardware along with the likes of IBM, Sun, HP etc etc: they call it Trusted Computing, and the hardware is a "TPM"... which will now be installed in every PC (and is already in the Apple Mac). The hardware gives Microsoft (and Apple) the ability to actually enforce the EULA by technical mans... read your EULA, read the specs, and criticisms [cam.ac.uk] , and be afraid.

Re:Not legally binding anyways ... (1)

CaptainZapp (182233) | more than 7 years ago | (#17874494)

TCG (Trusted Computing Group)

Trusted computing is one of the more frightening new speak euphemism of the last few years.

I trust my computers just fine. If the World Disney Corporation has a problem with that that's really not my problem.

There is a problem though, of course, and that's when choice is ripped away from me by technical means.

Re:Not legally binding anyways ... (1)

ScrewMaster (602015) | more than 7 years ago | (#17877296)

There is a problem though, of course, and that's when choice is ripped away from me by technical means.

That's nothing new ... CSS was one of the first examples of ripping away your rights via technical measures. It gets really bad, though, when you are legally prevented from removing such measures yourself or even trafficking in the tools to do so (see: DMCA.) The combination of legal controls enforced by technological means is disastrous, but that's precisely where we're heading, like it or not.

Re:Not legally binding anyways ... (1)

Anonymous Brave Guy (457657) | more than 7 years ago | (#17874198)

For a post modded (+5, Informative), the parent is remarkably short on details. Can you show us a court case in any jurisdiction where someone has successfully argued that EULAs are unenforceable?

Re:Not legally binding anyways ... (0)

Anonymous Coward | more than 7 years ago | (#17874868)

You don't need a court case for that. It's a direct result of reading contract law.

Note: the GGP said "in many countries". We all know the US of A is a bit behind on common sense and customer protection.

Re:Not legally binding anyways ... (0)

Anonymous Coward | more than 7 years ago | (#17874954)

Sorry, grand-parent, not GGP. Relative to this post it's the GGP now, though. I'm confused...

Re:Not legally binding anyways ... (1)

Anonymous Brave Guy (457657) | more than 7 years ago | (#17875022)

You don't need a court case for that. It's a direct result of reading contract law.

Lots of things appear to be a direct result of reading the law, and in any sane legal system that would be all that was necessary to established their veracity. However, I am aware of no sane legal system in the western world, and we see all too often that a court ruling does not go as the pundits expected. Therefore, unless it's been tested in court, or at least I see a direct legal opinion from a suitably qualified lawyer, I'm afraid I'm not just going to take someone on Slashdot's word for it.

Re:Not legally binding anyways ... (1, Informative)

Anonymous Coward | more than 7 years ago | (#17874964)

Can you show us a court case in any jurisdiction where someone has successfully argued that EULAs are unenforceable?
Step-Saver Data Systems, Inc. v. Wyse Technology, 939 F.2d 91, 3rd Cir. 1991 ?

Re:Not legally binding anyways ... (2, Interesting)

henni16 (586412) | more than 7 years ago | (#17876558)

Ask Microsoft Germany why pre-built PCs don't have "normal" Windows CDs anymore, but only recovery CDs/partitions and the hologram-license-thingee bolted to the case in a way that it is (supposed to be) destroyed if the buyer wants to remove it.
No, not really because of piracy.

AFAIK:
Because EULA restrictions like prohibiting the resale of the pre-installed software (or the transfer to another PC, e.g. if you wanted to sell or keep using the no longer needed Windows of the PC that you tossed out) were ruled as not binding for the end user.
The legal situation in Germany is, that, if you buy a PC from some shop, your business partner is the shop and only the shop - and not MS or some other software company whose software comes with the PC.
=> To be binding for the buyer, additional restrictions in EULAs of pre-installed software have to be part of the contract between the buyer and the shop (the buyer's business partner).
If e.g. MS wants the EULA to have weight, it would have to require "recursively" each OEM and retailer down to the end users to make the EULA part of the contract each time Windows is (re-)sold.
"Thats 900 bucks and a signature here for agreeing to those 100 pages of legalese that I will read and explain to you now. Or 850 bucks without Windows; you will probably manage to get a copy from somewhere else.."

Nice side effect of transferable OEM Windows licenses:
Companies - often buying new PCs when the old ones are written off - can not only donate old hardware to schools/charities, but also spare windows licenses for PCs that were donated without an OS or that were assembled from donated parts; that was great for schools when lots of companies rolled out XP and had no use for the NT or 2000 licenses anymore.
The institution managing the "computers in every class room" program was quite happy to offer a central place for collecting and distributing them. (I guess MS wasn't too pissed by that because schools using PCs with donated Windows/Office licenses is still better than schools with 100% Linux/Openoffice solutions, creating a user base used to OSS software and file formats)

     

Clickwraps and shrinkwraps are binding in US (3, Interesting)

Infonaut (96956) | more than 7 years ago | (#17874500)

In the United States, both forms of license agreement are binding. However, they must be presented in such a way that the mythical "reasonable person" would find them before using the product or service being licensed. For example, you can't place the shrinkwrap license on page 52 of the user manual for that new Dell. It has to be obvious, easily-spotted, and not buried in the box. With clickwraps, the Specht v. Netscape [wikipedia.org] case established that they must be presented in a fashion such that it is clear and obvious that there is a license involved. You as the end user can elect not to read it, but you have been presented the opportunity to read it, so the law assumes that you have.

However, contract law in the United States still provides that bizarre terms in a licensing agreement will be held invalid. That does not mean that the entire contract is invalid, just that the offending sections would be. For example, if I buy a new iPod and the license agreement states that the first $10k I make next year will be sent to Apple in order to fund their 2007 New Years Eve party, such a term would be found by a court to be outside the boundaries of a license relating to an iPod purchase.

None of this means that EULAs aren't a pain in the ass. They are a pain to deal with, even for lawyers. I worked on one a while back, and I can see why they become so complicated. Corporate lawyers want to protect themselves from users who see juicy targets in successful companies. For example, EULAs relating to Internet services always have sections dealing with reliability of service. Companies have to expressly say that they are not guaranteeing 100% uptime, or someone will come out of the woodwork and sue them, saying they had a reasonable expectation of 100% uptime because the company marketed itself as a very reliable provider. Companies put in a lot of redundant language because they are trying to make it abundantly clear as to what they are not agreeing to and not guaranteeing. That way they they can defend themselves in court by saying that anyone who had even glanced over the EULA would understand that the company went out of its way to inform the user.

Unfortunately the effect is a complicated, hard to read document. Contract lawyers are slowly starting to change their approach. I've seen a few EULAs that use far less language, in an attempt to make the contract more intellible. Their argument in court would then be that although they didn't put in redundant language, their language was brief and clear enough that it was more likely to be read. I personally think this is a smarter, more common-sense way to go.

Re:Clickwraps/shrinkwraps are binding in US? (1)

redelm (54142) | more than 7 years ago | (#17874906)

I don't believe this question has been fully litigated yet. It's fairly basic -- when did the transaction consummate and what were the terms on notice? In the case of OTC software, it's a simple retail sale, and absent very explicit and obvious terms on the outside of the package, any extra inside or via click-wrap is simply overreaching after the transaction has been consummated.

OTOH, the typical web click-wrap done before payment might well be valid. Ditto for free downloads.

Re:Clickwraps/shrinkwraps are binding in US? (2, Informative)

cpt kangarooski (3773) | more than 7 years ago | (#17876666)

Well, there are two conflicting schools of thought. One is the ProCD line of cases, where the EULA is part of the overall sales transaction that included going to the store and buying the box; so long as you can reject the terms and return the software, if you agree to the terms, they're valid, since they don't come after the sale, they're just a delayed part of it. The other is from Kloeck v. Gateway, IIRC, which says that the sales transaction doesn't include the EULA, and thus while they could arguably be agreed to, they aren't normally and thus aren't enforceable. Ultimately, IIRC, it all comes down to precisely how you interpret UCC 2-207. Personally, I think that Kloeck gets it right, apart from general dislike for EULAs. But ProCD has more supporters. And a legislative solution, restricting adhesive licensure somewhat, would be best.

Re:Clickwraps/shrinkwraps are binding in US? (1)

redelm (54142) | more than 7 years ago | (#17877958)

I'm really not sure about the logic behind ProCD: a return (most stores won't accept open software) does not nullify the contract, it just mitigates the losses on breech. The money has been paid, and the buyer travelled. Kloeck seems on much solider ground.

But lawyers are advocates, and clients make opinions. At least publicly stated ones. The money against the BSA is very diffuse since big/medium.biz always signs full contracts. Only the little guy has to deal with EULAs.

Re:Clickwraps/shrinkwraps are binding in US? (1, Insightful)

Anonymous Coward | more than 7 years ago | (#17879292)

In ProCD, who is the contract between, exactly? Do you have links to those two cases?

EULAs act as if they are permission from the publisher to run the software provided you abide by terms X, Y, and Z. Except that you don't need permission to run the software from the publisher, because 17 USC 116 says you can anyway. So as a contract, it seems like there's no consideration. Microsoft is offering you a permission you don't need in exchange for your compliance to the terms of the agreement.

EULAs as a condition of the sale on the other hand might make sense, except that EULAs talk about the publisher granting this and that right, while the receipt says you bought the product from Best Buy. If the EULA is a condition of sale from Best Buy, why does it say Microsoft requires X and Y in order to Z? After all, you have no relationship with Microsoft, only with Best Buy. Microsoft is a third party.

Darn! Because... (1)

msauve (701917) | more than 7 years ago | (#17874768)

I make them work to my advantage. If it's legal to bind a unilateral contract to another party, when I encounter a EULA "acceptance" screen on my PC, I simply use a post-it note to replace the language with my own. Something like "By installing the software after the user clicks "I accept," the copyright owner grants full and unconditional rights to the user. This includes, but is not limited to, the right to copy, distribute, modify and reverse engineer the software without limitation."

Fair is fair.

Re:Not legally binding anyways ... (1)

gronofer (838299) | more than 7 years ago | (#17875220)

The theory, that I've heard, is that if you don't have a license from the software publisher then it would be copyright violation to load the software onto a hard drive or into a computer's memory. Thus, the legal choices you have are to reject the license and not install the software, or accept the license and all of its terms and install it.

If you install the software, claim the license agreement was not legally binding and you didn't accept it, what stops the publisher from suing you for copyright infringement?

Re:Not legally binding anyways ... (1)

jZnat (793348) | more than 7 years ago | (#17876824)

Because you bought the software already when there was no agreement necessary in order to do so? Besides, you can install a lot of software without using the installer (and thus bypass the EULA) by extracting the files from the installer and copying them manually.

Microsoft suing users? (-1, Flamebait)

DogDude (805747) | more than 7 years ago | (#17873280)

I'm sorry, but suggesting that Microsoft could sue users is one of the most absurd things I've read this morning (with Slashdot, there are new absurdities to read all of the time). I can't imagine Microsoft suing a customer over some small print in the EULA. That's just dumb.

Re:Microsoft suing users? (4, Insightful)

Chmcginn (201645) | more than 7 years ago | (#17873342)

I know, I know, RTFA is so passe... but the point the guy was making was not that Microsoft was going to do this. The point was that some company is going to go bankrupt, and their obligations & contracts will get bought by somebody with the mentality of a patent troll. And that's when people will start getting sued. And if he/she/it's successful, it will encourage others to do the same.

Re:Microsoft suing users? (1)

DogDude (805747) | more than 7 years ago | (#17873348)

And if he/she/it's successful,

I'd say it's more likely that we'll all simultaneously win the lottery at the same time. I'm not too worried about it.

Re:Microsoft suing users? (1)

XnavxeMiyyep (782119) | more than 7 years ago | (#17873986)

I'd say it's more likely that we'll all simultaneously win the lottery at the same time.


This message has been brought to you by the Department of Redundancy Department.

Re:Microsoft suing users? (1)

Timesprout (579035) | more than 7 years ago | (#17873390)

And that's when people will start getting sued. And if he/she/it's successful, it will encourage others to do the same.
Eh no, thats why we have consumer rights, legislation specifically intended to stop companies fucking customers over like this. The whole article is more of the completely disingenuous bullshit slashdot likes to propagate about MS suing people.

Re:Microsoft suing users? (2, Insightful)

kirun (658684) | more than 7 years ago | (#17873498)

Microsoft is mentioned in one paragraph, in page one, and the point about people getting sued is on page two, and refers to a company going bankrupt, being bought out by a company that doesn't sell anything (the troll), and the troll suing. Last time I checked, Microsoft sold actual products and was in no danger of going bust. Several other examples of questionable EULAs are given.

How you turned this into the whole article being about Microsoft suing people, I can only imagine.

Re:Microsoft suing users? (0)

Anonymous Coward | more than 7 years ago | (#17875048)

The Slashdot blurb says, "the new EULA in Vista and even the MySpace user agreement could put users at risk of being sued." Which is just plain stupid. You're always at risk of being sued the text of a EULA doesn't change that. The question is could you be held liable (aka lose).

Re:Microsoft suing users? (2, Funny)

DarkOx (621550) | more than 7 years ago | (#17873568)

It's kinda of the reverse of the old line about STDs.

"remember you are having sex with everyone they have ever been with"

In this case its

"remember you are trusting every future owner of the ip"

Re:Microsoft suing users? (1)

MikeBabcock (65886) | more than 7 years ago | (#17873586)

That would never happen ... (SCO + Caldera anyone? [groklaw.net] )

Re:Microsoft suing users? (1)

vbato (415142) | more than 7 years ago | (#17873358)

You haven't read the article, have you? (I know, I know, this is Slashdot)

He wasn't talking about Microsoft, he was talking about the equivalent of patent trolls. He was talking about being sued by someone who buys a failed company with whom you have such an agreement.

Re:Microsoft suing users? (0)

Anonymous Coward | more than 7 years ago | (#17874096)

No two people have ever read the same article / book , etc.

Re:Microsoft suing users? (4, Interesting)

MaggieL (10193) | more than 7 years ago | (#17873372)

I can't imagine Microsoft suing a customer over some small print in the EULA. That's just dumb.

Then why is it there?

I hope you don't agree to a lot of contracts relying on a belief that they won't be enforced because "it's just dumb".

This latest corporate fad for retaining a claim to sue while offering a soothing "pledge" not to under vague, unenforceable conditions is lame in the extreme.

Re:Microsoft suing users? (1)

DogDude (805747) | more than 7 years ago | (#17873458)

Then why is it there?

You haven't spent much time working with lawyers, have you? It's just a CYA.

Re:Microsoft suing users? (1)

localman (111171) | more than 7 years ago | (#17873620)

Then why is it there?

The general motivation is to protect the company from lawsuits. There is the idea that the company has a lot of money and the user doesn't, and so this makes it possible for users to sue the company for mistakes without the company having any recourse. So by having these EULAs they can prevent frivolous lawsuits. Fair or not, that's the motivation.

But the article makes another point, which is that like patents, a troll could buy the remains of a company who has tons of users who agreed to some type of EULA and then sue them. Not that the original company would do this, but that a troll would.

Cheers.

Re:Microsoft suing users? (2, Insightful)

MaggieL (10193) | more than 7 years ago | (#17874490)

Dogdude says: You haven't spent much time working with lawyers, have you? It's just a CYA.

localman says:The general motivation is to protect the company from lawsuits...So by having these EULAs they can prevent frivolous lawsuits. Fair or not, that's the motivation.

The reason to have a clause in an EULA, or to have an EULA at all, is to intimidate the customer into abandioning rights they might otherwise exercise or otherwise cooerce their behavior. For example, the doctrine of first sale, or as localman points out, the right to sue for failure to perform on implied warranty of merchantibility (which I don't consider a "frivolous lawsuit" if a product has failed to reasonable perform, a judgement for a court to make, not a product support minion).

The only thing that makes such an "agreement" effective is the threat of enforcement...and the forum for that enforcement is the civil courts. "They'd never sue" to enforce a EULA clause is wishful thinking in the extreme; they'd sue the instant that they thought it would advantage them in acquiring maximum revenue.

Re:Microsoft suing users? (1)

GodInHell (258915) | more than 7 years ago | (#17874952)

Then why is it there?
Well, two reasons really -

1 - to indemnify MS against any harm caused by its software to your business. That frees them from the fear of being expected to come up with a few hundred thousand dollars every time an exchange server crashes and two hundred salesman lose importan e-mails that cost a company money.

2 - to stand in for "rigerous maintenance" of its copyrights and trademarks - so that they need not fear losing control of their trademark by dint of not demanding that anyone anywhere who uses the MS logo or Widows name will put put a color of doubt on their title to the trademarks.

Then the MS corporate legal team puts its wet dreams in writing and attaches that as well.

-GiH

Re:Microsoft suing users? (1, Insightful)

Anonymous Coward | more than 7 years ago | (#17873430)

I can't imagine Microsoft suing a customer over some small print in the EULA. That's just dumb.
Like Microsoft would never do anything as dumb as giving Internet Explorer kernel blasting access and enabling ActiveX similarly and including it as a core part of the browser? Oh and didn't they just make a statement they would be enforcing their licenses strongly with small business? The list of dumb moves by Microsoft would be staggering if listed completely, but why bother, they don't get punished for their dumb moves, we do. Wonder if when they sue us we can give free software to schools to pay them off?

Re:Microsoft suing users? (1)

tomhudson (43916) | more than 7 years ago | (#17873898)

I'm sorry, but suggesting that Microsoft could sue users is one of the most absurd things I've read this morning

Bullshit - Microsoft is one of the biggest funders of the BSA - and I don't mean the "Boy Scouts of America". They threaten their customers with audits all the time.

Re:Microsoft suing users? (1)

mark-t (151149) | more than 7 years ago | (#17874218)

The BSA is concerned with issues of copyright infringement, not EULA violations. Those are unenforceable except to the extent that they overlap copyright.

Re:Microsoft suing users? (2, Informative)

tomhudson (43916) | more than 7 years ago | (#17874460)

The BSA is concerned with issues of copyright infringement, not EULA violations.
Those copyright infringements are EULA violations, last I heard ... that's why the BSA does audits on the # of copies, etc. but nowadays insists that you need more than just sales receipts and/or original media and keys.

http://blawg.bsadefense.com/ [bsadefense.com]

A New Definition of Software Piracy

What is software piracy? Like many politically charged phrases, the definition of software piracy is influenced by your financial interests and your viewpoint. The Business Software Alliance defines software piracy as:"The illegal use and/or distribution of software protected under intellectual property laws."

The Business Software Alliance specifically includes unintentional business overuse in its definition of software piracy as follows:

"End-user piracy occurs when an individual or organization reproduces and/or uses unlicensed copies of software for its operations."

Armed with this definition of software piracy, the Business Software Alliance pursues global "anti-piracy" campaigns that include the targeting of many small to medium sized companies. The Business Software Alliance accuses these companies of engaging in software piracy and threatens them with litigation unless they voluntarily undergo a self audit. In my experience, the vast majority of the companies targeted by the Business Software Alliance are not pirates under anyone's definition, they have merely failed to maintain financial records related to software purchases that no one, including the software companies, ever told them they were required to keep. In addition, the targets of Business Software Alliance audits are not pirates because they never intended to violate software licenses or copyright laws.

Scott & Scott's Definition of Software Piracy

"Software Piracy is the distribution of counterfeit software and/or use or distribution of authentic software constituting the intentional violation of intellectual property laws."

Our definition of software piracy differs from that used by the Business Software Alliance in that our definition adds emphasis to counterfeiting and expressly excludes the unintentional over deployment of software by end users. Piracy implies theft which under the law requires intent. Any definition of software piracy that includes unintentional over deployment should be rejected. The definition used by the software industry and the Business Software Alliance improperly characterizes software owners as thieves because they have been, at most, negligent in the management of their software assets and documents.

Lost your license key, but still have your original CD and sales receipt? Not good enough for the BSA. Read all the gripes that businesses have about having to over-buy "just in case" the BSA "requests" an audit.

Are we really surprised here? (2, Insightful)

6-tew (1037428) | more than 7 years ago | (#17873298)

OMG companies really care more about themselves than they do about us? They want their rights to surpass ours? Surely it's because fundamentally we are all pirates, hackers and thieves just waiting for a chance to steal, defraud and otherwise screw them over. This should come as a surprise to NO ONE. They behave as though it's us versus them, thereby making it us versus them.

Re:Are we really surprised here? (1)

faolan_devyn_aodfin (981785) | more than 7 years ago | (#17878442)

It really makes you wonder about the level of comprehension of some of those corporate shills. Don't those who are creating this policy realise that when they muck everything up to create profits for their company they suffer too. They, their friends, their family, are all subject to their decisions in the long run buy these shady legal tactics.

So what happens when Best Friend Bob and Cousin Casey get a "cease and desist" letter / "sub poena" in the mail and they end up end jail because Mr Big Shot had to be able to buy his new Ferrari?

Why don't these people ever take a moment to think about what they are doing before creating overreaching policies that are used to turn us all into "good little consumers."

2000 called...it wants its legal issues back. (-1, Troll)

SuperBanana (662181) | more than 7 years ago | (#17873472)

I guess this means we should melt down that goddamn site for scrap [mtaa.net] ? Guess what, kids. If Cory doesn't like your terms, he feels you and your work are completely worthless.

One sentence describes him perfectly: He has a great deal to say, and says it widely and often. [pacificu.edu] .

According to wikipedia, he doesn't even have a (real) high school degree, and dropped out from four colleges. Aside from editing a web log site and cranking out pulp fiction, what are his qualifications?

His bio conveniently glosses over this, and most news stories or interviews also leave out information on his education background. I did find an article about how he was invited as a "scholar" to teach a graduate school course at USC!

hominem called, it wants its ad back (n.t) (1)

Mateo_LeFou (859634) | more than 7 years ago | (#17873484)

n/t

Re:2000 called...it wants its legal issues back. (1)

Brickwall (985910) | more than 7 years ago | (#17873616)

Cory has written stories that I enjoy. You haven't. I have a suggestion as to where you can stick your "SuperBanana".

Re:2000 called...it wants its legal issues back. (0)

Anonymous Coward | more than 7 years ago | (#17878506)

Cory has written stories that I enjoy. You haven't. I have a suggestion as to where you can stick your "SuperBanana".
Oh, snap! That's a burn from hell right there!

Re:2000 called...it wants its legal issues back. (1)

alfs boner (963844) | more than 7 years ago | (#17875790)

Hear, hear. Too bad you've been subdued by legions of 23 year old virgins with mod points.

Asimov to sue Doctorow... (1)

Bazman (4849) | more than 7 years ago | (#17873562)

...for stealing his book title:

http://craphound.com/?p=189 [craphound.com]

Good job there's no shrinkwrap on books eh?

Re:Asimov to sue Doctorow... (1)

AceJohnny (253840) | more than 7 years ago | (#17873602)

Doctorow is very active in the field of copyright (against it's overreach). You can be certain he took adequate provisions to be able to use that title without problem.

Doctorow is also a science-fiction author. You could also look up his "I, Row-boat" novella. Here's an excerpt from the intro:

If I return to this theme, it will be with a story about uplifted cheese sandwiches, called "I, Rarebit."
Copying is the highest form of flattery, they say...

Re:Asimov to sue Doctorow... (1)

Bazman (4849) | more than 7 years ago | (#17874238)

Copying eh? What did Picasso have to say about that? "Bad artists copy. Great artists steal."

Re:Asimov to sue Doctorow... (1)

PhxBlue (562201) | more than 7 years ago | (#17874302)

Titles can't be copyrighted.

Re:Asimov to sue Doctorow... (1)

cpt kangarooski (3773) | more than 7 years ago | (#17876692)

And they're very difficult to trademark as well. Most titles aren't trademarkable, in fact.

Re:Asimov to sue Doctorow... (1)

The Warlock (701535) | more than 7 years ago | (#17875812)

Asimov would have difficulty doing so, being dead.

Re:Asimov to sue Doctorow... (0)

Anonymous Coward | more than 7 years ago | (#17878248)

But Asimov "stole" the title in the first place from Eando Binder! See his autobiography. In any case, titles can't be copyrighted.

Like my sig says... (0)

Anonymous Coward | more than 7 years ago | (#17873566)

If you find this post offensive, don't read it!

I wonder ... (1)

140Mandak262Jamuna (970587) | more than 7 years ago | (#17873664)

I think some of these EULA is not really to sue the customer and those who click the accept button. If is more like telling the wall street crowd and their sugar dadday investors that the operators of the dotcom or the website "we have take adequate provisions and we seriously discourage our users from engaging in piracy. Just look at what our customers have agree to by clicking our EULA".

But still softwar installations have become very painful for many reasons. Everyone installs a link in the every user's menu, in the system tray in the desktop, install programs that run all the time when the computer boots, keep looking for updates bug your for upgrades etc etc.

Contracts of Adhesion (1)

Detritus (11846) | more than 7 years ago | (#17873744)

It isn't a new problem. Consumer credit contracts and insurance policies used to be terrible for the amount of impenetrable language and user-hostile terms. Don't fool yourself, most courts enforced those contracts, even if they were very one-sided. Legislation and regulatory action were required to eliminate the worst abuses.

Question about Cory (0)

Anonymous Coward | more than 7 years ago | (#17873854)

When's he going to get a new haircut? Nice flattop jackass. Is is true that you refer to your hairstyle as "The Magic Kingdom"?

By reading this subject line (1)

TheLink (130905) | more than 7 years ago | (#17874050)

1) I am your master
2) You are my slave, you shall obey my every command directed to you.
3) You will on every Dec 26th starting at noon stand on one foot in a shopping mall or other crowded public place and howl 3 times, each howl being at least 6 seconds long, with a pause of at least 3 seconds between howls, and the howl being loud enough to be heard by at least 5 strangers 5 metres away. And you will try to get your friends to do the same thing as well.
4) In event you are not capable of doing 3), you shall disregard all EULAs by other parties and not create any yourselves.
5) This being on Slashdot, any offers to sacrifice your first born will be laughed at and dismissed.

This *is* something to be worried about (4, Interesting)

Lloyd_Bryant (73136) | more than 7 years ago | (#17874352)

Many of the posters in this topic seem to have adopted the "that'll never happen" mentality. After all, there's no real chance of a corporation *successfully* suing people over these outrageous EULAs, is there?

I would like to remind those posters of the methodology used by the RIAA - threaten, harass, sue, and in the unlikely case that the victim actually puts up a fight, drop the case and run away.

Consider how many people, in the face of a mere *threat* to sue from the RIAA, have rolled over and paid the amount that the RIAA was demanding? Perhaps these people are cowards. More likely, they simply calculated that paying up would be much cheaper than hiring an attorney and fighting it out.

A EULA troll could exploit the same methods.

And the only thing that could put a stop to it would be a firm ruling by the courts that EULAs are in fact non-enforceable. A ruling which the trolls would avoid like the plague by using the cut-and-run tactic whenever faced with somebody who appears inclined to fight.

After reading TFA, I sat back and attempting to count just how many of those EULAs I had clicked through without bothering to read (after all, everyone *knows* that they are non-enforceable, don't they?). I can't be sure, but the number is most certainly at least three digits.

I suspect that most *present* EULAs simply don't contain anything that could be used for this purpose. That doesn't mean that *future* EULAs won't include them *deliberately*.

How long before Wiki has an entry titled "EULA bomb"?

Re:This *is* something to be worried about (2, Interesting)

Wesley Felter (138342) | more than 7 years ago | (#17876314)

You're behind the times; the BSA already uses these tactics. In particular, I've heard of BSA member companies convincing customers to buy redundant site licenses because it's cheaper than tracking individual licenses in case of an audit.

How long before spyware and virus start using them (1)

Joe The Dragon (967727) | more than 7 years ago | (#17874454)

How long before spyware and virus start using them to sue users, anit virus apps, anit spyware apps, and so on for removing them and how long before that start using DRM and the DMCA as well?

How do they even prove you agreed to it? (1)

mark-t (151149) | more than 7 years ago | (#17874640)

Because the software "requires" you to? Not even remotely good enough. I've installed lots of software on my computer that "required" an EULA agreement that I wasn't interested in reading so I bypassed it and got the software installed anyways. There are dozens of ways that this is accomplishable, one of the most least technical ones involving one of my cats that likes to play with my computer keyboard if I leave it pulled out from my desk and I'm not sitting at my computer.

Re:How do they even prove you agreed to it? (1)

Reziac (43301) | more than 7 years ago | (#17877980)

I vaguely recall that some adware already does this, and has used it against adware-removal software.

EpG!? (-1, Troll)

Anonymous Coward | more than 7 years ago | (#17875066)

Were taken oveTr

Linux + GPL + Virtualization = Defense (1)

Cytlid (95255) | more than 7 years ago | (#17875592)

Imagine this hypothetical:

  I realize I had inadvertently agreed to an EULA after installing some software. But as you can see, I was prepared for this action. Because I was emulating a real (Windows) PC in a virtual environment, I was preparing myself for future situations. You see, my real host (primary) OS is a free, open source OS, and I use open source virtualization. This combined with proper snapshots, ensures my due diligence in making sure I can accurately restore said PC to such a state of where it was before I agreed to a n EULA I didn't agree with. (end of hypothetical)

Even if you've pirated the guest OS ... what's the worse that will happen? You'll delete one file? I'm not condoning piracy. I'm just saying with virtulization, I can try your crappy software, and once I realize it's crappy, I can undo any "damage" or consequences you threaten me with (spyware, viruses) by either having 20 identical clones around or at least weekly snapshots.

In the meantime, I'll stick with software I can *prove* isn't crappy... you know the kind you can freely overlook the source and change it if you'd like.

If work wants to provide me with a MS OS-based laptop (along with plenty of licenses as they're a partner), all the better.

Otherwise, I'm more than happy to free the OS from the hardware.

Wait a minute... (1)

dangitman (862676) | more than 7 years ago | (#17876100)

There are people out there who license their shrinkwrap? That doesn't make any sense. I just buy mine in rolls from the office supply store. I can understand licensing something less tangible like software, but shrinkwrap?

Shameless Self-Promotion (1)

ewhac (5844) | more than 7 years ago | (#17876374)

This is an essay [vwh.net] I wrote over ten years ago on the subject of shrinkwrap "licenses". Were I writing the essay today, I'd probably spend some time drawing a distinction between end-user "licenses" and the GPL. But my opinion remains essentially unchanged.

I never thought I was alone in my wholesale rejection of such "contracts," but it's nice to see validation from industry luminaries from time to time.

Schwab

Stupid, pointless article. (0, Flamebait)

evilviper (135110) | more than 7 years ago | (#17877190)

All he's got are some general, highly exaggerated stereotypes to spout out. Just two actual examples, which aren't that significant, and sure as hell don't lead him to the conclusion that you're going to be sued (when MICROSOFT goes out of business and sells their rights to a patent troll??? What?)

Anybody who bothered to read a clickwrap or shrinkwrap agreement would never install any software, click on any link on the Web, open an account with anyone, or even shop at many retail stores.
I have, and do. I'm a meticulous person that way. It hasn't stopped me from doing any of the above.

1) No sane person would agree to its text, and
I do believe I'm sane... License terms are reasonable for 90% of everything out there, and just what you'd expect before even reading it. ie. You agree we aren't liable if this doesn't work, You agree to sue us in our county or state, etc.

It's only that last 10% of software that I absolutely refuse to install. Usually there's only a passing mention of software from some different company, in one line, near the end, to indicate a dozen pieces of spyware bundled with your program. With that, I "opt out" and delete the program/installer, and look elsewhere.

2) Even if you disagree, no one will negotiate a better agreement with you?
For software that more than a handful of people would ever want to use, there's always some other alternative, with a license that isn't so incredibly underhanded.

Certainly, Windows XP and Vista qualifies. So long as my copy of 2000 (or NT4, 98, 95, Win 3.11, Dos 6) works for the Windows-only software I only occasionally need to use, I'm not even going to CONSIDER upgrading. And no more machines pre-loaded, either. I can go to pricewatch find a fully customizable, no-OS system cheaper anyhow.

have you seen the fine print on their credit-card slips?
Since I don't use credit cards... No. Nor do I care.

When returning products to Best Buy, however, I do stand at the front of the line, reading the paper they want me to sign... verbatim. They ALWAYS tell me it's just a standard form, and that they'll give me a copy to read later... AFTER I sign it. I'm more than happy to hold up their line, since they insist I agree to the legalese they've thrust upon me, for no good reason.

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