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UK Report Slams EULAs

kdawson posted more than 6 years ago | from the signing-it-away dept.

Software 239

draevil writes "Britain's National Consumer Council has completed an investigation into the practice of software End User License Agreements(EULAs) with the conclusion that many consumers are signing away their legal rights and agreeing to unfair terms, which they could never have scrutinized before purchase. The report also acknowledges that even if the EULA were available prior to purchase, it would be unreasonable to expect an average consumer to understand the terms to which they were agreeing. Here are the full report (PDF) and a summary." The NCC recommends that the European Commission bring softwre licenses under the same consumer protections that apply to other products in the EU.

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At Last! (4, Funny)

Wandering Wombat (531833) | more than 6 years ago | (#22478246)

Someone in power has been soundly beaten with the Common Sense Foam Cluebat. (Copyright, All Rights Reserved)

I am not handsome enough to be a lawyer (4, Interesting)

Stanistani (808333) | more than 6 years ago | (#22478324)

But I always felt that EULAs, especially 'shrinkwrap' ones, never met the old tests for a contract:
- a 'meeting of the minds'
- agreement in exchange for 'a valuable consideration received'

Re:I am not handsome enough to be a lawyer (5, Insightful)

Sorthum (123064) | more than 6 years ago | (#22478442)

And one more that you neglected:

The option to back out. By the time you have the EULA on your screen, you've already paid for the software. "Hell no" isn't a viable option; have you ever tried to return open software to a retail store?

Re:I am not handsome enough to be a lawyer (5, Insightful)

milsoRgen (1016505) | more than 6 years ago | (#22478904)

have you ever tried to return open software to a retail store?
Indeed, returning software is just not an option. I was just having this discussion with my girl friend about my BitTorrent usage, how I need to try before I buy games. That's simply not an option (trying) for many games, and even games that have demos available are quite often based on beta code. But anyways, why should I be penalized when everything on the box points to a runnable program, only to find out the requirements are a little more liberal than I would expect. It's the same deal with the EULAs, once cash money has been paid and you start reading those things... What do you do, take the hit? That appears to be the only option.

It needs to be pointed out, piracy is the stated reason I cannot return opened software. Yet not being able to return opened software is driving me to piracy...

Lets call it by its true name (4, Insightful)

Anonymous Coward | more than 6 years ago | (#22479606)

The option to back out.


Let's call it by its true name: Coercion.

By the time you're presented with the EULA, you've already exchanged money for a box advertising the features of the software. That's a contract if ever I heard one. The EULA attempts to force you into a new contract, with NO CONSIDERATION beyond releasing their hold on the features and properties of the software that are already yours. That is coercion.

And no, disclaiming on the box that you have to agree to a contract is NOT sufficient if they are not disclosing the terms of the contract itself.

IANAL, but I have studied with one.

Re:I am not handsome enough to be a lawyer (3, Interesting)

Beardo the Bearded (321478) | more than 6 years ago | (#22478532)

No, they probably wouldn't stand up in court. You don't get the chance to review the contract before you sign it.

A lawyer I know told me, "If you ever get presented with a gratuitously unfair contract, just sign it because it isn't binding anyway."

That advice is worth what you paid for it. Consult a local lawyer.

Re:I am not handsome enough to be a lawyer (5, Interesting)

chaidawg (170956) | more than 6 years ago | (#22478660)

Courts have upheld EULA's in the US on several occasions. Save for some terms that the 9th circuit recently found unconscionable (particularly arbitration clauses) the courts are ok with them. See the ProCD and Gateway2000 cases. (Law Student, graduating in May)

Re:I am not handsome enough to be a lawyer (1)

Beardo the Bearded (321478) | more than 6 years ago | (#22478818)

Yes, which is why I said to consult a LOCAL lawyer. The rules change depending on where you are and how far the last case went.

I'm in Canada. I play by different rules, eh?

return-to-store test case (5, Interesting)

davidwr (791652) | more than 6 years ago | (#22478922)

I'd love to see someone do a return-to-store test case:

Go to a Big Box Computer Retailer, use cash to buy an expensive item you know the manager won't "just let you return" in the interest of customer satisfaction, take it home, open it, start to install it, click "no, I don't agree," then try to return it. Use cash so it's clear you don't have recourse through your credit-card company.

The store says no. File a several-hundred-dollar-plus-court-fees small-claims action.

Wait for the store to transfer the case to regular court. Amend your suit to include legal fees and triple damages for being an ass, offering to settle for the original purchase price plus legal fees incurred so far all the while, so the judge knows you aren't being an ass.

Wait for the ruling that the contract was not complete until you click on "yes, I agree." The judge should rule that either:

*you had a contract with the store, in which case the product did not meet ordinary merchantability standards i.e. it would not work without imposing other obligations not present at the time of the contract, in which case you can void the contract

or

*The store is acting as an agent for the software maker. You gave the store owner funds to hold until you entered into a contract with the software maker. If you did not enter into the contract you have a reasonable period of time to seek a refund from the store.

In the worst case, the judge will let the store off the hook but allow you to add the software maker as a co- and later sole-defendant, and rule that the software maker owes you a full refund plus sales tax. In this case you will be out your legal fees though.

In any case, there will be a ruling giving consumers protection up to the point that they say "yes, I agree."

Re:return-to-store test case (1)

TemporalBeing (803363) | more than 6 years ago | (#22480046)

Go to a Big Box Computer Retailer, use cash to buy an expensive item you know the manager won't "just let you return" in the interest of customer satisfaction, take it home, open it, start to install it, click "no, I don't agree," then try to return it. Use cash so it's clear you don't have recourse through your credit-card company.
What, like Windows Vista Ultimate Edition?

Re:I am not handsome enough to be a lawyer (2, Insightful)

cfulmer (3166) | more than 6 years ago | (#22479350)

That is horrible advice and is worth far less than what I paid for it.

Sure, unconscionable contracts, or unconscionable clauses in contracts are not enforced, but "unconscionable" != "very one-sided". And, penalty clauses are often not enforced. But, there are plenty of very one-sided agreements that are regularly enforced -- your credit card agreement is probably one of them.

Plus, if you sign a contract with no intention of ever following through, you may end up getting hit with punitive damages.

Re:I am not handsome enough to be a lawyer (1)

cfulmer (3166) | more than 6 years ago | (#22478854)

First of all, the classic requirements are offer, acceptance and consideration. "Meeting of the Minds" is just another way of asking the question "did you guys both agree to the same thing?" For example, you agree to buy my car, but I have two cars and you intended to buy the one that I wanted to keep, and not the one I wanted to sell. "Meeting of the Minds" *DOES NOT* mean that the agreement was negotiated.

The consideration requirement is pretty easy: "I give you a limited right to use this software and in return you agree to pay some money and to follow the EULA."

Re:I am not handsome enough to be a lawyer (1)

Stanistani (808333) | more than 6 years ago | (#22479630)

My agreement was made at the cash register.
I gave the store money, they handed me a box of software.

Re:I am not handsome enough to be a lawyer (1, Interesting)

Anonymous Coward | more than 6 years ago | (#22478962)

Actually, I think a directive that replaces the EULA would be good for all parties. It would essentially standardize the licensing terms for (commercial) software. The shrink wrap says:

This software subject to the terms of EU directive Blah Blah.

Presumably the directive would hold up in court so developers are safe.

The consumer would have the same license for all software and would clearly know what they're getting into before purchase.

Expect the lawyers to object, they should be be the only ones.

Re:At Last! (1)

Finallyjoined!!! (1158431) | more than 6 years ago | (#22478404)

All it needs now is a test case, then we can finally (at least here in the UK) get rid of these shrinkwrap licences.

We also need legislation to stop the Monopoly taxing new PC's. I'm lucky in that I use a supplier (Novatech) that will supply PC's without the Micro$haft tax, try buying one anywhere else.

Re:At Last! (1)

KublaiKhan (522918) | more than 6 years ago | (#22478540)

I don't go for cutting-edge PCs, and have had reasonably good luck with refurbished business PCs that you can sometimes find being distributed without an OS. geeks.com and techforless.com have treated me well.

(I'm not associated with either--I just buy from 'em every once in a while)

I stress _BUSINESS_ PCs--the consumer-grade nonsense that you get from the box stores and the like is usually pretty dismal in quality. The ones intended for business tend to have fewer integrated parts, more expansion room, and other upgradeable features.

One Pound! (1)

Finallyjoined!!! (1158431) | more than 6 years ago | (#22478994)

I once bought 3 PC's from a local company that had done a mass "upgrade", they were 1.8gig Pentiums with sizeable drives (low-level formatted) & oodles of RAM, for the princely sum of one pound sterling each :-) c/w 19" CRT, kb, mouse & speakers. It was cheaper for them than scrapping

Can't say fairer than that :-)

But when I want a new PC for home, I buy from novatech, for the reasons given in above post (no affiliation, have just been buying from them for ever)

Re:At Last! (1)

Beardo the Bearded (321478) | more than 6 years ago | (#22478622)

If you get rid of the shrinkwrap EULAs, they'll just put them up online:

"By installing this software, you agree to the terms listed at http://yoursoftware.eulas.co.uk/gibberish/southhampshire/new/eula/contracts/ty282-12273sre/legal/agreement.html [eulas.co.uk]

IF YOU DON NOT AGREE TO THOSE TERMS DO NOT INSTALL THE SOFTWARE."

(Website may be down "periodically" for "maintenance".)

Re:At Last! (1)

h4rm0ny (722443) | more than 6 years ago | (#22478790)


Count another sale up to Novatech, for supplying laptops without Windows installed. It's the reason we bought from them and also the reason we found their site.

Disclaimer: (0)

Anonymous Coward | more than 6 years ago | (#22478712)

If you live in X, this EULA may not apply to you. Furthermore, tearing open the shrinkwrap doesn't necessarily void the warranty (expressed or implied) for occupants of Y.

So what about the rest of us? Where is the chainreactionofcommonsense?

The end of the monopoly of greed is near (0)

Anonymous Coward | more than 6 years ago | (#22479530)

This is the end. Das ist das ende! Es etes fini! The very idea that software may actually cause a liability on the seller to produce:
        1. A product
        2. That actually works per the implied Warrantee of Merchantibility or Fitness
        3. Complies with the Irish Sale of Goods Act
        4. Actually is required to have a value more than nil
        5. A product that is liable to be sued if it fails

    just like every other non-monopoly preferred consumer product! Maravelous AusGeseichnet!
C`est bon! Hope it flies past the sock puppet European Commission.

EULA (0)

Anonymous Coward | more than 6 years ago | (#22479934)

By reading this EULA, you hearby agree to retroactively and forever afterwards never be bound by the terms of an other EULA.

By replying to this message (4, Funny)

TheLink (130905) | more than 6 years ago | (#22478306)

By replying to this message, you agree to sign away all your rights to me, and once a month, go to a public place, stand on one foot and howl at sky at 12am.

What no replies?

*yawn*

Re:By replying to this message (-1)

Anonymous Coward | more than 6 years ago | (#22478346)

I for one welcome my Linky overlord

Re:By replying to this message (0)

Anonymous Coward | more than 6 years ago | (#22478732)

I do.
.
.
inform

Re:By replying to this message (5, Funny)

Eberlin (570874) | more than 6 years ago | (#22478832)

And by reading the subject line of this reply, you agree to give me all my rights back.

However, I'll voluntarily do the one foot, howl at sky thing. Sounds fun enough.

Re:By replying to this message (0)

Anonymous Coward | more than 6 years ago | (#22478938)

By reading this reply, you cancel all previous agreements, and agree to spend at least 1 hour a week doing a monkey impression.

Re:By replying to this message (1)

spootle (1033314) | more than 6 years ago | (#22479384)

i'm in.

They didn't review the GPL (2, Interesting)

fishbowl (7759) | more than 6 years ago | (#22478344)

Would have been awfully nice to see the GPL considered side-by-side with these other licenses.
Does the GPL also create an imbalance between the rights of the distributer and the rights of the consumer?

No need. (1, Informative)

Benanov (583592) | more than 6 years ago | (#22478366)

GPL != EULA as you don't have to agree to the GPL.

Re:No need. (3, Informative)

reebmmm (939463) | more than 6 years ago | (#22478688)

Lies and damned lies.

I think that the parent's post is probably one of the favorite myths of this site. And, as a matter of law, it is simply not true. When you "accept" GPL software, you "accept" a few very important things:

2. Basic Permissions.

All rights granted under this License are granted for the term of copyright on the Program, and are irrevocable provided the stated conditions are met. This License explicitly affirms your unlimited permission to run the unmodified Program. The output from running a covered work is covered by this License only if the output, given its content, constitutes a covered work. This License acknowledges your rights of fair use or other equivalent, as provided by copyright law.

You may make, run and propagate covered works that you do not convey, without conditions so long as your license otherwise remains in force.

***

15. Disclaimer of Warranty.

THERE IS NO WARRANTY FOR THE PROGRAM, TO THE EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT WHEN OTHERWISE STATED IN WRITING THE COPYRIGHT HOLDERS AND/OR OTHER PARTIES PROVIDE THE PROGRAM "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PROGRAM IS WITH YOU. SHOULD THE PROGRAM PROVE DEFECTIVE, YOU ASSUME THE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
16. Limitation of Liability.

IN NO EVENT UNLESS REQUIRED BY APPLICABLE LAW OR AGREED TO IN WRITING WILL ANY COPYRIGHT HOLDER, OR ANY OTHER PARTY WHO MODIFIES AND/OR CONVEYS THE PROGRAM AS PERMITTED ABOVE, BE LIABLE TO YOU FOR DAMAGES, INCLUDING ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE PROGRAM (INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR DATA BEING RENDERED INACCURATE OR LOSSES SUSTAINED BY YOU OR THIRD PARTIES OR A FAILURE OF THE PROGRAM TO OPERATE WITH ANY OTHER PROGRAMS), EVEN IF SUCH HOLDER OR OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.


In this sense, it is an agreement with END USERS. Among other things, it grants to the end user the permission to run the software. It also addresses distribution, but that is not the point.

I also states that you get it without any warranties (non-infringement, merchantability, fitness for a purpose, etc.). And it states that even if you think you had damages because of the use of the software, you'd have no right to recover anything.

I'll point out, most people think that limitations on liability that limit your damages to $0 as some of the most heinous parts of EULAs.

If you don't agree to those terms, you can reject the offer.

Even under the terms of most EULAs (and most case law), a EULA is only effective if you have some right to reject: return, refund, etc. ** Contrary to what some think, that right to reject doesn't have to be "easy" or obvious. **

Re:No need. (3, Insightful)

wilder_card (774631) | more than 6 years ago | (#22478830)

"I'll point out, most people think that limitations on liability that limit your damages to $0 as some of the most heinous parts of EULAs." True, BUT. Most people think if they pay something for software, they have a legal right to expect that it does what it says. However, if they didn't pay for it, it would be grossly unreasonable to expect the same legal rights.

Re:No need. (2, Informative)

fishbowl (7759) | more than 6 years ago | (#22478884)

Thank you for your comment!

My perspective is from the other direction: Find some basis to "invalidate" the GPL (I love the saying "...untested in court..." as though it is important)... Find that legal basis and ALL software contracts derived from copyright law are invalidated as well. Essentially if the author does not have the rights needed to license under the terms of the GPL, then he does not have some of the rights that copyright supposedly grants.

One argument will be "without these licenses, software makers will not produce the products." We all know how unlikely that is. Besides it would be fine and dandy if the playing field were more open. Another argument is that vendors will have to go back to individual agreements with each customer. I wonder what would be so wrong with that? If you want me to sign a contract in order to use your product, by all means, put the contract in front of me, let me evaluate its terms side-by-side with its consideration, and I'll get back to you -- maybe your competition offers better terms. Maybe your big ugly contract influenced me during the critical moment when I was hot to buy, and now I'm not so sure.

FYI, the only software I've ever written for profit, did indeed have an individually negotiated contract with each client, and the legal terms were specified in that, and would be fully enforceable in the state where I was doing business.

But these mass-market software folks want to have all the power of an individual contract (actually, they want more than the assignee can legally grant via contract, sometimes), but they want none of the obligations, and want to offer no real consideration. EULA's won't stand up as contracts, in general.

The GPL on the other hand, holds if the grantor actually has the appropriate rights under copyright law.

In essence, to "Test the GPL in Court" and find it invalid, would mean invalidating *copyright law* to a certain degree. In other words, this is not going to happen.

Re:No need. (2, Insightful)

Mr2001 (90979) | more than 6 years ago | (#22479068)

In this sense, [the GPL] is an agreement with END USERS. Among other things, it grants to the end user the permission to run the software.
Since when do you need permission to run software that you've legally obtained? You can reject the GPL's terms and still keep using the software, as long as you don't distribute it.

Mod Parent MisInformative (1)

shadow_slicer (607649) | more than 6 years ago | (#22479408)

You are not required to agree to the terms of the GPL in order to use the software. Read the license a little more carefully: It "affirms" (eg. reiterates, reinforces) your unlimited right to run the program. This implies that you already have the unlimited right to run the unmodified program, but under the license this is even more so. This is clarified even further in other sections:

9. Acceptance Not Required for Having Copies.
You are not required to accept this License in order to receive or run a copy of the Program. Ancillary propagation of a covered work occurring solely as a consequence of using peer-to-peer transmission to receive a copy likewise does not require acceptance. However, nothing other than this License grants you permission to propagate or modify any covered work. These actions infringe copyright if you do not accept this License. Therefore, by modifying or propagating a covered work, you indicate your acceptance of this License to do so.

Re:No need. (1)

Ioldanach (88584) | more than 6 years ago | (#22479542)

In this sense, it is an agreement with END USERS. Among other things, it grants to the end user the permission to run the software. It also addresses distribution, but that is not the point. I also states that you get it without any warranties (non-infringement, merchantability, fitness for a purpose, etc.). And it states that even if you think you had damages because of the use of the software, you'd have no right to recover anything.
If you refuse to accept the GPL, you can still use the program. As the license says, it is explicitly affirming a right you already have. And the no warranty includes an 'unless required by applicable law' statement. So you can go right on using that program whether or not you agree to the license. If you want to redistribute it, or changes you made to it, copyright law prohibits you from doing that so you must then agree to the license.

Re:No need. (1)

reebmmm (939463) | more than 6 years ago | (#22479926)

As the license says, it is explicitly affirming a right you already have.

And, where, pray tell, did those "rights" come from? The GPL simultaneously implies rights to end users and yet asserts copyrights against propagators. Consider the following.

One does not ordinarily have the "right" to "use" copyrighted works without permission. In this sense, "use" means one of the exclusive rights in a copyright. They come from some license. When one buys a book, you have a right to "use" the book, but you don't have the right to reproduce it. One could understand this to be an IMPLIED license.

The GPL's language is, in contract language, a RESTATEMENT of this implied license. You DO accept the terms of that IMPLIED license when you download or run it. Of course, the license (but for the warranties and limitations of liability, a topic I discuss below) does not put any other limitation on use. So, it's not like acceptance/rejection means much. Nevertheless, it is a license.

Now, as to the warranties and limitation of liability. It would be interesting to see how a court would construe these clauses if you are correct (and if the GPL's inconsistency is correct).

If it's true that the GPL does not form a contract with an end user, developer's beware: you're on the hook for unlimited liability for anything that you contribute to a GPL product. Worse yet, you're not getting much consideration for that unlimited liability.

Moreover, if it's true that the GPL doesn't form a contract with end users, that software had better damn well work. Otherwise, you're potentially on the hook for warranty claims: non-infringement, fitness for a purpose, merchantability, etc.

Frankly, I hope you're wrong.

Re:No need. (1)

Ioldanach (88584) | more than 6 years ago | (#22480154)

If you acquire a legitimate copy of a book, which is to say, one that was published in accordance with copyright laws and then sold and resold from the publisher to the vendor to you, then you've acquired material properly created in accordance with copyright law and therefore have the legal right to use it, as provided for in copyright law itself.

Likewise, if you receive a copy of a GPL piece of software from a distributor properly complying with the GPL, you've acquired material properly created in accordance with copyright law and therefore have the legal right to use it. No license to use it is required. GPL v2 specifically states this with point 5.

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. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it.

GPL v3 addresses this with point 9.

9. Acceptance Not Required for Having Copies.
You are not required to accept this License in order to receive or run a copy of the Program. Ancillary propagation of a covered work occurring solely as a consequence of using peer-to-peer transmission to receive a copy likewise does not require acceptance. However, nothing other than this License grants you permission to propagate or modify any covered work. These actions infringe copyright if you do not accept this License. Therefore, by modifying or propagating a covered work, you indicate your acceptance of this License to do so.

Re:They didn't review the GPL (1)

SanityInAnarchy (655584) | more than 6 years ago | (#22478414)

Indeed, it does. The other way, though, as it should be.

Re:They didn't review the GPL (2, Insightful)

I confirm I'm not a (720413) | more than 6 years ago | (#22478422)

> Does the GPL also create an imbalance between the rights of the distributer and the rights of the consumer?

I wouldn't have thought so, since consumers can freely read the GPL before using the GPL-licensed application, and the GPL effectively empowers the consumer to become a distributor. I had a quick peek at the relevant legislation [opsi.gov.uk] and couldn't see anything that would affect the GPL.

IANAL etc etc

Re:They didn't review the GPL (1, Interesting)

Anonymous Coward | more than 6 years ago | (#22478430)

The GPL is not an EULA, it only affects redistribution and redistribution of derived works. EULAs try to impose all manner of unreasonable things.

That said, if the GPL _were_ considered alongside them, rest assured that the government/corporations would try to find some way to outlaw the GPL, e.g. by stupidly stating that all EULAs must *forbid* redistribution (maybe on some trumped up consumer safety or "discouraging piracy" grounds- I doubt many politicians outside the Green and Pirate parties get the point of the GPL).

Re:They didn't review the GPL (4, Informative)

sconeu (64226) | more than 6 years ago | (#22478582)


GPL is a distribution license, not an EULA. Section 0 specifically says you don't need to agree to it to use the software.

GPL doesn't take away any of your (end users) rights under copyright law, it adds additional rights.

GPL (at least GPL2) is readable and pretty much understandable by mere mortals.

Re: They didn't review the GPL (2, Insightful)

Black Parrot (19622) | more than 6 years ago | (#22478658)

Does the GPL also create an imbalance between the rights of the distributer and the rights of the consumer?
Don't know, but what's important is that we play by the same legal rules regardless of the license. Can't say shrinkwrap is enforcable but GPL is not, nor vice versa.

Re:They didn't review the GPL (1)

moderatorrater (1095745) | more than 6 years ago | (#22479022)

As others have pointed out, the GPL isn't a EULA at all, it's an agreement as to how you'll use the source of the software and how you'll redistribute the software. Whereas the commission about EULA's said that people can't access them beforehand, they're burdensome, and they're not understandable by someone without a law degree, the GPL is widely available. It's not burdensome, since it's less restrictive than the norm of not giving the source and especially since it doesn't apply to the end user. It's easily understood by those without a law degree and analysis can be found in many places.

In general, it is legally acceptable to abuse. (-1, Offtopic)

Futurepower(R) (558542) | more than 6 years ago | (#22478350)

Rich people and organizations are given advantages. In many cases it is entirely legal to take advantage of the average person.

We don't have government for the people, we have government that takes advantage of people. This is especially true of Bush administration, but it has been true of other U.S. administrations and of those in other countries, too.

Too bad. (1)

gfxguy (98788) | more than 6 years ago | (#22478354)

Contract's a contract... maybe if many people get totally ripped, they'll start looking more into the alternatives than blindly accepting their MS overlords.

And no, this isn't an MS bashing post, I use MS for a lot of things... but most things can be done on the cheap and free and without a lot of legal hassle.

The next thing you know is that any published novel written in MS Word will be the property of MS.

Re:Too bad. (2, Informative)

I confirm I'm not a (720413) | more than 6 years ago | (#22478502)

> Contract's a contract...

Under UK law [opsi.gov.uk] that's not entirely true. If a contract employs unfair clauses those clauses can be nullified. An analogy is, if you borrow £10000 from me and agree that (a) you will repay it with 12 months, and (b) if you don't repay it I can break your legs. This is unfair: if the contract was challenged in court it's highly likely that (a) you would have to repay the debt, and (b) I could not break your legs if you didn't repay within the specified time-frame.

IANAL etc etc

Re:Too bad. (1)

LandDolphin (1202876) | more than 6 years ago | (#22480028)

Broken legs sound fair to me if you fail to pay back £10000

Not quite (3, Insightful)

aepervius (535155) | more than 6 years ago | (#22478516)

In many country (in EU for example) you cannot give up fundamental right, or agree to give up protection of the law by signing a contract. This in many case nullify the contract utterly. But surprise, surprise, many of those EULA (particularly the one drafted for the US and just translated) just do that, for example in saying they are not liable for any damage occasioned by the software. Although in recent year I saw in a lot of EULA added "except in the country which forbid such clause, in which case it does not apply" or something similar.

I USED to before install go and change the text of the EULA for fun (so that the CEO of the software maker give me his first born). Or delete the text file before install. Or ask my nephew to install your software (kids aren't contractible if parents refuse). Such shenanigan would not happen with a real signed contract.

Re:Not quite (1)

cheebie (459397) | more than 6 years ago | (#22479176)

I always announce "I modify this contract by scratching out every line".
When I click agree they have agreed to my modified contract.

Re:Not quite (2, Informative)

mr_matticus (928346) | more than 6 years ago | (#22479364)

I'm not sure how this got modded insightful, but it's not true.

This in many case nullify the contract utterly.
No, with the exception of particularly egregious contracts, it nullifies the invalid term, not the contract itself. This is also true in the United States, though US courts are less inclined to interfere with terms and there are overall fewer objectionable contract terms.

for example in saying they are not liable for any damage occasioned by the software
They're not. This is a standard disclaimer on consumer products. All liability is specifically disclaimed, except that covered by the limited warranty and that which is not waived under the law (e.g. if it causes bodily injury through defect or negligence). I don't believe there is any significant case awarding damage for defective software.

Such shenanigan would not happen with a real signed contract.
Clearly you don't have a lot of experience with contracts, then, because those shenanigans are the only reason that contract attorneys have jobs. What you do with the text box is just as irrelevant as what you do with your copy of the written terms. You can fire up Word and mess around with it all you like. The process is simple: did you buy the copy of the software? Are you the registered owner of the software? Do you represent yourself as the owner of the license to the software? If yes, it doesn't matter if your two year old clicked "next". There aren't many instances in which you'd have an opportunity or a reason in court to use that particular out. If you're challenging the terms in court, you have to be a party to them. If you decide you don't like the terms, you can always back out by uninstalling the software. Quite simply, it's not as though you had no access to the terms before purchase; on the contrary, EULAs are available quickly and easily in advance for anyone who wants to review them. This is the big weakness in the report and it's a major consideration when attempting to litigate in this field.

There are certainly issues that need to be worked out (e.g. some fairly ridiculous and one-sided provisions are common; if the terms are rejected, getting a refund for open software generally requires you to send a letter threatening to sue before they offer to take care of it), but similar devices are and have been a commonly used tool and will remain so.

And once again, the report, like Netscape and the other seminal cases people like to point to, don't go as far as people commonly believe they do. This report says that EULAs are unfair and overly complex. That is true; it doesn't mean they're saying EULAs themselves are wrong. As a consumer advocacy group, their job is to simplify and re-balance the terms. This is a great thing, but it's not an incrimination of the agreement as a tool, so don't lose sight of that.

Re:Not quite (1)

xaxa (988988) | more than 6 years ago | (#22479980)

I USED to before install go and change the text of the EULA for fun (so that the CEO of the software maker give me his first born). Or delete the text file before install. Or ask my nephew to install your software (kids aren't contractible if parents refuse). Such shenanigan would not happen with a real signed contract.
My law lecturer told me she went skiing in Canada (where the law on contracts is very similar to UK law). She had to sign a disclaimer saying that the ski company wasn't liable for injury, among other things. She crossed out that clause, signed it, pointed it out to the (dumb) clerk, who signed his part and thus accepted the modified contract.
The next year she went to the same place, and found an extra clause had been added: "This contract may not be modified except with the agreement of [the company lawyers]".

Contracts can be modified before they are signed (2, Interesting)

Maximum Prophet (716608) | more than 6 years ago | (#22478600)

If you are presented with a contract by a company, you can cross out sections of the contract that you can't live with. If the company's agent accepts that contract, they are bound by it. (subject to vagaries of contract law)

If I were to write a utility that would allow me to electronically cross out sections of an electronic EULA, and then the program (the owner's agent) accepted that modified EULA, would both parties be bound by the new contract? What if my utility allowed me to add sections as well. i.e. If this MS program crashed, MS will pay me $1,000,000

Most EULAs will allow you to print them before accepting them. I could make the same modifications to the paper copy as well. Even if there was a pre-clause that said the EULA couldn't be modified, I could cross that out too.

Re:Too bad. (2, Informative)

Anonymous Coward | more than 6 years ago | (#22478808)

Q: When is a contract NOT a contract?
A: When it is not legally valid and violates the law.

If there is no meeting of the minds, there is no contract, not matter what one party writes down.

If there is an adhesion contract where one party receives its consideration (money) before releasing the terms of its offer and the terms, when enforced are unconscionable, or if there is a mistake because the two parties reasonably think the terms of the contract to mean different things, a court can and should put such contracts aside. The fact that most people do not fight for there rights or that some judges may not correctly apply the law does not change the legal principles.

In most EULAs and TOS, there is no level playing field. Other than getting in on some sort of class action suit where all the money goes to the lawyers, there is no way most consumers will take on corporate lawyers. The EU is not into class actions like the US. It makes sense for the laws to level the playing field and keep contracts fair.

Unfair Contract Terms Act 1977 (4, Informative)

tagishsimon (175038) | more than 6 years ago | (#22478360)

UK consumers who have reason to contest contract terms would likely be protected by the Unfair Contract Terms Act 1977 [wikipedia.org] .

A terrific "indirect" attack! (2, Insightful)

erroneus (253617) | more than 6 years ago | (#22478400)

The EULA has for a VERY long time been a form of consumer abuse that has been tolerated for far too long. While I have little doubt that this is likely to be an attack against Microsoft, once again, but this time it will address a kind of global form of consumer abuse that had likely started with Microsoft but has become a standard practice in the industry.

Of course if it were allowed, every other player in every other industry would hope to disclaim liability for anything and everything they sell you. But most governments, local, regional and national already have consumer protection laws in place to form the base-line of product liability. But for some reason, software as a product or as a service has somehow been overlooked in most areas (though some states in the US have consumer protection laws that include software). It'll be about time to see those same laws apply to software.

Where's my signature? (2, Interesting)

PhxBlue (562201) | more than 6 years ago | (#22478412)

If I've signed something away, there should be something in writing with my signature. I don't have it, and I bet the software companies don't, either. IANAL, but how does clicking a button on a VB form constitute a legally binding signature? If I hack the installer program and remove the form, does that mean I'm not bound by the EULA (even if it tells me I'm not allowed to hack the installer program)?

Re:Where's my signature? (4, Informative)

sjbe (173966) | more than 6 years ago | (#22478626)

IANAL, but how does clicking a button on a VB form constitute a legally binding signature?
A signature isn't the only way to legally agree to something. There are verbal contracts, contracts and licenses agreed to by an action (think GPL), the Uniform Commercial Code [wikipedia.org] which sets the terms of many sales unless both parties expressly agree to some alternative arrangement, and others. A signature is just one way (albeit a common one) to acknowledge your agreement to something.

In college I asked a law professor about EULAs and his take was that (generally speaking) EULAs are enforceable only if the buyer has had an opportunity to review them prior to the sale. I think this is a reasonable argument, especially since in practice you cannot return opened boxes of software. He would be the first to acknowledge that this has not been widely tested in court however so take what I'm saying with however much NaCl suits you.

Re:Where's my signature? (1)

amRadioHed (463061) | more than 6 years ago | (#22478764)

In college I asked a law professor about EULAs and his take was that (generally speaking) EULAs are enforceable only if the buyer has had an opportunity to review them prior to the sale.
What does an opportunity to review them mean exactly? IMHO it should only be valid if it is printed on the box, or in some other place that is readily available to the buyer at the time of purchase. I would think that that just because a person had the opportunity to find the EULA hidden away on some corporate website prior to purchase, it wouldn't be reasonable to think they would.

Re:Where's my signature? (2, Funny)

sjbe (173966) | more than 6 years ago | (#22478858)

What does an opportunity to review them mean exactly?
Should have added the word "reasonable" in there. Otherwise you end up with a scene from a Douglas Adams book involving a basement without stairs and a sign saying "beware of cougar".

Re:Where's my signature? (1)

Darinbob (1142669) | more than 6 years ago | (#22479972)

If EULA's are found to be the equivalent of legal contracts, aren't there limitations there also? Can I, in a legal contract, sign away basic rights and have that enforced?

Most of the EULA terms I generally will live with. But some things like "will not reverse engineer" or "will not transfer software to a new computer even if it's removed from the old computer" or "will not resell to another when finished with it" or "will only use software for its intended purpose" seem like they're skirting some basic Copyright abilities. If I own the software and its media, I should be able to use it as I see fit.

In the olden days, when people leased computers they would usually also lease software. Those lease and license agreements made more sense. Even if there were strong restrictions, at least there had been a signed agreement and the pretense that the purchaser had only obtained a temporary grant to use the software.

Today though, when people walk into a store and buy a box of software (contents may settle during shipping) the implication is that they're doing the same thing as if they buy a book at a bookstore. There's no hand waving going on in WalMart or BestBuy that I'm merely buying a software lease or license agreement, the purchase process is set up to look exactly like I'm purchasing software (with the same rights and abilities as if I purchased any copyrighted material).

Re:Where's my signature? (1)

CannonballHead (842625) | more than 6 years ago | (#22478768)

What about PayPal, or ordering online? Digital signatures? You are actually suggesting that my written signature should be required to make it legal? That'd make some things very, very slow...

Re:Where's my signature? (1)

PhxBlue (562201) | more than 6 years ago | (#22478914)

With PayPal and ordering online, you at least have your signature on the back of the card. You can also contact the credit card companies to contest any charge you think was fraudulent. An EULA doesn't give you that option -- and again, no signature. More troubling, as another poster pointed out, is that you don't have the chance to agree to the EULA until you're already bound by it.

Re:Where's my signature? (1)

CannonballHead (842625) | more than 6 years ago | (#22478964)

I'm not arguing for EULA's at all, they are ridiculously long at the very, very least... but digital signatures seem to be valid. Besides, anyone can sign my name... the thing is, that's forgery. Anyone can type my name as a signature, too ... but that's forgery.

Do credit card companies actually have a copy of your signature that they check other signatures to, or is it more the actual signing process that is important (and thus, if you are signing someone else's name, you are liable to be brought to court for forgery, a felony IIRC)

There is one thing I want to know... (2, Insightful)

zappepcs (820751) | more than 6 years ago | (#22478424)

If they revamp how EULAs are used and written, will they still include caveats for government retribution against the impossible case where they find you have done something that is illegal no matter what software you might have used?

http://sycrat.com/sycrat/screenshots/screenshot1.png [sycrat.com] NO WMDs please

Yes, I know the example is for US cases, but just the same.

Re:There is one thing I want to know... (1)

sconeu (64226) | more than 6 years ago | (#22478542)

That's it!!! We can arrest the terrorists for listening to their iPods while trying to build WMD!!!

EULA's and MMO's (1)

FinchWorld (845331) | more than 6 years ago | (#22478428)

I always wondered how they were affected by british consumer law (If memory serves you can't change a contract after the point of sale, in the UK), especially with games such as WOW were you buy an expansion seperate to the subscription fees with a possible EULA changing as well, and how the EULA would stand legally.

T&C (2, Interesting)

Stevecrox (962208) | more than 6 years ago | (#22478450)

Considering they object to 10 page EULA's for products I wonder how they feel about Terms and Conditions for product and services bought online? Last time I signed up for a server host I read through about 15 pages of terms and conditions which were contained with a tiny scroll box and that company was UK based. As far as I can tell the reasons they give for objecting are equally valid for every UK ISP I've signed upto and every service I've bought online. Should be interesting to see where it goes.

Seems strange.. (2, Insightful)

Mascot (120795) | more than 6 years ago | (#22478474)

with the conclusion that many consumers are signing away their legal rights

One might argue that if the law is so weakly formulated that it is rendered invalid simply by one party telling the other that it is, then the law is the problem not the EULA. Haven't read TFA so no idea if this is just another misleading summary or not, but it strikes me as strange that would be possible in most any country.

Where I live there's no way to sign away my legal rights. A EULA can demand I agree to being boiled in oil if I reverse engineer the program, but that means less than the pixels used to display the EULA in the eyes of the law. Especially since reverse engineering something to make it suit my needs is explicitly protected by law last I heard.

Come to think of it, don't most EULAs actually include a phrase stating it's not applicable where void by local legislation?

Then don't buy the software (1)

truthsearch (249536) | more than 6 years ago | (#22478524)

it would be unreasonable to expect an average consumer to understand the terms to which they were agreeing

Then they shouldn't agree to it. As long as the license is available before purchase, people should not be buying a license they don't comprehend. It's just that simple. Just like the mortgage lending problems people are agreeing to terms they don't understand or don't have the patience to read. What we need is not regulation as much as consumer education.

Re:Then don't buy the software (1)

joe 155 (937621) | more than 6 years ago | (#22478876)

I completely disagree. How am I going to find which EULA applies to the specific software I am going to buy? Online i may just about be able to to find a general one for that company if I knew were to look and that such a thing was necessary (which a lot of consumers won't). So it is still incredibly uncertain even if you know what your doing. Then you have the problem that they reserve the right to change it without warning and you continuing to use it is counted as acceptance.

That's without considering cases where you just dont know that there will be one, as you might find with an iPod say. Finally I would just say that products which come with a license arenot luxury goods anymore, they are neccesites - people souls not need a degree in law (and even then that's not a guarantee) in order to get what they need. The are manifestly unfair.

Re:Then don't buy the software (0)

truthsearch (249536) | more than 6 years ago | (#22479264)

My comment was about people agreeing to the terms without reading them, assuming they have easy access to the license before/during purchase. The article is more about the content of the license than access to it.

I agree with the issue of access. Everyone should be able to easily read a license before purchase, but that's not the point of the article.

Again, if you don't agree to or understand the terms, don't use the software. Find a competitor who offers a better license or don't use the software at all.

Re:Then don't buy the software (0)

Anonymous Coward | more than 6 years ago | (#22479194)

Okay, but a click-through license is unacceptable. Even a paper insert isn't good enough. If a company's terms are that complex then they should sit you down in front of a real contract and have each party sign it - after reading it completely of course. If they don't want to go through the trouble to do it right then they shouldn't have a EULA at all!

There is a way around it (0, Redundant)

fiannaFailMan (702447) | more than 6 years ago | (#22478550)

Doesn't the UK have the Unfair Contract Terms Act [wikipedia.org] to protect consumers from sinister fine print that they may have signed up to?

better way: have a minor install it. (0)

Anonymous Coward | more than 6 years ago | (#22478708)

Contracts with minors are usually unenforceable.

Re:better way: have a minor install it. (1)

shentino (1139071) | more than 6 years ago | (#22478812)

Having someone else do your dirty work for you brings in all the vagaries of agency law :)

priorities (0)

Anonymous Coward | more than 6 years ago | (#22479456)

I seriously doubt a $6K a month worker from a cash and manpower strapped governmental agency during a time of severe economic recession would be wasting rare taxpayer dollars to investigate a trivial situation involving a piece of $35 software bought from wal-mart.

EULA Crossout utility (4, Interesting)

Maximum Prophet (716608) | more than 6 years ago | (#22478554)

If you are presented with a contract by a company, you can cross out sections of the contract that you can't live with. If the company's agent accepts that contract, they are bound by it. (subject to vagaries of contract law)

If I were to write a utility that would allow me to electronically cross out sections of an electronic EULA, and then the program (the owner's agent) accepted that modified EULA, would both parties be bound by the new contract? What if my utility allowed me to add sections as well. i.e. If this MS program crashed, MS will pay me $1,000,000

Most EULAs will allow you to print them before accepting them. I could make the same modifications to the paper copy as well. Even if there was a pre-clause that said the EULA couldn't be modified, I could cross that out too.

So would such a program mean the end of EULAs as we know them? Would software publishers have to fall back to straight copyright and save the legal mumbo-jumbo?

Re:EULA Crossout utility (1)

FeepingCreature (1132265) | more than 6 years ago | (#22479004)

Two unrelated facts:
1) If you purchase a CD/DVD, precluding any special agreements between you and the seller, you are legally allowed to read all data on it.
2) Most setup files for Windows can be extracted by hand. Often you only have to move files around a bit to make the program work.
What EULA?

Re:EULA Crossout utility (1)

labnet (457441) | more than 6 years ago | (#22479704)

If you are presented with a contract by a company, you can cross out sections of the contract that you can't live with.
Which is exactly what we did on a construction contract recently. The engineering firm attempted to contract away all of their liability with the design of a 500ton slab. We crossed out those sections of the contract, they agreed, and the job went ahead.

This is not practical for most boxed software, so I think the government should legislate common law rights in regards to purchased commercial software. This could only be then extended or altered by a signed contract between the parties.

Re:EULA Crossout utility (0)

Anonymous Coward | more than 6 years ago | (#22479986)

Such a program would be very easy to write. Most installers use InstallShield, where the EULA is just an RTF file dumped into a standard Visual Studio RTFText box. It will process window events, so you could hook the window and send it a command to remove the read-only flag on the RTFText box, or even to enable the "Next" button while the "I do not agree" radio button is checked.

Unfortunately the document (3, Funny)

LM741N (258038) | more than 6 years ago | (#22478574)

Contains a EULA which forbids it from being read.

Cell contracts (1)

plague3106 (71849) | more than 6 years ago | (#22478606)

Sounds like it would apply to the type of contracts US cell phone companies force upon us. Can anyone really figure those out without a lawyer?

I just click 'yes' without reading. (1)

Black Parrot (19622) | more than 6 years ago | (#22478614)

I used to be conscientious about reading them, but I came to the same conclusion as a report: IANAL, and I don't have a clue what all the legalbabble actually means. In the unlikely event I ever end up in court over one of them, that's exactly what I'll tell the judge.

Anyone taken to task over an EULA? (1)

mcsqueak (1043736) | more than 6 years ago | (#22478640)

I'd like to know how many people here have actually been taken to court, or taken someone else (a company) to court or other legal proceedings over what was said in an EULA.

I'm sure I "read" the EULAs just as closely as most consumers: I don't. The times I've tried, it took a VERY long time and it made sense, I guess... but by the time you get through it you can hardly remember the content or context of what it said. 99% of the time I just click OK... I've never had an issue where I've had to refer back to an EULA, personally.

Re:Anyone taken to task over an EULA? (1)

fishbowl (7759) | more than 6 years ago | (#22479100)

>I'd like to know how many people here have actually been taken to court, or taken someone else (a company) to
>court or other legal proceedings over what was said in an EULA.

None. Court cases involving software EULA's with the *consumer* as a party are vanishingly rare.
You may find conflicts between publishing and distribution companies, and the like, where cases were
settled on the basis of terms in one of these licenses.

There have been a few suits filed by consumers against companies, most famously against Microsoft.

There are VERY few rulings that directly speak to validity of terms in a specific EULA, most famous one I know of being the judgment against Network Associates that they COULD NOT suppress product reviews via EULA.

There is also the Sony/BMG lawsuit where, even if the user said "NO" to the license, the software (DRM codec with a serious security flaw) was installed anyway.

I think there have been some EULA cases with phone licenses. Ask one of the slashdot lawyers or law students. They should be the ones studying this stuff.

Do you accept these terms? Only option is "Next"! (2, Informative)

Anonymous Coward | more than 6 years ago | (#22478710)

If you start a new computer (w/ Vista) for the first time, you are presented with a screen to accept the EULA.

What's (NOT!) funny here is that the only option is to accept and click Next.
There is no option for Cancel. Just poweroff...

Re:Do you accept these terms? Only option is "Next (1)

shentino (1139071) | more than 6 years ago | (#22478766)

I think that counts as duress, becuase you've already repartitioned/reformatted/whatever you call it, and anything you had before is kaplooey.

They should make you agree to it BEFORE you install it. Won't do much as far as enforceability is concerned, but it will let you decide on how you want your eggs before they've already been cooked.

Re:Do you accept these terms? Only option is "Next (1)

base3 (539820) | more than 6 years ago | (#22478880)

That, and there's no consideration, as the buyer has already paid for the computer and the software.

The Borland "It's like a book" license c. 1980s (5, Informative)

davidwr (791652) | more than 6 years ago | (#22478742)

In the 1980s, Borland products came with a "treat it like a book" license.

It was written in Plain English. It essentially said you could trade, lend, buy, sell, resell, etc. as long as no more than one person had copies at a time and that the software wasn't being used on more than one computer at a time.

Re:The Borland "It's like a book" license c. 1980s (1)

wilder_card (774631) | more than 6 years ago | (#22478874)

And it was one reason Borland became wildly popular. The more software they sold, and the more they tried to be like Microsoft, the worse the license got. Eventually they were just another company to be crushed beneath the treads of Microsoft's tank. Sniff.

Re:The Borland "It's like a book" license c. 1980s (0)

Anonymous Coward | more than 6 years ago | (#22479282)

I hold that license to be fair in 99.999% of cases. I would be willing to let the courts sort out the few oddball ones (the only one that comes to mind is gross negligence).

What kind of precendent does this set? (1)

Original Replica (908688) | more than 6 years ago | (#22478758)

"Consumers can't have a clue what they're signing up to when some terms and conditions run to 10 or more pages. There's a significant imbalance between the rights of the consumer and the rights of the holder.'"

So on a fundamental level this is a move against overly complex, lengthy, technically worded agreements. Which I think is a good thing. I have to wonder what happens if we apply this to other overly complex, lengthy things that should be knowledge that is accessible to the average citizen. While part of me has little sympathy for anyone who signed up for an Adjustable Rate Mortgage, or a crappy cellphone contract there is some indication that they didn't really understand what they were getting into. Or take this principle to our legislatures and ask if it is possible for any legislator to actually understand a 700 page bill that came out in it's final form three days prior to voting. While lawyers may try to tell you that all that wording is necessary in order to be clear, I think in more and more cases it has the exact opposite effect.

TPB license agreement (3, Insightful)

syousef (465911) | more than 6 years ago | (#22478788)

...which one reason why lots of people have, rightly or wrongly, replaced their EULA with the pirate bay version. Download it illegally, ignore the license, install and play with it. If they need it or are using it and feel guilty buy it. Even when they do buy it a lot of users continue to ignore the EULA. I'm not condoning this behavior but I am saying that onerous conditions in the EULAs directly contribute to piracy.

The other thing is that no one reads all their EULAs thoroughly. If they did heavy computer users would be complaining about spending weeks installing software (or not understanding something about the EULA), when in reality software installation is something people often are doing in their "spare" time after all their other obligations are met. I've found that those people who suggest they do read all their EULAs are either doing it for a job or socially impaired or just plain liars.

Most people just understand that unless it's free software it's not legal to copy. Beyond that they use their software however they choose paying no mind to the EULA. In fact I've come across many a game forum where people openly are flouting the terms of the EULA and the company who creates the game turn a blind eye and don't wish to even discuss licensing issues beyond regurgitating the "copying is stealing" mantra. This is enough enforcement for the company to benefit from the inclusion of the EULA for individual users. Only when the software is used on a grander scale contrary to the EULA does the company act to put a stop to that use, and even then only when it hurts their commercial interests.

Not a day to soon. (4, Interesting)

miffo.swe (547642) | more than 6 years ago | (#22478838)

"The NCC recommends that the European Commission bring softwre licenses under the same consumer protections that apply to other products in the EU."

Software companies has enjoyed unprecedented loose consumer protections. In fact, no protections has existed at all. The only protection is really the laws about advertising. That is, the software should act and do something that atleast is near what the adverts says.

If EU would bring normal consumer protection to software it should also work as expected. That is, it should not crash and burn without the manufacturer fixing it for you. With the same protections as for hardware it would cost countless millions to make your users the beta testers.

My work as an sysadmin would more be about tailoring solutions and less about getting expensive systems running with bandaid, duct-tape and broken patches that shouldnt be there in the first place.

Its about time software stops being treated like books and start living under the same rules as everything else. If a patch hooses my system the most i can hope for today is a patch regardless if it costs me millions in business. Most often in my case the answer has been "buy our next version, it really works this time, promise, cross my heart".

Things like this would punishing poor quality and i think that is really about time. Right now software really sucks.

I Do Not Agree letter (5, Interesting)

HeavenlyWhistler (716762) | more than 6 years ago | (#22479064)

A contract is binding when you agree to it. I have always been tempted to simply mail them a letter before installing the software in which I say "I am writing to inform you that I do not agree to your EULA, and I do not agree that I need a license to use this software. Since you sold me these nice shiny CDs containing the software, I am going to go ahead and install it. Have a nice day." Now this violates the Do Not Poke The Bear principle, but is on firmer legal ground than just ignoring it and hoping it will go away. The question is, when their lawyers send you a reply, what can they argue about? You didn't violate copyright (you bought a legal copy from the owner). You didn't agree to a contract so it isn't breach of contract. What legal grounds do they have to say "don't use our software", other than "we don't give you permission"? And who says I need their permission? It's my computer. If nothing else, their demand letter would have to include a refund check, otherwise they are in violation of their own EULA.

contracts (0)

Anonymous Coward | more than 6 years ago | (#22479144)

Wut? This is ta legal contract. The primary funciotn of the government is to enforce contracts and protect the homeland. Evereything else is communism. These customors gladly signed on to these contracts in exchange for getting there software. If they didn't understand the agreement they shouldn't'uve bouht the softwrae.

--
RON PAUL NOW!

EULAs invalid (1)

redelm (54142) | more than 6 years ago | (#22479904)

This UK group seems to accept at face value that EULAs are somehow valid when they fail the most simple tests of contract -- a meeting of the minds at consummation.

Yes, I'm aware some courts have upheld EULAs valid. Bad facts make bad law.

But the simple fact is a sale has taken place with certain terms. Imposing other terms afterwards is simply called "reaching". If the companies wanted EULAs enforced, they'd have tear-off signing cards on their products. Then it would be very simple. But the companies choose not to do so for marketing reasons or other convenience. Yet still wish to have the advantages of contract bestowed upon them. Have their cake and eat it too.

FAILjZORS!! (-1, Offtopic)

Anonymous Coward | more than 6 years ago | (#22480016)

And the BaMz4ar
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