Slashdot Log In
UK Report Slams EULAs
Posted by
kdawson
on Tue Feb 19, 2008 02:01 PM
from the signing-it-away dept.
from the signing-it-away dept.
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.
Related Stories
This discussion has been archived.
No new comments can be posted.
The Fine Print: The following comments are owned by whoever posted them. We are not responsible for them in any way.
At Last! (Score:5, Funny)
I am not handsome enough to be a lawyer (Score:5, Interesting)
- a 'meeting of the minds'
- agreement in exchange for 'a valuable consideration received'
Parent
Re:I am not handsome enough to be a lawyer (Score:5, Insightful)
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?
Parent
Re:I am not handsome enough to be a lawyer (Score:5, Insightful)
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...
Parent
Re: (Score:3, Interesting)
You know, it's not an option for movies, either. And a $7 ticket for a two-hour movie costs more, hour for hour, than a $60 game you can finish in 20 hours.
Besides oranges, are there any other fruits you'd like to compare that apple to?
If a movie came with a 'license agreement', which you could only read after you'd payed for your ticket, and the 'agreement' said that you were prohibited from discussing the movie with friends afterwards, then you might have a point (even though it would still be a horrible analogy.)
Lets call it by its true name (Score:4, Insightful)
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.
Parent
Re:Lets call it by its true name (Score:5, Insightful)
However, I don't think this detracts from your coercion argument. Even if the EULA is considered to be an extension of the contract for sale that was begun in the store, the buyer has already taken on the responsibilities of ownership by the time the EULA is presented (e.g. risk of loss, theft, or damage to the goods in transit to the buyer's home). Therefore the buyer must also obtain the rights of ownership. One of the rights of ownership of software is the right to use the software with a computer (section 117 of the Copyright Act bestows this right). The EULA is an attempt to interfere with this right.
So, even if the EULA is viewed as an extension of the contract for sale, any terms in the EULA that interfere with the buyer's ownership rights are, by that time, unconscionable. And the attempt to force the user to agree to those unconscionable terms is still coercion.
Parent
Re:I am not handsome enough to be a lawyer (Score:4, Interesting)
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.
Parent
Re:I am not handsome enough to be a lawyer (Score:5, Interesting)
Parent
return-to-store test case (Score:5, Interesting)
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."
Parent
Re:return-to-store test case (Score:4, Informative)
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
Part of the problem here is that in the UK, while you have some protections if you buy something that comes in a box, the general legislation (basically the Sale of Goods Act) may not apply to downloads that are purely electronic in nature because of some legal loopholes. It's not clear that under those circumstances there is any requirement of merchantability, suitability for a particular purpose, or similar.
Parent
Re: (Score:3, Insightful)
That being said, the store is unlikely to get off so easily. IIRC, the laws that govern retail business and make EULAs possible expect that a consumer should be able to return through a retail outlet. The judge may or may not be happy abo
US courts are okay with them, this is the EU/UK (Score:5, Insightful)
There is a difference, in the EU consumer rights mean something.
Do you know about dead pixels in LCD screens? The one the industry tells you are acceptable? Dutch law clearly FORBIDS this. ANY LCD with a single defective SUB-pixel has to be replaced. No argument possible. The netherlands is the only country where sony replaced every PSP with ANY pixel problems.
So you are right in saying these EULA's are not illegal in the US, but the EU has far better laws for protecting the consumer and it has long been known by any who follows consumer afair programs they are entirely without worth within the EU and any company that tries to take you to court over one will find a very hostile judge. Hence why they never been tested, the companies know they will loose it.
Parent
Re: (Score:3, Insightful)
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.
They almost certainly aren't (Score:5, Interesting)
As for being a contract it fails in several ways:
1) As you noted, there's no exchange. A contract MUST have an exchange to be valid. Even if you do something like quit a claim to a house (like you helped your kid by co-signing for it and now you are giving it over to them) it will still read "For the sum of $10 and other valuable consideration." Why? If there wasn't an exchange, the contract would be null.
2)It's ex post facto. Contracts have to happen before the sale, not after. That's why when you buy a house all the loan documents and such are done before you take ownership, before money changes hands. You can't try and say "But you agreed to this!" after the fact, you do it before hand or it is too late.
3) Not open to negotiation. That's what the "meeting of minds" thing means. A contract has to be open to negotiation. You don't have to meet face to face or anything (often it is done through the mail) and you certainly don't have to accept what the other side proposes, but you have to be open to it. You can't hand them a contract to sign and then have no way to get back to you.
4) No proof of agreement. That someone clicked "I agree" means nothing. There's no proof you agreed to it, or indeed that you were capable fo doing so. What happens when a minor buys a game and installs it? A minor can't enter in to a contract on their own, the parents never cosigned, etc.
There is really nothing about an EULA that meets the normal standard of what a contract is. If they want a contract governing their software, they need to have you sign it beforehand. However I'm going to guess that if people are presented with a 10 page wodge of text (EULAs are longer than any rental agreement I've seen) to read and sign when they try and buy an Xbox game, that it'll prove quickly to be an unworkable business model.
Parent
Re: (Score:2)
All it needs now is a test case, then we can finally (at least here in the UK) get rid of these shrinkwrap licences.
We also need legislation to stop the Monopoly taxing new PC's. I'm lucky in that I use a supplier (Novatech) that will supply PC's without the Micro$haft tax, try buying one anywhere else.
By replying to this message (Score:5, Funny)
What no replies?
*yawn*
Re:By replying to this message (Score:5, Funny)
However, I'll voluntarily do the one foot, howl at sky thing. Sounds fun enough.
Parent
They didn't review the GPL (Score:2, Interesting)
Does the GPL also create an imbalance between the rights of the distributer and the rights of the consumer?
Re: (Score:2)
Re: (Score:3, Insightful)
> 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 (Score:5, Informative)
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.
Parent
Re: They didn't review the GPL (Score:3, Insightful)
Re: (Score:3, Informative)
Depriving someone of the ability to use the rights they legally have is actionable.
The GPL on the gripping hand, is a voluntary license offered for those who want extra rights. It acknowledges specifically that you do *not* need to even read the GPL to use the software.
EULA:
Re: (Score:3, Informative)
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:
Re: (Score:3, Insightful)
Re: (Score:3, Insightful)
Too bad. (Score:2)
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: (Score:3, Informative)
> 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 et
Not quite (Score:4, Insightful)
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.
Parent
Re: (Score:3, Informative)
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
Contracts can be modified before they are signed (Score:3, Interesting)
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.
Unfair Contract Terms Act 1977 (Score:5, Informative)
A terrific "indirect" attack! (Score:3, Insightful)
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? (Score:3, Interesting)
Re:Where's my signature? (Score:5, Informative)
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.
Parent
Re: (Score:3, Funny)
There is one thing I want to know... (Score:3, Insightful)
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.
EULA's and MMO's (Score:2)
T&C (Score:3, Interesting)
Seems strange.. (Score:3, Insightful)
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?
EULA Crossout utility (Score:5, Interesting)
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?
Unfortunately the document (Score:4, Funny)
The Borland "It's like a book" license c. 1980s (Score:5, Informative)
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.
TPB license agreement (Score:4, Insightful)
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. (Score:4, Interesting)
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 (Score:5, Interesting)
Re:I Do Not Agree letter (Score:5, Interesting)
But what happens if you disagree? I'm unaware of any ruling that would indicate that you MUST return software if you disagree with the EULA. In fact, most cases -- including ProCD, use the UCC for analyzing EULAs. Here's my prediction of how such a case would go down:
The beautiful thing about this hypothetical case is that the statutes involved are all very clear and unambiguous leaving very little room for interpretation by the courts. Of course, IANAL so I could be ridiculously wrong.
Parent
Re: (Score:3, Interesting)
Copyright violation. In the USA, a judge has ruled that you need a contract to legally run software, since when activated the computer loads portions of the code into memory, which is considered copying, and additionally, most software also must first be copied and extracted from archives on the CD, creating a derivative work on your hard-drive
But copyright law specifically states that copies made as part of the normal operation of the software are not a violation of the copyright owner's rights. This was
Re: (Score:3, Informative)
Copyright violation. In the USA, a judge has ruled that you need a contract to legally run software, since when activated the computer loads portions of the code into memory, which is considered copying, and additionally, most software also must first be copied and extracted from archives on the CD, creating a derivative work on your hard-drive.
Please cite, because that makes no sense. Of course IANAL, but US copyright law [copyright.gov] seems to specifically say that installing and running a program is not infringement.
1