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Software Your Rights Online

UK Report Slams EULAs 239

Posted by kdawson
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.
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UK Report Slams EULAs

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  • At Last! (Score:5, Funny)

    by Wandering Wombat (531833) <mightyjalapeno.gmail@com> on Tuesday February 19, 2008 @02:03PM (#22478246) Homepage Journal
    Someone in power has been soundly beaten with the Common Sense Foam Cluebat. (Copyright, All Rights Reserved)
    • by Stanistani (808333) on Tuesday February 19, 2008 @02:08PM (#22478324) Homepage Journal
      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'
      • by Sorthum (123064) on Tuesday February 19, 2008 @02:15PM (#22478442) Homepage
        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?
        • by milsoRgen (1016505) on Tuesday February 19, 2008 @02:48PM (#22478904) Homepage

          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...
        • by Anonymous Coward on Tuesday February 19, 2008 @03:30PM (#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.
          • by slcdb (317433) on Tuesday February 19, 2008 @05:46PM (#22481480) Homepage

            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.
            Like it or not (I don't) many US courts have decided that such a disclaimer on the box is sufficient (see ProCD v. Zeidenberg).

            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.
      • by Beardo the Bearded (321478) on Tuesday February 19, 2008 @02:21PM (#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.
        • by chaidawg (170956) on Tuesday February 19, 2008 @02:30PM (#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)
          • 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?
          • by davidwr (791652) on Tuesday February 19, 2008 @02:49PM (#22478922) Homepage Journal
            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."
            • 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: (Score:2, Insightful)

              by sfarmstrong (1106577)
              "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."

              I don't know about other jurisdictions, but Ontario requires that claims under $10,000 be resolved in Small Claims Court. Because the courts are for all people, and your government cares.

              Suing to return your software is very easy, but a
            • 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.

              Not necessarily. Most EULAs state that you can return the software to the place of purchase if you don't agree with the EULA. If the judge lets the store off the hook, he might be willing to put the software maker back on the hook for those legal fees

            • by Anonymous Brave Guy (457657) on Tuesday February 19, 2008 @06:37PM (#22482166)

              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.

          • by SmallFurryCreature (593017) on Tuesday February 19, 2008 @04:51PM (#22480702) Journal

            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.

        • Re: (Score:3, Insightful)

          by cfulmer (3166)
          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.
      • by cfulmer (3166)
        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
        • My agreement was made at the cash register.
          I gave the store money, they handed me a box of software.
        • by slcdb (317433)

          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."

          Except this is only true if the you actually have the legal ability to give me the right to use the software, and also assumes that I already do not have that right.

          I already have the right to use it (17 USC Sec. 117 gives me, as owner of the copy, that right), and the store was the previous owner and would be the only entity capable of purporting t

      • by Sycraft-fu (314770) on Tuesday February 19, 2008 @04:41PM (#22480554)
        The evidence I point to the most is that I work for a state university. As a state employee I can't sign anything for the university, it all has to be sent to legal. Have to make sure that everything is kept in a row as far as what the state agrees to. However they've told us we can just click through on the licenses on software. Clearly, it is because they don't believe they are enforceable, and they are a rather cautious lot.

        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.
    • 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.

      • 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".)
      • by h4rm0ny (722443)

        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.
      • by VJ42 (860241) *

        I use a supplier (Novatech) that will supply PC's without the Micro$haft tax,
        You're not the only one, I use Novatech [novatech.co.uk] as well, they're not far away from where I live so I order online, and it's ready to pick up by the time I get to the Novatech store. The prices are good too.
    • by Guppy06 (410832)
      Not really.

      "Microsoft is an evil, evil monopoly, but Airbus, well... that's something completely different."
    • The NZ Consumer Guarantees Act has applied to software since 2003. http://www.consumeraffairs.govt.nz/businessinfo/cga/goods.html [consumeraffairs.govt.nz]

      If you buy software, or a system, and it does not do what you may reasonably expect then you get your money back.

  • by TheLink (130905) on Tuesday February 19, 2008 @02:07PM (#22478306) Journal
    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*
  • 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?
    • Indeed, it does. The other way, though, as it should be.
    • 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

    • by sconeu (64226) on Tuesday February 19, 2008 @02:25PM (#22478582) Homepage Journal

      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.

    • 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: (Score:3, Informative)

        by WNight (23683)
        They're totally different things. A Shrinkwrap EULA purports to change the nature of a preexisting sale, and is not voluntary. It further restricts access to the thing you purchased until you agree to be bound by additional restrictions.

        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:
    • 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 eas
  • 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: (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)

      by aepervius (535155) on Tuesday February 19, 2008 @02:21PM (#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.
      • by cheebie (459397)
        I always announce "I modify this contract by scratching out every line".
        When I click agree they have agreed to my modified contract.
      • Re: (Score:3, Informative)

        by mr_matticus (928346)
        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

      • by xaxa (988988)

        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 law

    • 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.
    • Re: (Score:2, Informative)

      by Anonymous Coward
      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 co
    • Contract's a contract
      Yes, but only between Ferengi.
  • by tagishsimon (175038) on Tuesday February 19, 2008 @02:10PM (#22478360) Homepage
    UK consumers who have reason to contest contract terms would likely be protected by the Unfair Contract Terms Act 1977 [wikipedia.org].
  • by erroneus (253617) on Tuesday February 19, 2008 @02:13PM (#22478400) Homepage
    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.
  • by PhxBlue (562201) on Tuesday February 19, 2008 @02:14PM (#22478412) Homepage Journal
    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)?
    • by sjbe (173966) on Tuesday February 19, 2008 @02:27PM (#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.
      • 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: (Score:3, Funny)

          by sjbe (173966)

          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".
    • 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...

      • by PhxBlue (562201)
        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.
        • 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 cou

  • by zappepcs (820751) on Tuesday February 19, 2008 @02:14PM (#22478424) Journal
    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.
    • by sconeu (64226)
      That's it!!! We can arrest the terrorists for listening to their iPods while trying to build WMD!!!
  • 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 (Score:3, Interesting)

    by Stevecrox (962208) on Tuesday February 19, 2008 @02:16PM (#22478450) Journal
    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.. (Score:3, Insightful)

    by Mascot (120795) on Tuesday February 19, 2008 @02:17PM (#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?
  • 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.
    • by joe 155 (937621)
      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 consideri
    • by slcdb (317433)
      Another way of looking at it:

      Software companies shouldn't offer to sell software directly to average consumers through retail channels. The software companies have armies of lawyers who fully understand the legal issues involved in the EULA. These lawyers also understand that the average consumer will not have the firm grasp of contract and copyright law, which would be required to fully understand what rights the consumer is waiving by entering into the EULA.

      If the software companies want total control of
  • by Maximum Prophet (716608) on Tuesday February 19, 2008 @02:22PM (#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?
    • by labnet (457441)

      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.

    • by slcdb (317433)
      Unfortunately, I do not think any reasonable U.S. judge would find that such shenanigans would constitute "acceptance" on the part of the electronic agent. It's pretty clear that no reasonable person would believe that the agent would be capable of interpreting the modified contract and making an informed decision as to whether or not it should be accepted.

      I think such an attempt would be very frowned upon by most judges. They might even find that you acted in bad faith, and I'm sure that would lead to noth
  • by LM741N (258038) on Tuesday February 19, 2008 @02:24PM (#22478574)
    Contains a EULA which forbids it from being read.
  • 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 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.
  • by Anonymous Coward
    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...
  • by davidwr (791652) on Tuesday February 19, 2008 @02:37PM (#22478742) Homepage Journal
    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.
    • by rossz (67331)
      Because Borland was so reasonable about their license, I bought two copies of Borland Pascal (5 or 6?). The license allowed me to run the same copy on both my home and work computer, as long as only one copy was being used at any one time, but I didn't want to drag the manuals back and forth. They were reasonably priced and they didn't try to stick me in the backside with lawyers, so I supported them by buying an extra copy.
  • "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
  • by syousef (465911) on Tuesday February 19, 2008 @02:40PM (#22478788) Journal
    ...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.
    • by ratboy666 (104074)
      I am not a liar. I don't consider myself socially inept. But, I used to read EULAs. Of software that I used, anyway.

      Since life is too short, I have adopted that attitude that "Either your software is covered by Copyright, or Copyright with GNU contract provisions, or is Public Domain or I don't use it."

      Simple and easy. I just don't enter into shrink-wrap license agreements anymore. The last good one was the "Borland - like a book" agreement. Worked for me. Saves money too -- some of these EULAs seem larger
  • Not a day to soon. (Score:4, Interesting)

    by miffo.swe (547642) <daniel.hedblom@g m a i l .com> on Tuesday February 19, 2008 @02:43PM (#22478838) Homepage Journal
    "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.

  • by HeavenlyWhistler (716762) on Tuesday February 19, 2008 @02:57PM (#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.
    • by slcdb (317433) on Tuesday February 19, 2008 @04:13PM (#22480208) Homepage
      This is precisely the type of case the USA needs to settle this matter once and for all. Cases like ProCD v. Zeidenberg (the currently going "Gold Standard" for enforceability of EULAs) only affirmed that EULAs are enforceable if they are voluntarily agreed to.

      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:
      1. The court would find that a CD or DVD containing software is, by definition, a "copy" of software [17 USC Sec. 101 [cornell.edu]].
      2. The court would find that ownership of the copy is transferred to the buyer once the buyer has physical possession of the copy [UCC 2-401(2) [cornell.edu]].
      3. The court would find that, as owner of the copy, the buyer has a legal right to use the copy of software [17 USC Sec. 117 [cornell.edu]].
      4. The court would have no choice but to rule that the buyer has the right to use the software even if they refuse to agree to the EULA.

      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.
    • by canajin56 (660655)
      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. No word on the legality of DVD players, which "illegally" transfer blocks of the film into their internal memory while playing it back.
      • Re: (Score:3, Interesting)

        by Chris Burke (6130)

        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)

        by EzInKy (115248)

        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
  • 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 compani

  • Actually, I wonder how they would prove that I clicked the EULA box. I purchased a refurb machine for example from a local reseller. A bunch of software was pre-installed. Some I blew away, some I kept.

    At that point, I agreed to nothing, nor did anyone ask me to agree to anything.

    Like most waivers, EULAs are more to dissuade you from believing you have rights.
  • I despise the signs at every store claiming that "due to copyright law" they will not accept returns. This is complete and utter nonsense and there is nothing in copyright law preventing them from accepting returns on software that doesn't work.

    If retailers were forced to accepts returns and provide refunds for every software item that doesn't work as advertised, doesn't work on a specifc computer, is too slow to use, has lousy technical support, or breaks something else, we would likely see overall qual
  • I have always been curious about the legality of children and EULAs. Is it technically illegal for a child to purchase and install a computer game?

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