UK Report Slams EULAs 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.
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'
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?
Where's my signature? (Score:3, Interesting)
Re:They didn't review the GPL (Score:1, Interesting)
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).
T&C (Score:3, Interesting)
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.
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?
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. 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:I am not handsome enough to be a lawyer (Score:5, Interesting)
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.
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."
Re:I am not handsome enough to be a lawyer (Score:1, Interesting)
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.
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.
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.
Re:I Do Not Agree letter (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 presumably done so as to avoid the situation where a user was violating copyright every time they ran a program. Under that judge's decision, how would you ever legally run software that didn't come with any EULA? Do you know the name of this case? I have a feeling it was a bad decision that the defendant simply didn't know or want to appeal.
Sign it? (Score:2, Interesting)
Sign it? I've never signed a EULA. I might have clicked 'I agree' but that carries no legal weight, at least in the UK. They need my signature.
Re:I am not handsome enough to be a lawyer (Score:3, Interesting)
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.)