CA Court Strikes Blow Against Hidden EULAs 640
vsprintf writes "Ed Foster's Gripelog has a story on California's ruling against some of our favorite software producers and software retailers. EULAs inside the shrinkwrap are no longer good enough. Retailers with rules against accepting returns of open software could be in for hefty fines or settlements. Finally, a break for the buyer. May this spread quickly to other states."
What next? (Score:5, Interesting)
Hooray? (Score:5, Interesting)
In-store EULA (Score:4, Interesting)
Finally! (Score:3, Interesting)
On a related note... (Score:4, Interesting)
If I am EULA free... anyone feel like writing a program that will install Windows from a CD?
Re:What next? (Score:5, Interesting)
Yes. From the article:
Re:What next? (Score:4, Interesting)
How does that help things?
The Age of Wal-Mart (Score:5, Interesting)
Re:EULAs are bunk (Score:2, Interesting)
I think a lot of people are more concerned with Microsoft's Trusted Computing Initiative, which, according to GNU advocates, means your computer essentially does not belong to you - that is, they have ultimate say over what code you run and what you do not. EULAs, especially shrink-wrap ones are a conveniant way to slip this in. By opening, say, a brand new computer with TC built in, you would be agreeing to the EULA, therefore signing over your rights to your own machine. This isn't a problem for most consumers, but I think all would, if they knew about it, be very angry at having it shoved down their throats.
As I recall, shrink-wrap EULAs were a key part of the DMCA, so if this is a step towards taking that down, rock on.
Hidden EULAs (Score:5, Interesting)
IA-definitely-NAL but in a very-very-light commercial law subject I took at Uni we looked at cases where terms and conditions were displayed inside a carpark (which you can't see unless you purchase the ticket). When something went wrong, the ones trying to enforce the terms and conditions lost their cases quite convincingly.
Morally (and with any luck legally) you shouldn't be obliged to go to the hassle of returning something because it contained a EULA or similar that you didn't know about (or weren't told about) that you disagree with. The transaction of cash for product ended when you handed your money over for the product and got the product in return. You shouldn't have to chase your money back because they chose to alter the deal afterwards. *does best Vader breath*
Of course things may be very little different if you obtained something for free or were presented with the agreement before purchase. A new trick used in car parking is to say it is subject to the terms and conditions, and if you don't agree, you can leave without charge in the first half hour. These were the first car parking terms I ever actually bothered to read, as they may actually stand up in court. I am guessing the GPL is pretty solid too, being a distribution license that gives you rights above what you already have, should you choose to accept it.
Re:Hmmm (Score:4, Interesting)
For example, I signed up for a hotmail account many years ago, before most people had any idea what hotmail actually was. Recently the 30 or 60 days or whatever had elapsed between me actually looking at the my mail there (mail? spam!), and so the account expired. I was given the opportunity to keep my account name, but I had to agree to a Microsoft EULA. So, I actually read it.
Basically, signing it gave Hotmail (and MS) permission to search my computer to make sure the software I was running was "legitimate" or something and then act on this information if they found anything.
Screw that!
Of course they wouldn't actually have been able to *do* that, and I don't run any MS software anyway, but buggered if I'm giving them permission to have a look at some point if they work out a way to do so.
Plain English Campaign (Score:4, Interesting)
I mean this is the US right??!? And NO-ONE had gotten a lawyer before...? I thought you guys sued if someone looked at you funny. Or made posts like this... Ooops..
Seriously though, it's a great point but EULA's aren't ever in plain english. I accept that the legalese is to an extent needed due to interpretation worries and the like but you could get the folks at he Plain English Campaign http://www.plainenglish.co.uk/ [plainenglish.co.uk] to turn these damn things into something that we might actually read and understand. EULA's might not be something most of us want/need to 'get by' on a daily basis but it'd certainly increase the chances.
Re:On a related note... (Score:2, Interesting)
So writing an install program for Windows is pointless unless of course there are some other irks in the license agreement you do not like.
Ying-Yang (Score:2, Interesting)
Or, if they are smart:
They could create a program for these retailers, where they would enter the product's serial number, and it would instantly check if that product had been regestered, hence installed. This would be easy for M$, seeming as how they already keep tracks on each product key issued.
Re:In-store EULA (Score:2, Interesting)
-ben
Re:What next? (Score:5, Interesting)
not shrinkwrap... (Score:5, Interesting)
Many, many, many years ago I worked for a regional computer retailer (way out of business). They had a roll of shrink plastic and mounted blow dryer. They had nicknamed it the relicenser.
Paper containers with gummed flaps are a much better way of detecting an opened package.
eric
A variant on the classic paradox (Score:3, Interesting)
Ever wonder what happens when an irrestible force meets an immovable object?
I can't wait to see how this pans out.
Re:The Age of Wal-Mart (Score:2, Interesting)
Re:Common sense... (Score:3, Interesting)
I'd guess that this way of presenting legal info is probably also insufficient for it to be binding. Hopefully it'll be tested in court soon...
Keep the EULAs at the service counter? (Score:5, Interesting)
Now you don't have to open the box, you just have to go to some counter and ask specifically for the EULA. Though, what happens if someone gives you the software as a gift? You would now have to go to the store and get the EULA prior to opening the box as the giver of said gift, probably didn't read the EULA...
Its kind of like the "Nutritional Information" signs at McDonalds... you really have to press to get the information... then once you do, you don't want to eat there.
HockeyPuck ---> .
Re:The Age of Wal-Mart (Score:1, Interesting)
Why am I paying tax anyway since I have no ownership rights just a license to use? Does this vary state by state or do you always pay tax when you purchase license rights to intellectual property?
Why license agreements aren't always valid. (Score:5, Interesting)
(written on the back of a check prior to entering CompUSA)
"By cashing or depositing this check, CompUSA agrees to give me anything I want in the future for free, or, if they refuse to fulfill that requirement, to pay me five million dollars."
"If CompUSA does not agree to this requirement, they should send the check back to the address printed on it without cashing or depositing it. If they do so, they will not be bound by this agreement."
Raise your hand if you seriously think such a thing would stand up in court.
Re:What next? (Score:3, Interesting)
Oops, shoulda been clearer. I meant, some people actually think that it's okay to have that kind of business. I listened to a dude go off about how it was stupid that people were bitching about Steam's EULA. He seemed to think that it was perfectly okay for them to demand that. He wasn't the only one with that opinion. I just assumed that it was because he liked that game. But, I am sort of getting the hint that this opinion is more wide spread than I had initially assumed. So I just wanted to ask: Why is this okay?
Re:Wal-Mart's Return policy (Score:1, Interesting)
Re:What next? (Score:5, Interesting)
Actually... (Score:3, Interesting)
(I've intentionally listed terms out of order and added emphasis to make a point.)
In short, Microsoft has the right to change your system in any way they see fit without your knowledge or consent. This includes, but is not limited to, removing your root access. Once they change your system, it is not legal to downgrade to the previous system. Spyware of any sort is perfectly legal if the spyware company is Microsoft or one of its affiliates.
With a license like that, why would anyone use the OS? I did RTFA, and it only shows that the software vendors are being forced to be more upfront with their licenses in stores. Nothing has changed the legally binding status of the EULA. It does not change the fact that Microsoft will ambush you with its licensing changes in security updates and service packs. Perhaps it's time to consider Linux [gnu.org] or Mac OS X, [apple.com] eh?
The 20% off-topics (Score:3, Interesting)
Re:A variant on the classic paradox (Score:3, Interesting)
If they had been more reasonable in the beginning and done more to fix problems before shipping and not been so heavy-handed and one-sided in their licenses ("we take, you give" and little else) maybe they wouldn't be in this fix.
They might have wound up in a nasty corner, or may be on their way there, but they crawled every inch of the way by themselves.
Do something stupid, and expect to pay for it now or later.
Re:What next? (Score:3, Interesting)
Have you seen the receipts that come out of Best Buy (mass consumer cattle herder) when you buy CDs/DVDs/software. It says... "Unopened software may be returned or exchanged. Open product may be exchanged for the same item only. Softare returns or exchanges are only valid within 30 days of purchase" (may vary, mine is canadian) Basically it says, they can't accept opened software. Now this reciept is about 12 inches long. I've seen them up to 24 inches long (I unfortunately work for best buy canada) To print a EULA that is currently 20 pages long on 8.5x11" paper, then putting it on something 4" wide..... well, you can do the math, I'm going to bed.
Re:What next? (Score:3, Interesting)
Not only are the corporations huge, but copyright grants additional monopoly leverage (to whoever argues that there is competition, it is monopolistic competition as evidenced by strong 'brand' preference. Software titles are not interchangable). The result is that even when all the terms are spelled out, people are very strongly compelled to accept. The seller is able to implement a take it or leave it policy and because each buyer is tiny, they have no clout.
What is needed is communist-style regulation. The mildest solution that will solve the EULA problem is to outlaw EULAs and all restrictive contracts (as opposed to ones which grant rights, like dsitribution agreements between corporations and licenses like the GPL) and leave copyrestrictions in place. A better solution, in my opinion, would be to eliminate both copyrestrictions and EULAs. Software and media that must be made for an entity to function will still get made. Much software and media will be made for artistic, propoganda, and charitable ends. The small chunk that is left can be government funded.
A different attack on EULAs (Score:3, Interesting)
This is good news, but it won't necessarily eliminate some of the obnoxious terms found in EULAs. I wonder if another approach might help there. One principle of contract law (at least in the Anglo-American system) is that provisions contrary to law or [wikipedia.org] to the public interest are invalid [auburn.edu]. (See also 17A Am. Jur. 2d Contracts 257 (1991).) For example, here's a discussion of a case [caldivorceguide.com] in which a couple had signed a contract requiring that they be faithful to each other and providing damages if one or the other was unfaithful. The man was unfaithful again, his wife divorced him, and then sued to enforce the contract. The California courts refused to enforce the contract on the grounds that it conflicted with the public policy underlying California's no-fault divorce law. The crucial thing here is that the contract was not specifically prohibited by any statute; the court's ruling was based on its inference of public policy.
The courts are careful about taking too broad a view of the public interest for this purpose because if they did they'd effectively be legislating after the fact. For example, they will not interpret a life insurance policy as a health insurance policy even though one might argue that it is in the public interest for death to be prevented rather than the survivors compensated. My question is, are some of the provisions of EULAs sufficiently obnoxious that the courts can be persuaded that they should be invalidated as contrary to public policy? It seems to me, for example, that provisions forbidding the user from monitoring his own network traffic should be considered contrary to public policy since they adversely affect both the individual user and the general public.
Re:A variant on the classic paradox (Score:3, Interesting)
Re:On a related note... (Score:3, Interesting)
An amusing thought - DMCA clause (f) Reverse Engineering is normally completely worthless and bogus because it only applies to the decryption of software. So you just cited practically the only case in which that exemption *might* actually do anything. heh.
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Re:What next? (Score:3, Interesting)
Sounded like lawsuit territory. If I had chosen not to accept the EULA, and the store refused my return, I probably would have had the right to sue to see if:
1. The store has to accept the return
2. The company that produced the software has to refund me
3. The EULA is invalid, so it falls back to copyright law, and I'm free to ignore the provision that pissed me off.
4. I'm screwed (to be honest, I don't think this would be very likely. If the store is selling licenses to a product with an agreement that says "return me if you don't agree" that I can't reasonably read before purchase, well, they have to accept returns.