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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."
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CA Court Strikes Blow Against Hidden EULAs

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  • by Anonymous Coward on Monday December 20, 2004 @08:59PM (#11142601)
    by reading this post you agree not to moderate it down. only moderations of +1 insightful will be allowed.
  • What next? (Score:5, Interesting)

    by krautcanman ( 609042 ) on Monday December 20, 2004 @09:00PM (#11142607)
    What's next? Will we have to read and agree to the EULA before we can buy?
    • In some cases that may not be a bad idea. What if the EULA says "by buying this u sign your left nut away to us to do with as we please.
      • by Anonymous Coward
        What if the EULA says "by buying this u sign your left nut away to us to do with as we please.

        Well hopefully the people at the software company notice where I've added and initialed a change to the EULA which says "If you try to collect my left nut then I am entitled to collect both your nuts and your teenaged daughters."
      • by SirGeek ( 120712 ) <> on Monday December 20, 2004 @11:33PM (#11143837) Homepage
        In some cases that may not be a bad idea. What if the EULA says "by buying this u sign your left nut away to us to do with as we please.

        Then, I'll have my wife buy it. If she as a left nut, she sure as hell doesn' need it ...

    • Re:What next? (Score:5, Interesting)

      by zbuffered ( 125292 ) on Monday December 20, 2004 @09:06PM (#11142676)
      What's next? Will we have to read and agree to the EULA before we can buy?

      Yes. From the article:

      In addition, Symantec, Adobe, and Microsoft agreed to provide EULAs for the applicable software products on their web site and notices on their respective software packaging of the web addresses to such EULAs so consumers can review such EULAs prior to purchase of the software.
      • Re:What next? (Score:3, Insightful)

        by vsprintf ( 579676 )

        What's next? Will we have to read and agree to the EULA before we can buy?
        Yes. From the article: . . .

        Not necessarily. From the article:

        The Settlement Agreement provides to the General Public of California, amongst other things, the right of consumers to return applicable Symantec, Adobe and Microsoft software for full monetary refunds even if the shrink-wrap has been opened

        It would seem that if you don't agree to the EULA, you are entitled to return the product. Why are some so pessimistic and n

        • Re:What next? (Score:3, Interesting)

          by Firethorn ( 177587 ) *
          I agree. I've seen a couple of EULA's that say that if you don't agree with it, to return it to the place of purchase for a refund. This struck me as odd, seeing as how the store had a "no refund" policy on software.

          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
      • Re:What next? (Score:3, Insightful)

        by jedidiah ( 1196 )
        There are two entirely separate issues here. Sure, EULAs can be pretty heinous. However, there is the other issue of software companies and merchants getting off the hook for UCC warranties. As a matter of public policy, I don't think this should be allowable regardless of the warranty.

        If you find out that a bit of software is crap, or unsuitable then you should be able to return it.

        If you find that EA released some game so buggy that it needs to phone home for patches, then you should be able to get your
    • Ideally (Score:5, Insightful)

      by nuggz ( 69912 ) on Monday December 20, 2004 @09:06PM (#11142681) Homepage
      Well in this case a few things could happen.

      1. Companies will make simple consumer readable EULAs.

      2. People will sign away all their rights without checking the fine print.
      2a Resulting in a raft of stupid consumer protection.
      2b Huge public backlash when the companies try to press their rights.

      3. Some people will not accept these agreements and the EULA might become a factor on what software you purchase.
    • Re:What next? (Score:4, Interesting)

      by Kyn ( 539206 ) <kyn@y[ ] ['our' in gap]> on Monday December 20, 2004 @09:10PM (#11142711) Homepage Journal
      What if I'm buying the software as a gift?

      How does that help things? /hates EULAs
    • Re:What next? (Score:3, Insightful)

      by Lumpy ( 12016 )
      I so hope so. I really hope they DEMAND that you read and sign the EULA right there before you buy software.

      this may be the one thing that will wake up the idiotic masses and realize the evil-doom that Software licenses really are.

      Ok, a little over the top, but it's true. If every consumer read and understood what they were agreeing to with software EULA's there would be a backlash that would change things drastically.

      On the other hand, the human race is so pitiful they may simply happily accept that t
      • I so hope so. I really hope they DEMAND that you read and sign the EULA right there before you buy software.

        I think you have an excellent point. Just imagine standing at the cashier for 25 minutes, while carefully reading the EULA. For bonus points you can ask the clerk for legal help:

        "Excuse me sir: What means non-exclusive int this context?"

        Sure, the folks in line will go ballistic and the shop won't be happy: But maybe they finally get the point and either kick the products out or start to apply real

    • bigger screens on the electronic signature capture pads so they can display the EULA.
    • Re:What next? (Score:5, Interesting)

      by mapmaker ( 140036 ) on Monday December 20, 2004 @10:39PM (#11143398)
      If the customer pays by credit/debit card, they could print the EULA on the receipt. Then when you sign the receipt you're also signing the EULA.
      • Re:What next? (Score:3, Interesting)

        by DarkMantle ( 784415 )
        I know brother/sister post is similar but....

        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
  • Frys (Score:5, Funny)

    by Cyberglich ( 525256 ) * on Monday December 20, 2004 @09:00PM (#11142612)
    i can't wait to put this to the test at frys
  • EULAs are bunk (Score:3, Insightful)

    by CrazyJim0 ( 324487 ) on Monday December 20, 2004 @09:01PM (#11142629)
    I don't care what they say, I just click ok to use the software. I don't abide by what they say. Its all lawyer talk anyway. In case your computer explodes, we don't want to be held responsible.
    • 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 cons

    • While in spirit I agree with you, it appears that the courts believe that shrink-wrap EULA's are enforceable in at least some circumstances.

      I've read enough of them to see some pretty outrageous terms, and I'm certain (though I'm not a lawyer) that many of the terms are simply unenforceable. Others are silly. Some actually mean something (ie only installing an OS on one CPU for which it is licensed) and are enforcible.

      It's the downright stupid stuff, plus the stuff that gives them way too many rights t

    • I don't care what they say, I just click ok to use the software. I don't abide by what they say. Its all lawyer talk anyway. In case your computer explodes, we don't want to be held responsible.

      This is not a troll. "First Sale" doctrine means EULAs are meaningless. The publisher cannot restrict my rights to do whatever I please with the software (copyright not withstanding) after I purchase it. A purchase is not a license.
      • This is why you do not actually purchase teh software.

        Just a copy of it so First Sale doctrine does not apply.

        Kind of weird hu?

        Eula's were invented for large business licenses and this makes sense. Microsoft started using EULA's knowing they were BS for average Joe's but no one challenged the EULA's so it gave them all sorts of legal power.

        • Re:EULAs are bunk (Score:5, Insightful)

          by pegr ( 46683 ) * on Monday December 20, 2004 @09:37PM (#11142896) Homepage Journal
          This is why you do not actually purchase teh software.

          Just a copy of it so First Sale doctrine does not apply.

          Here we go again...

          Ask Best Buy if it's a sale. (It is.) Ask Fry's if it's a sale. (It is.) Ask a Federal judge if it's a sale. (It is.) If it looks like a sale, it's a sale. You think Best Buy would refuse to sell software to my kid, who, being under eighteen cannot enter into a license agreement?

          Legally, there are certain requirements for a contract, which is what a EULA is. Trouble is, EULAs don't meet the criteria. (Must be able to negotiate, must be of legal age, must show proof of acceptance of terms, must actually know who you are entering into an agreement with, etc.) EULA's are totally fiction. How many court cases have there been to seek damages from someone who didn't uphold the EULA? How about zero? Why? Because the publishers know they would lose and that would deflate the perception that these things are meaningful in any way.

          Kind of weird, huh?
          • Re:EULAs are bunk (Score:5, Informative)

            by wiggles ( 30088 ) on Monday December 20, 2004 @10:16PM (#11143180)
            How many court cases have there been to seek damages from someone who didn't uphold the EULA?

            Forgot about this one []?

            Yeah, it's under appeal, but the bnetd guys lost big on this one, because the EULA was violated in the creation of a competing product. The lower court ruled that the EULA was absolutely enforceable, and that the bnetd guys were absolutely bound by it.
      • Re:EULAs are bunk (Score:3, Informative)

        by EvanED ( 569694 )
        I'm not sure that's true. You can waive your first sale rights [] (along with fair use rights and interoperability rights).
    • Why is this modded as troll? Most users do exactly the same thing. They don't care, nor do they abide by the insanely limiting EULA's and sometimes just break them because it's easier than not.

      I only read EULA's that involve interactions with my personal banking online, credit cards etc. For example, eBay, paypal, my online bank, other internet stores that save your information. Many others do the same.

      But EULA's for software? No. I've never even read the GPL, but know enough about it to realize it's one
    • Re:EULAs are bunk (Score:5, Informative)

      by rpdillon ( 715137 ) on Monday December 20, 2004 @09:59PM (#11143053) Homepage

      Actually, courts are upholding EULAs (even those undisclosed at point of sale) as enforcable. I would love to back you and say "Screw EULAs!", but recent events like those on 30 Sept. are reminding us that courts are increasingly siding with the big companies on this one.

      More disturbing, it is extremely important to understand what the EULAs say more than ever before, because companies like Blizzard are injecting clauses into the EULA that explicity say that by clicking "OK" and using the software, you are giving up specific rights like your right to reverse engineer for interoperability, and your rights protected under the first sale doctrine. This came out in the recent decision in the Bnetd case.

      In fact, multiple provisions protected under copyright law and the DMCA that allowed certain actions are being specifically forbidden in EULAs because companies don't want you to reverse engineer their products, no matter what. Courts are allowing you to "sign" away these protections allowed for in federal law in EULAs, even if the EULA was not available at point of sale.

      This isn't a great forum to discuss this type of thing because it is really quite intricate, but I did write two [] pieces [] on this in my blog over at Etherplex that treat it in more detail. If you're not in touch with what the courts have been doing recently, it may be of interest.

    • Actually... (Score:3, Interesting)

      by MacDork ( 560499 )
      You might want to read those things sometime. Look at Microsoft's Windows XP Professional EULA [] for instance:
      • Internet-Based Services Components. The Product contains components that enable and facilitate the use of certain Internet-based services. You acknowledge and agree that Microsoft may automatically check the version of the Product and/or its components that you are utilizing and may provide upgrades or fixes to the Product that will be automatically downloaded to your Workstation Computer.
      • UPGR
  • Hmmm (Score:2, Insightful)

    She sounds like an iritating biddy but she makes a good point. Seriously though, how many people actually take back the software because they don't agree with the EULAs? I click 'ok' all the time. I could be agreeing donating my left nut to Microsoft but that doesn't mean I'm going to.
    • Re:Hmmm (Score:3, Insightful)

      by almostmanda ( 774265 )
      Imagine you buy a piece of software and get home and install. Upon reading the EULA (or seeing your firewall freak out), you discover the software is full of spyware, and you can't use it without allowing it to phone home to the parents company with a record of your weblogs. No indication of this on the box whatsoever, it's all in the EULA. I know *I* would want to be able to return this, or better yet, know it ahead of time so I don't have to purchase it.
    • I could be agreeing donating my left nut to Microsoft but that doesn't mean I'm going to.

      Tell that to this [] guy []...
    • Re:Hmmm (Score:4, Interesting)

      by wookyhoo ( 700289 ) on Monday December 20, 2004 @09:18PM (#11142764) Homepage
      It's things like giving them permission to check your computer for their software that I couldn't handle.

      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.
  • Hooray? (Score:5, Interesting)

    by Rie Beam ( 632299 ) on Monday December 20, 2004 @09:03PM (#11142643) Journal
    So I guess this means I get to save a few hundred bucks the next time I buy a PC that "luckily" comes bundled with a $200 copy of Windows XP that I have "purchased" by opening the top of the box?
    • Don't count on it just yet. The article says that the companies will provide copies of the license on the internet to review before you buy and place labels on the outside of the box. So it may just be that your next Dell box has a big nasty looking Surgeon General's warning on it.

    • Interesting scenario, but what's to prevent an attorney from adding a few lines of boilerplate to the back of the sales contract/receipt to require acceptance of the EULA for any and all software 'sales'?
  • In-store EULA (Score:4, Interesting)

    by Biomech Dragon ( 177813 ) on Monday December 20, 2004 @09:03PM (#11142647)
    What this probably means is that the EULAs for all the products in the store will be available to be read before you buy the software. (If not on the outside of the box, that being too wordy for most pieces of packaging.) In other words, if you think you might have a problem with what the EULA is going to say, you'd better spend 15 minutes poring over it at Fry's.
    • Re:In-store EULA (Score:5, Insightful)

      by Nogami_Saeko ( 466595 ) on Monday December 20, 2004 @09:09PM (#11142703)
      Yup, all it means (from the article) is that the companies are now putting their EULAs on their websites and a sticker or label on the box that says "the EULA is here (insert URL), you may wish to check it before purchasing this product".

      Not exactly a vast improvement...

      • Re:In-store EULA (Score:2, Interesting)

        by g0at ( 135364 )
        That's even worse than having it INSIDE the box. At least the current way, you have a paper copy in hand that you can take into court. A web site can change or vanish at any time.

      • maybe it is.... (Score:3, Insightful)

        by ecalkin ( 468811 )
        Daylight is that last things they want.

        If you look at some of the outrageous EULAs out there, I can't help but to believe that some of these companies would be embarassed to 'publish' them.
        If you (or especially your company) was evaluating products and you could get a copy of all the EULAs up front, don't you think that would be outstanding?

        And as far as web publishing, it seems to me that for it to be a legal document, it might have to be digitally signed.

        On the other hand if you buy softw
  • Finally! (Score:3, Interesting)

    by MrRuslan ( 767128 ) on Monday December 20, 2004 @09:03PM (#11142648)
    It's about time. Companies have gotten away with this for a very long time. What if someone buys a box with software and don't agree with the EULA. They can't return the box and they might have to go trough hell to get there money back. It wasn't right and I'm glad the government sees this now. Most likely other states will follow this ruling.
  • On a related note... (Score:4, Interesting)

    by Thunderstruck ( 210399 ) on Monday December 20, 2004 @09:04PM (#11142650)
    I've purchased a shrinkwrapped software package. It includes an installation program which requires me to accept the EULA to run. Instead, I snoop around on the CD and find the files I need, or otherwise find a way to make use of the software without using the install/eula program(me). I in any way bound by the EULA indirectly, or is my use of the software then only bound by copyright?

    If I am EULA free... anyone feel like writing a program that will install Windows from a CD?

    • Unfortuneately, ignorance isn't an excuse that courts generally recognize. The software is copyrighted, and you, the user, are responsible for understanding the license before you USE it. The issue is that before this ruling, customers were deliberately prevented from reading the EULA before they purchased software, then not allowed to return it UNUSED.
    • DMCA says that it's illegal to circumvent copy protection:)

    • You are still bound by copyright law not to install Windows on more than one system.

      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.

    • by Kjella ( 173770 ) on Monday December 20, 2004 @10:40PM (#11143405) Homepage
      As much as the funny legal theories on slashdot show up, no you can not circumvent an EULA that way.

      If you know there is an EULA in place, and you do some silly thing to avoid not clicking "I agree" like letting your cat or a minor click it or replace the licence text or copy the files directly or whatnot, it doesn't help.

      The only plead you can make is ignorance, that you had not been made aware of an EULA at all. If you take an action which will be seen by the court as a deliberate circumvention, you are going to be bound by it.

  • Article Text (Score:2, Insightful)

    A Fatal Blow to Shrinkwrap Licensing?

    By Ed Foster, Section Columns Posted on Mon Dec 20th, 2004 at 08:02:57 AM PDT

    Having so often been the bearer of bad news from the legal front, I am thrilled to have some good news to report for a change. The old-fashioned shrinkwrap license appears to have suffered from what may well be a mortal wound. Microsoft, Symantec, Adobe, CompUSA, Best Buy, and Staples have agreed in the settlement of a California lawsuit to change their ways, and you can already see th

  • Mirrored article (Score:2, Informative)

    For those who can't see the article:

    Mirrordot Mirror []


  • like any of us is going to pick "I Dissagree" AFTER WE HAVE PAID FOR AND TAKEN THE PRODUCT HOME???

    It's pretty silly, Hurray for the courts!
    • like any of us is going to pick "I Dissagree" AFTER WE HAVE PAID FOR AND TAKEN THE PRODUCT HOME???

      It's pretty silly, Hurray for the courts!

      So there's nothing you won't agree to? That's pretty sad. At least one woman had the principles to refuse. By all means, sign your rights away to your corporate overlords. All I can say is that you should be willing to stand up and fight like a woman for your rights.

  • The article states that the current shrinkwrap scenario is fine as long as they put a URL to the license terms on the box. This is progress, but it's a baby step towards a real solution. Either accept returns or disclose the license prior to purchase.
  • The Age of Wal-Mart (Score:5, Interesting)

    by Wylfing ( 144940 ) <brian&wylfing,net> on Monday December 20, 2004 @09:11PM (#11142714) Homepage Journal
    I wonder how this will really affect anyone. The last time I was in a Wal-Mart I saw a sign by the service desk that said "Due to copyright laws, we cannot accept returns of opened software or music." I'm no lawyer, but that to me seems like a false statement. There aren't any copyright laws that prohibit merchandise returns. But good luck convincing Wal-Mart otherwise.

    • by darnok ( 650458 ) on Monday December 20, 2004 @09:40PM (#11142917)
      I live in a Wal-Mart-free country, but what's the issue here? Returning unsuitable merchandise is OK just about everywhere, and any store pretending otherwise hasn't got a legal leg to stand on. They can put up all the in-store signs they like, but that doesn't override my right to a refund.

      I return opened-but-not-installed software after refusing to accept the EULA terms, and some spotty Wal-Mart checkout person refuses to give me a refund. I then call his supervisor, and continue until I either get someone who says "OK" or I've spoken to the most senior Wal-Mart person in the store. If I don't get the OK, I get my lawyer and we take it from there.

      Yep, I'll be potentially taking on the combined legal might of Wal-Mart, so maybe I should be very very scared. However, in such a clear cut case against such a big corporation, I'd have no trouble finding legal representation that'd be happy to work on a pro bono basis - think of all those class actions against huge tobacco and asbestos companies over the years.

      Downsides for me, assuming it goes down this path:
      - have to search through phone book for legal rep
      - pain of dealing with legal people in general
      - time, stress and general mental wear and tear (all claimable as damages *when* I win)
      - loss of access to my refundable money while it all gets cleared up

      Downsides for Wal-Mart, assuming it goes down this path:
      - bad PR (and any legal person working on this on a pro-bono basis would be doing handstands to get this case on TV and in print media. "Big bad corp versus downtrodden individual" still makes press headlines...)
      - loss of availability of its people while they're tied up with legal stuff
      - possibility of a class action suit emerging
      - possibility of more serious charges (racketeering?) being brought after they go down this path beyond a certain point
      - possibility of consumer-protection government agency intervention (e.g. ACCC in Australia)

      With Wal-Mart presumably being staffed by non-drones at some level of seniority, I'd have to think they'd work out that just giving me the refund I've requested in a timely fashion would be much less painful for them.
  • returns? (Score:2, Insightful)

    by mottie ( 807927 )
    doesn't this mean that if I lived in california I could go out, buy software, copy the cd, and then take it back?

    seems like its an incentive for companies to implement online activations, hardware keys, etc.
  • Common sense... (Score:5, Insightful)

    by darnok ( 650458 ) on Monday December 20, 2004 @09:13PM (#11142729)
    ...says that EULAs should have to be signed prior to the forking over of the loot. I pick up a box containing software, walk to the shop counter, pay my money and from that point on the software is mine to use as I wish (save for the protections granted by copyright to the seller, and various "fair business" obligations that serve to protect the buyer).

    If there's some legalese that I'm supposed to agree to before installing and using the software, then it should be presented to me before I hand over the money.

    Intellectual property isn't THAT much different to real property: when I buy a washing machine, I don't take it home, plug it in and then find out that it's illegal to use it to wash blue clothes...
  • Hidden EULAs (Score:5, Interesting)

    by OverflowingBitBucket ( 464177 ) on Monday December 20, 2004 @09:15PM (#11142748) Homepage Journal
    Not only is it ridiculous to attempt to change the terms of sale after sale with hidden EULAs, AFAICT it is generally not legally binding to do so, unless specifically legislated to do so. I seem to recall specific legislature in some state in America, easy mod points to those who know it.

    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.

  • by eSims ( 723865 ) on Monday December 20, 2004 @09:17PM (#11142759) Homepage
    here is a comment posted at the bottom of the article that is worth repeating: By request?? (none / 0) (#5) by Anonymous User on Mon Dec 20th, 2004 at 03:56:50 PM PDT

    What's with the "by request" crap? I don't want to go into Best Buy and chase down an "associate" every time I want to know about licensing of a product. If the software company lost, and consumers won, how come consumers are running around looking for help?

    Post the license stuff right there on the shelf with the software, or better yet, put it on the box in the first darn place. If its so complex that it won't fit with readable fonts, maybe its better to go buy something else.

    Good grief, we aren't winning, we are getting punished for objecting....

    • What's with the "by request" crap?

      S.O.P. for the entire legal world.

      Ask to see every EULA at the store, every time you come in, and get as many friends of yours to do the same as possible.

      Eventually, the GM will just post them next to the software.
  • by Billly Gates ( 198444 ) on Monday December 20, 2004 @09:19PM (#11142770) Journal
    If the EULA's are no longer valid, than spyware can be interpretted as a worm or trojan horse which would make the programmers and companies who write teh software liable for criminal and civil damages.

    Ouch. And good for us.

    I was under the impression any license agreement was not valid anyway without a notary present for a signature. Clicking a botton can not be interpetted as signing a document. Especially if no lawyer or notary is present.

    I think the whole concept of a EULA is bs. MS who started this with average joe consumer knew it too but gave it a shot.

    Corporate customers who sign legal agreements is a whole different matter.

    • I was under the impression any license agreement was not valid anyway without a notary present for a signature.

      Almost all contracts are valid if both parties agree to it.
      And yes, that includes verbal contracts, though there are other exceptions.

      But proving the other party agreed is a whole lot simpler when you have a signed and notarized contract.

      For example, suppose I claim that I never clicked on the "accept" button.
      Could you prove that I did so in a court of law?

      -- Should you believe authority w

    • by Lando ( 9348 )
      I was under the impression any license agreement was not valid anyway without a notary present for a signature. Clicking a botton can not be interpetted as signing a document. Especially if no lawyer or notary is present.

      Actually, as of October 2000, in the US clicking a button can legally be acknowledged as accepting a contract. The little thing that makes this possible is called the Electronic Signature in Global and National Commerce Act. President Clinton signed it into law on June 30th, 2000.

      It wa
  • by Smiffa2001 ( 823436 ) on Monday December 20, 2004 @09:20PM (#11142778)
    "But Baker did something most others before her had not - she went and got a lawyer."

    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 [] 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.
  • Ying-Yang (Score:2, Interesting)

    by jedkiwi ( 825683 )
    Although this is great for the prospective buyer who simply doesnt like the EULA, it is also a blow for others. Why? because Adobe, Symantec and microsoft are now going to have to implement greater security measures to keep out piraters.

    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
  • by mcc ( 14761 ) <> on Monday December 20, 2004 @09:27PM (#11142834) Homepage
    It sounds like here the entire issue was not the enforceability of the EULAs, but the idea that you could be presented with this contract and not be given the ability to return it to the store. This is not a victory; this just predicts a situation where persons objecting to terms in EULAs will be universally responded to with well why don't you just take it back to the store.

    A victory would be something saying that first sale rights apply to software, just like they do to books, and if you take a piece of software to the front counter of a store and purchase it you just bought a copy of that software, even if the software vendor includes a piece of paper saying that you didn't.
  • by CypherOz ( 570528 ) on Monday December 20, 2004 @09:33PM (#11142874) Journal
    Most software EULAs are not fully legal in .au due to the Australian Competition and Consumer Commission [] and associate trade practice law which lets a consumer return goods if faulty or do not work as specified.
    Under the Act the consumer is entitled to expect to enjoy quiet possession of the goods and to own the goods outright, subject to lawful restrictions made known to the consumer before purchase.

    As a consumer, goods that you purchase must:
    * be of merchantable quality--goods have to meet a basic level of quality and performance given the price and description of the goods
    * be fit for the purpose--goods must do the job you made clear to the supplier you wanted them to do or that are implied from the circumstances in which you purchased the goods
    * match the description or sample given to you before purchase, whether through a catalogue, labelling, packaging, on a website or in person.

    Remedy or appropriate action

    If you believe that one of these conditions or warranties has not been met, you have a choice of possible actions that may be available depending on the circumstances. If you find you have a problem with goods or services, you should stop using the goods and approach the seller or the service provider as soon as possible to explain the fault or problem. You can also explain your preferred remedy to the situation or problem, taking into account that the Act is not designed to protect consumers who are careless or unreasonable in their demands.

    You may want to ask the service provider to repeat the service, or pay for the service to be repeated. You may want to ask that the goods be repaired or replaced or pursue a refund. Sellers are not required to provide you with a refund if you have simply changed your mind or you find a similar or the same item more cheaply elsewhere.
    Also under .au common law you cannot contract out of negligence. Simply: If you software is faulty, and the vendor knows (or can reasonable know about the fault) and does damage then the vendor is liable.
  • by mark-t ( 151149 ) <markt@nerdfl[ ]com ['at.' in gap]> on Monday December 20, 2004 @09:41PM (#11142924) Journal
    If they allow consumers to return software after it has been opened, the floodgates open up for absolutely HUGE amounts of software piracy... people would buy software, install it (and probably duplicate the CD), then return it claiming they didn't agree with the EULA on install. What's to stop them? Getting rid of EULA's completely?

    Ever wonder what happens when an irrestible force meets an immovable object?

    I can't wait to see how this pans out.

    • I'm not exactly sympathetic, given how frequently they've abused peoples' expectation of being able to return defective merchandise, and I know they KNOW they ship with unfixed bugs in the software.

      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
    • The obvious solution to this particular problem is to provide two sets of packaging... the display box that contains the EULA printed and shrinkwrapped documentation and an internal package with just the CD/DVD set which is also shrinkwrapped or sealed in a way that cannot be tampered with non-obviously that says in big clear letters... READ THE LICENSE before opening.
  • by HockeyPuck ( 141947 ) on Monday December 20, 2004 @09:52PM (#11143004)
    Could a store post a sign at the front door or somewhere in the aisle that says "All EULAs are available at the service counter"?

    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 ---> .
  • by HangingChad ( 677530 ) on Monday December 20, 2004 @09:55PM (#11143021) Homepage
    At least this way a consumer could go home and read the license off the URL before opening the package.

    It would almost be better to have people bringing the unopened software back saying something about reading the terms online and not agreeing to all that. When EULA's start translating into lost business they will change.

    Big software buyers are also starting to demand changes in the licensing agreements. When confronted with a "if you don't like it get out" from a big buyer companies will roll over. You don't hear about it as much but it's happening more and more. Not as much with MSFT, but if was a deal breaker I'd bet money they'd roll. If anyone else has pushed them on that I'd love to hear about it.

  • (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.

  • by belmolis ( 702863 ) <billposer AT alum DOT mit DOT edu> on Tuesday December 21, 2004 @01:29AM (#11144589) Homepage

    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 [] to the public interest are invalid []. (See also 17A Am. Jur. 2d Contracts 257 (1991).) For example, here's a discussion of a case [] 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.

"Yeah, but you're taking the universe out of context."