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E.U.L.A.s or By clicking this thread, you agree to the End User License Agreement
TKane
Registered User regular
Registered User regular
You know, I've always just skimmed these. They're just...... Far too long and full of lawyer speak and double talk that make my head hurt. What exactly do the EULAs entail? I get the gist of 'em, "Install this on one computer. Don't copy and spread on the internet. Only you can use this software."
But is there anything really damning hidden deep within the layers and layers of lawyer double speak? Because that's a lot of words for what I basically summed up in three sentences.
Or, if you've ever taken the time and read them and came across something funny, some "easter egg" tidbit tucked away inside the EULA that someone knew would only be found by someone who actually reads the agreement and would find amusing, post about it here.
So, let's talk about EULA. Because by coming into this thread, you agreed to talk about EULAs.
But is there anything really damning hidden deep within the layers and layers of lawyer double speak? Because that's a lot of words for what I basically summed up in three sentences.
Or, if you've ever taken the time and read them and came across something funny, some "easter egg" tidbit tucked away inside the EULA that someone knew would only be found by someone who actually reads the agreement and would find amusing, post about it here.
So, let's talk about EULA. Because by coming into this thread, you agreed to talk about EULAs.
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Digital intellectual properties are much more abstract and thus much more difficult to control with the law than physical goods so there has to be a lot of legal mumbo-jumbo piled on top. To use the infamous and over-used car example, keeping someone from copying a physical car (or stealing it or a bunch of other things) is a lot easier than someone doing the same for a program. Plus, laws for physical objects have been in development for thousands of years; programs are almost purely abstract and thus present something of a challenge to legally nail down. Part of the issue is that if a company doesn't set a legal precedent that they're defending their digital property, it's a possibility that someone could successfully argue in court that the digital property is fair game for anyone.
EULAs also have to be long-winded to try and shut down any loopholes. Like the part where you say "only install on one computer". Well, what defines "one computer"? What if I have fifty computers all networked together as one big computer system? They're can all be hard-linked together with ethernet cable and arguably one system. What about that bullshit where Microsoft has decided that changing enough components on a system constitutes a "new" computer? What if you copy it and just put it up on the internet for other people to copy from your server? Technically, you aren't the one doing anything; you just put it up and other people are taking advantage. And for "only you can use this software", then you can't ever let somebody else use it. The legalese can easily takes several pages to just explain what constitutes a single computer system.
The legality stuff just makes things very, very clear so lawyers and consumers can't abuse the product someone else developed. It isn't even necessarily the fault of the lawyers creating the EULAs; if intellectual property laws were better-developed and more well-defined, then there would be a standard set of rules applying to things like programs. In this case, technology has developed faster than the legal development to go with it. In comparison, a very minimal, standard business contract for something like, say, one company buying 500 shares of another can be 50-100 pages long just to cover the basics.
Actually it does create a binding contract if you accept it; and no, you don't need certification and witnesses to create a contract.
Steam ID: slashx000______Twitter: @bill_at_zeboyd______ Facebook: Zeboyd Games
I doubt it is. Its just a scare tactic.
You can't return open software for refund, and you can't agree to an EULA until you buy and install it.
I doubt a EULA would hold up in court unless you were doing something that violates more than a EULA.
It's also far from clear that there will ever be a simple, standard set of IP rules. Certainly that's never been true in the last hundred or so years.
that's why we call it the struggle, you're supposed to sweat
It has been tested in courts and it has been upheld as a contract.
And you'd have to be more clear as to what you mean by "weak." Because they've been enforced pretty consistently absent conscious-shocking terms...
Clickwraps EULAs, shrinkwrap agreements, and browsewrap agreements have all been "tested" in court numerous times. And they have been pretty consistently upheld absent some absurdly, and I mean absurdly unfair terms.
A clickwrap agreement absolutely creates a valid binding contract, so long as it's not utterly unconscionable, which virtually none now in use are.
Also it's not a scaretactic. That would be a poor/pointless way to scare people.
Steam ID: slashx000______Twitter: @bill_at_zeboyd______ Facebook: Zeboyd Games
Don't remember what it was, though.
One is not allowed to listen to Anthrax while making anthrax, apparently.
Wekk, Anthrax as obtained via iTunes, at least. Nothing's stopping you from listening to a CD or cassette tape while making anthrax.
I don't disagree with anything you said. But it is a sham that the courts have let these sort of things fly. Shrinkwrap agreements that cannot be viewed at the time of purchase constitute a contract of collusion and should be ruled invalid. But you can get pretty much any ruling you want in these here courts if the price is right. And as others have said, it hasn't ever gotten to a point where it's worth the money to fight it.
https://steamcommunity.com/profiles/76561197970666737/
It's not a contract of "collusion," if anything it's a contract of adhesion, or a "take it or leave it" contract, where there is no real way for the other party to bargain over the terms of the contract. However, these contracts are not per se invalid, and invalidity depends on whether there is some level of unconscionability of the terms - which is the only way EULAs have been invalidated (so far). Since EULAs have been brought to court and decided upon by federal appellate decisions, most software publishers have a good idea of what to and what not to include in the terms of these things to prevent them from being invalidated should they ever go to court. That's why most of them, nowadays, are almost always valid, binding contracts.
Now let me clear something up:
Has anyone here really thought about why we have EULAs/clickwrap agreements?
Everyone says that they're not really "fair" because you can't see the terms of the agreement before purchase.
But have you thought about why the courts may have allowed these things?
It's in the interest of economical and practical considerations.
Think about it. When you go to the store to buy software, you see a row of boxes of Program X next to Program Y. You think, man, one of these programs fits my needs! I'll look on the back of the boxes and check out the descriptions, features, and screenshots to compare them! And oh there's the compatibility requirements for my computer! Great, Program X sounds good over Program Y, I'll buy that one!
If publishers were forced to include the terms of a License Agreement on the box that the software comes in, there wouldn't be room for anything else. It would practically be a box with nothing but a ton of tiny text to jam a license agreement onto the thing and the packaging wouldn't service it's practical purpose - to inform the consumer of what the program is/does/compatibility - and it wouldn't serve an economic purpose - it would be harder for publishers to make a sales pitch on a tiny box.
Secondly, since software needs to be licensed to users, rather than sold,, in order to avoid run-arounds that amount to "stealing" software legally, the developers/publishers have to be able to provide a valid EULA somehow. The most economiical way, besides avoiding a box/cover mess of text, is to include it digitally in a way that the user can't miss it. They could stick it on a piece of paper in the box, but you might not see it. At least by forcing it to pop up before install, though you may not read it, you can't avoid it or miss it. Plus, it saves time and money for the user in not having to pay for pointless paper in the package and saves time because you can agree to it immediately.
The fact is, EULAs are only invalidated when they have extremely unconscionable terms. And you say, well, any decision can be had if the 'price is right' and nobody has 'challenged them.' But they have been challenged! A lot of lawyers for plaintiffs are quite happy, I assure you, to sue big corporate software companies, even on behalf of "the little guy" because they work on contingency fee bases. That means if they win, they could potentially take a nice huge slice of a nice huge award. And in fact contingent-paid lawyers are probably the reason why most invalid EULAs were struck down; but now that there is plenty of good precedent as to what makes a good EULA, the publishers know what they can and can't put into them. The truly unfair bullshit is out.
That case isn't very relevant for a couple of reasons. First of all, the defendant never installed the software, thus he never agreed to the EULA in the first place. Which is the whole point of this discussion; validity of EULAs. Of course you don't have to follow the terms of a license agreement if you never agreed to anything (you agree to a EULA license when you click that Agree button, which the defendant never did in this Softman case). That's why the court saw it as a first-sale-doctrine issue and not a license agreement or contract.
From that case:
Essentially, that case was about a true sale without a license agreement via EULA. In other words, that case has no implications on EULAs at all.
In fact, that case even said:
Secondly, that's a district court case decision, it has far, far less precedential value than the appellate court cases that have actually decided on the issue like the ProCD case I cited above - which has never been overturned and is still solid case law that district courts (like the one in your Softman case) are bound to follow.
Now I will say this - there are cases that have invalidated EULAs. But again, these are only when the terms of the EULA are really really absurdly unfair. Just over the top absurdly unfair. And these case have come up numerous times in the past and the legal system has chopped out the truly bad stuff. The basic premise of a EULA is not an invalid manner of producing a completely valid binding contract.
The courts have struck a balance between economic and practical efficiency with EULAs and clickwraps, shrinkwraps, and browsewrap agreements. If you think these things are bad, imagine how much worse things would be if publishers and websites had to go to far more obnoxious means to throw a massive license agreement in your face if the click-wrap or browsewrap was invalidated... I assure you it would be a MUCH bigger pain in the ASS for everyone if that happened.
Besides - has anyone here been truly upset by a EULA? Most people simply don't find it a big deal. To make everyone's life a big pain in the ass by invalidating EULAs, you're making what's largely no longer a big problem for 99.9% of people into a massive headache for everybody.
Steam ID: slashx000______Twitter: @bill_at_zeboyd______ Facebook: Zeboyd Games