Byte Rights: Read 'I Agree' to Continue

Posted 03/17/2010 at 12:45pm | by Quinn Norton

12

Comments

Print

Ah, the humble End User License Agreement. You tear through them, you click “I agree,” but what exactly are you agreeing to? I don’t actually know, because like you, I never read them.

Claiming to read all your software licenses is the reverse of masturbation—90 percent admit they don’t do it, and the other 10 percent are liars. It’s hard to get through a whole day without agreeing to the occasional complex contract, we definitely couldn’t get through the day if we read them.

These days, companies claim to sell us their EULA in lieu of just selling us their software, to give themselves powers over their software the law doesn’t give them. How much power? No one exactly knows. This last-mile legislation by companies has met with mixed response when it goes to court.

Where companies use EULAs to obviously subvert state or federal law, judges don’t like them much. Take First Sale, the legal principle that lets you resell a copyrighted item you bought, like a book or CD. Many courts have held that if it looks like a sale, that’s what it is, and your first-sale rights stand, whatever the EULA says—especially if you never agreed to it. When Autodesk kept sending DMCA notices to eBay regarding seller Timothy Vernor’s re-sales of their software, he (and nonprofit consumer advocacy group Public Citizen) sought to get the court to declare what he was doing legal. Since he never so much as installed the software, the court has been pretty sympathetic, ruling against Autodesk.

But in other cases, where the seller did the clicking on an agreement, the courts have sometimes held that they lost first sale by contract law, sometimes by copyright law, and sometimes not at all. The pre–software age precedent is pretty clear about a strong first-sale right, but software makers over the last 25 years have had a lot of opportunity to get judges used to the idea that they can sell their product yet write their own conditions on it. With software companies writing the law, what do we need Congress for, anyway?

Quinn Norton writes about copyright for Wired News and other publications. Her work has ranged from legal journalism to the inner life of pirate organizations.