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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.
Comments are closed on this article
Modred189
March 17, 2010 at 9:13pm
EULAs do not make law, sorry, they simply take advantage of copyright law. Copyright law that your much-maligned congress created in the US copyright act 28 U.S.C. 101. A statute backed by hundreds of years of common law.
New cases have continued the last practices, only with software. Specifically that called the "ClickWrap" principle first outlined in ProCD v. Zeidenberg, and later upheld in many different ways including on prebuilt systems and downloaded software. All upheld by the Supreme Court.
Personally, I find it hard to have any sympathy for people who feel 'burned' by a EULA. It's a contract. You're agreeing to it and its contents. It contains a clause that says if you don't agree to the terms of the EULA you can get a refund. If you don't read it, it's not the software company's fault you didn't read what you said you did.
Furthermore, can you blame the companies for selling you a license as opposed to an actual copy? No software company would ever be able to make any money...
shellpc
March 23, 2010 at 8:26am
Umm, book publishers make money selling you a copy. So do record labels selling cds and most any other industry that sells you a copy. So how does a software company NOT make money by selling you a copy instead of a license?
The fact the nature of software allows you to install it onmultiple computers? People do this already (even though they shouldn't). Doing so should be considered a violation of copyright law as you only bought 1 copy.
Also, we rely so much on computers and software in our daily lives that unless you want to go back to the dark ages or be severely handicapped compared to your competitors you really don't have a choice on disagreeing with an EULA. Its just not feasible.
I do agree developers are entitled to protect their works, just like any other creator of a work. I also agree with Quinn that licenses tend to give the developers too much power of what you can and can't do with thier software.
Modred189
March 18, 2010 at 10:54am
And that's their right as the seller and the writer of the contract. It would not make sense any other way. If you don't agree, don't install the software and get your refund.
nekollx
March 18, 2010 at 10:59am
except they wont give a refund short of a lawsuit
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Modred189
March 18, 2010 at 5:06pm
As I said back in the other thread, that's just patently false... In fact they make sure that such refund requests, infrequent as they are, occur very quickly. It's in their best interest to react quickly and in your favor in such situations, so when they are brought into court, they can point to their perfect adherence to their own policies. Read such cases, they ALWAYS point to it.
nekollx
March 18, 2010 at 5:11pm
not in every company, in the few times i tried to retun something i got firewalled, and i'm not the only one.
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Coming soon to Lulu.com --Tokusatsu Heroes--
Five teenagers, one alien ghost, a robot, and the fate of the world.
big_montana
March 18, 2010 at 6:16am
Actually, most EULA's state that if you do not agree with the license than return the software to the manufacturer for a refund, as no retial outlet will give you a refund for opened software. Also try getting a manufacturer to give you a refund without you first having to file a lawsuit against them to uphold the terms of their license. They use the license for tehir benefit and their benefit only.
Modred189
March 18, 2010 at 10:59am
Of course they use the EULA for their benefit, that's the point. But there are clauses in the EULA for the licensee's benefit as well. The Binding arbitration clause makes any claims you bring against the company MUCH cheaper to deal with, and much faster to handle.
But that aside, when you opt to return your software for a refund, an option I've used twice, the process is very easy and very fast. Both times (once with EA and once with Activision), I had my refund (minus taxes, of course) within two weeks of contacting the company in question. Their legal departments make sure that they uphold their side of their EULAs explicitly, that way, when someone sues them from the other side of the click-wrap barrier, there is no argument for the buyer against their previous performance.
nekollx
March 17, 2010 at 2:38pm
ABSOLUTELY NOTHING!
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Coming soon to Lulu.com --Tokusatsu Heroes--
Five teenagers, one alien ghost, a robot, and the fate of the world.
Caboose
March 17, 2010 at 3:23pm
You know, the original title of the book War and Peace, was going to be "War, what is it good for?" Absolutely nothing! HUH! </Elaine>
-= I don't want to be dead, I want to be alive! Or... a cowboy! =-
nekollx
March 17, 2010 at 3:43pm
Say it again now!
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Coming soon to Lulu.com --Tokusatsu Heroes--
Five teenagers, one alien ghost, a robot, and the fate of the world.
