Fighting Back Against EULAs

An anonymous reader writes: "Fed up with increasingly obnoxious click-through "agreements" embedded in the retail software I buy, I've posted a very simple script to remove them before clicking "I agree". Without the EULA, I am free to use my software within the bounds of copyright law. Courts have been very inconsistent on the enforceability of EULAs, and I hope this will strengthen consumers' side of the battle. The script is a symbolic gesture as much as anything else, and I want to get people thinking about how ridiculous it is that software companies try to force these one-sided contracts on you after you have paid for something. Also worth a look is cexx.org's Software Vendor License Agreement, which reverses the typical EULA and puts the burden back on the software manufacturer where it belongs."

You broke it already...

[mlknowle (175506)]

Remember those little stickers on the CD-ROM pouches? You have already agreed to read the agreement.

Your script needs to be able to display the EULA, and get past it w/o cliking "agree" or whatever.

Hot steam

[BlueUnderwear (73957)]

Remember those little stickers on the CD-ROM pouches?

No problem: use hot steam to melt the glue and gently detach them, rather then "breaking" (i.e. tearing) them. Or just cut through the pouch at the other end, and take the CD out from the rear without "breaking the seal".

Then keep the intact "seal" on file along with all the other license documentation, as proof that you did not agree ;-)

Does it have to be hot steam?

[SIGFPE (97527)]

Or would luke-warm, or even cold steam do the trick?

Re:You broke it already...

[infinite9 (319274)]

You have already agreed to read the agreement

Can we just agree to disagree with the agreement?

Re:You broke it already...

[dattaway (3088)]

I opened the WindowsME CD with my new laptop with a hammer. The seal was left intact. The media was destroyed. So what's the problem?

Unfortunately, I have committed a felony under the juristiction of The United States of Microsoft by running a free operating system on my new laptop.

Re:You broke it already...not

[darkonc (47285)]

As far as I'm concerned, any agreement that I make in the purchase of software occurs before you accept my money. Once the money is accepted, the agreement is binding. Clicking on the 'i agree' button is just a stupid human trick that I have to go through to get the software that I purchased to do what you told me it would do.

Imagind if you purchased a car, and the first time you went to fill it up at the gas station, you found a sticker that said:

By breaking the seal on this gas cap, you agree to the following conditions:

You will not open the hood of your car.
You will not make any modifications to the engine
You will not drive it on any road not sanctioned by GM.
Even if the car fails to function as promised, you will not attempt to figure out how any of the features work.
You agree that GM is not liable for any defects in workmanship or design -- even if such defects cause your vehicle to periodically stop dead on train tracks, or spontaneously explode in a ball of flame that makes Die Hard's special effects look mundane.

I don't think that any court in the country would accept that as a binding contract -- yet people expect that to work for software.

Re:You broke it already...not

[56ker (566853)]

But isn't the script modifying the software therefore breaking the rules anyway? As to stickers on CDs - what if the person's blind and can't see the EULA or the sticker?

Re:You broke it already...(Dell)

[gosand (234100)]

It seems like the standard (BS) agreement. But I found it interesting that THIS agreement covers ALL the software that is distributed with the computer. So I wonder what would happen to Dell's EULA if they sold a system with Linux on it? Does that mean that their EULA would supercede the GPL? That doesn't sound right.

Just a thought.

[Dr. Bent (533421)]

I've always seen on EULA's something to the effect of: "If you cannot accept this agreement, please return this product to the retailer you purchaced it from". Has anyone ever actually done this?...Returned opened software saying 'I couldn't accept the license agreement'? Could you use this as a way to get around the Windows tax on new PCs?

Re:Just a thought.

[TheABomb (180342)]

You can try this, but most retail outfits (at least, the ConglomoCorp Chains) have "no-returns-on -opened-software-except-for-same-title-exchanges" policies. The same policy applies to software, music, and movies. IANAL (yet), but one could try to make the case that if their end of the license is not upheld, then you are free to do with your junk CD as you please.

Re:Just a thought.

[sqlrob (173498)]

Check out Bad Software [badsoftware.com] They have a nice little series of things to quote at the drones telling you that you can't return it.

Re:Just a thought.

[keesh (202812)]

I did it once on some software which was supplied with a PC I bought. Note that this is in the UK, so we can get away with a few things that you USians, erm, Americans probably can't.

Basically it went like this:

Me: How much would you take off for not installing Windows 98?

Sales Droid: We always install Windows 98.

Me: I don't want Windows 98

(five minutes of this, you know the story)

I gave up eventually. The machine was underpriced anyway, even including the 'tax'. They'd already installed the OS, so there was no way I'd be able to get that off -- they'd clicked 'I Agree' for me, I suppose.

What I did get a discount for was all the nonsense that came with the computer. Basically, Office, some virus scanner and so on. I had to take it to the store manager, who told me he'd never heard of anyone not accepting the license agreement before, but eventually he refunded me for everything except the OS.

Why they wouldn't sell me the computer without the software to begin with, I don't know... Probably to reduce all the idiot calls they get from people who thing Windows is a 'Word Processor' (I'm not making this up, I've heard that one a few times).

So, anyway, it's worth a try, so long as you don't value your sanity too much.

Re:Just a thought.

[whovian (107062)]

Do these EULAs explicitly permit this -- what is essentially a transfer of the agreement from a sales company (implicitly approved of by the software manufacturer) to the consumer?

If they are transferable, then in my view there are two logical outcomes: Either the customer has the right to see the EULA on demand, or the sales company who is agreeing to the EULA for the customer ought to be liable for any misuse of the software by the customer.

Re:Just a thought.

[sheetsda (230887)]

"If you cannot accept this agreement, please return this product to the retailer you purchaced it from". Has anyone ever actually done this?...Returned opened software saying 'I couldn't accept the license agreement'?

The way you do it is to exchange your "defective" copy first, then return the unopened one they give you.

Re:Just a thought.

[Ronin SpoilSpot (86591)]

I tried to return a Win2K to the shop after having second thoughts. It was an academic license and I wasn't technically a student any more, so I failed to meet the requirements. The shop ofcourse refused to have it back (it was open, how else could I read the requirements), but in the end they gave me 90% of the price back. I complained to the local Microsoft office and they basically admitted that they had no way to force the shops to accept their "return to shop" policy even if it is printed on the box.
They did give me a free WinXP Pro instead, so I'll live.

/RS

Re:Just a thought.

[drDugan (219551)]

I purchased a shrink wrap machine years
ago. sits out in my garage. I've never
had to worry about returning anything in
a plastic wrapped box!

Re:Just a thought.

[yamla (136560)]

I tried this at Future Shop [futureshop.ca] and they refused to even accept it back. I pointed out that I refused to accept the license agreement and it said that I could return it to my place of purchase but they did not agree. I couldn't be bothered to cause any more fuss but if I get bored one day, I may try it again and get them either to pull off all copies of the software they are selling (because they are refusing to honour the agreement) or give me a signed document stating that I am not bound by the EULA.

If you read this...

[jhines0042 (184217)]

... Then you agree that I am free to use your brain to make you think about pink elephants.

That is all.

So where's the EULA for..

[Dynamoo (527749)]

So where's the EULA for this dodgy looking script? Then.

Great idea. Maybe I can take down the speed limit signs in my neighbourhood so I can go as fast as I like. Doh.

Reverse Engineering though...

[Traicovn (226034)]

If I am correct that may constitute REVERSE ENGINEERING the software though, which may not be allowed under the DMCA, it's a neat idea, but might not hold up in court, and might actually cause aditional headaches...

Lets have fun with EULAs...

[Xunker (6905)]

I'm going to write some fantastic whizz-bang piece of software just for the pleasure of writting a EULA with a clause that goes "The lisencee of this product must wear a gorilla suit while using said product. Upon violation of this clause, the lisencee agrees to send the author Five (5) kiliograms of Reeses-Pieces(TM) Brand Peanutbutter candies."

Selective Enforcement?

[photon317 (208409)]

Aside from the "real" issue that EULAs are morally wrong, surely an appeal can be made to non-enforcement. I don't know the legal wording, but it seems there's probably a way to say in legal terms "Look, this law/contract gets broken hundreds of times per day, and nobody really cares or enforces it, therefore when you single me out and enforce a EULA on me, you're really being discriminatory and using the law/contract to acheive some other goal".

There must be some legal precedent for the concept of "If you never actively enforce a law, and allow it to be broken (in obvious publicly-visible ways) over and over, you can't then go at a later date enforcing it at will on specific people you decide to target, it's not right".

For that matter, if such a legal principle exists, I'd really like to see someone apply it to the traffic ticket system as well.

Re:Selective Enforcement?

[underwhelm (53409)]

Estoppel? [google.com]

What's interesting

[GSloop (165220)]

about this, is that the SW companies want to treat the EULA like a contract. But there's no negotiation. The power of the parties is vastly different. Take it or leave it contracts often don't stand.

I'm obviously not a lawyer, but these are points that have come out in court, when contracts are challanged.

What's so interesting about this, is that it gives the user a chance at negotiation. Sure, it's a farce, but so is the "contract" the EULA tries to put in place. (There's no consideration - you bought the software - money for package - there's the consideration. Now, you must click the EULA too? There's no consideration (transfer of something valuable) happening then, so no contract can ensue.

So changing the contract to something else isn't any more crack-pipe'ish then the usual EULA.

Lastly, have you ever read any of those EULA's? I'd bet that 10 lawyers would come up with 10 significantly different interpretations of the "contract." That doesn't even take into account what the courts might do. So, reading your own EULA is almost futile, and who can afford to get an expert legal opinion on 10+ pages of legaleese for every software product they buy.

EULA's need to get challenged in court, and struck. UCITA needs to die an ugly and nasty death. With UCITA, EULA's will have the real power of law, not just a sham that the SW companies want you to believe.

Make sure you discuss UCITA with your STATE representatives. UCITA has to pass in your state for it to make it into UCC. You might even consider working to pass laws that provide protections against vendors who are (or will be) in UCITA states.

Cheers!

Dangerous misunderstanding of "No EULA" and law

[Seth Finkelstein (90154)]

Without the EULA, I am free to use my software within the bounds of copyright law.

This is very dangerous and misleading! There's much law which says you are NOT THE OWNER of the copy, and so you are not reading section 117 [cornell.edu] correctly. I know, it sounds wrong. I know, it sounds illogical. But that's the law. There's no gimmick, no magic.

See, for example, the comments about the MAI Systems decsion in this paper [arl.org]:

Title III was proposed in response to the decision in MAI Systems Corp. v. Peak Computer, Inc.53 MAI involved the limitation on the exclusive rights in computer programs contained in 17 U.S.C. 117, which allows the "owner" of a program to load the program into the machine's random access memory, or "RAM." In MAI, an independent service organization (ISO) serviced a computer which used software licensed to, but not owned by, the customer. The court held that the ISO infringed the copyright in the program by loading the copyrighted software into the RAM of the customer's computer, thereby making a "reproduction" of the copy under 17 U.S.C. - 106. The MAI court ruled that Section 117 only exempted "owners" of software and not "licensees." Title III amends Section 117 to effectively overrule MAI by allowing the owner or lessee of a machine to make or authorize the making of a copy of a computer program under certain conditions for the purpose of repair or maintenance of the computer hardware.

Specifically, the making of the copy is allowed (1) if the copy is made "solely by virtue of the activation of a machine that lawfully contains an authorized copy of the computer program, for purposes only of maintenance or repair of that machine," (2) if the new copy is used for no other purpose and is destroyed upon completion of the maintenance or repair, and (3) if "any computer program ... that is not necessary for that machine to be activated ... is not accessed or used other than to make such new copy by virtue of the activation of the machine." Significantly, the exception applies only to RAM copies made during the course of hardware maintenance, not software maintenance.

Disclaimer: I am not a lawyer.

Sig: What Happened To The Censorware Project (censorware.org) [sethf.com]

Re:Dangerous misunderstanding of "No EULA" and law

[mjh (57755)]

This is very dangerous and misleading! There's much law which says you are NOT THE OWNER of the copy, and so you are not reading section 117 correctly. I know, it sounds wrong. I know, it sounds illogical. But that's the law. There's no gimmick, no magic.

What about this [linuxjournal.com], which is a court finding that says that despite the EULA, the exchange of money for software is a sale. From the article in question:

"The Court understands fully why licensing has many advantages for software publishers. However, this preference does not alter the Court's analysis that the substance of the transaction at issue here is a sale and not a license," Judge Pregerson writes. If you put your money down and walked away with a CD, you bought that copy, EULA or no EULA.

Here's a link [cryptome.org] to the full text of the decision.

Re:Dangerous misunderstanding of "No EULA" and law

[Dr. Awktagon (233360)]

The argument you're making is in fact the entire point: just because Microsoft printed words in their EULA, that doesn't mean they are a binding legal contract.

I consider EULA's to be simply a promise by the software vendor: we promise not to sue you if you do this and this, etc. That does not automatically mean they are morally or legally right, or that they would win such a lawsuit.

That's all that makes EULA's "binding": the threat of being sued. The software companies know that their power is tenuous here, and hope for legislation like UCITA that really makes it binding. ANY company would love to be able to dictate exactly what you could do with their product, so they could bill you for the different "privileges" of doing different things with the product.

Imagine if Ford said that by displaying the Ford trademarked logo in public, including on your car, you agree to a "Ford logo license", which says you can only drive 35mph or slower. For $1 per mph over 35, you can earn the privilege of driving over 35mph. Whenever Ford needed more income, they could just adjust the fees and cutoffs (be sure to check ford.com weekly for license updates) until they maximized profit. Whenever that didn't work, they could just send in the "Ford license enforcers" with speed guns, because somebody somewhere is probably violating the license. And if you don't keep accurate records of your speed, they offer you a settlement in compromise, just like the friendly folks at the BSA!

EULAs give software vendors too much power. The best thing to do is use Free/Open Source software, next best thing is to ignore the EULAs.

EULAs and Return Policies

[athakur999 (44340)]

The problem with most packaged software is you don't see the EULA until after you've opened the box, and many stores will refuse to refund money on opened software. Effectively, this means if you don't accept the EULA theres nothing you can do, aside from finding someone else to buy it off you, most likely at a loss.

As for this software, I can't see it holding up in any court. You can't say "I shut my eyes everytime I drove past a speed limit sign" and expect a judge to let you off the hook for going 120.

This also removes any incentive for companies to change their EULAs. After all, they're still getting $50 or whatever from you, whether you avoid the EULA or not. Vote with your wallet people...

Re:EULAs and Return Policies

[gillbates (106458)]

IANAL, but generally speaking, in order for a contract to be valid, it must not be made "under duress." For example, if a criminal broke in and forced you at gunpoint to sign over your house to him, the contract would be unenforceable because one of the parties made the decision under duress. Likewise, someone who is drunk, under age, or mentally ill cannot legally enter into a contract.

In the current instance, clearly, one party is under duress because they cannot return the software to the store for a refund - the vendor won't take it back - a stipulation often made by software companies. Thus, the end user's only option is to not install the software (thereby losing the purchase price), or click the "I agree" button. Since the contract is made under the threat of losing the purchase price, the user is not legally able to enter into the contract relationship - the option to back out of the contract is not really an option at all. Thus, most EULA's are unenforceable without this software.

Textarea

[red5 (51324)]

My favroit EULA have alwase been the ones used in online forms. Where they put the EULA in a <TEXTAREA>.
I remove all the text and replace it with "I AGREE TO NOTHING".
Is this still legaly binding?

DMCA Lawsuit waiting to happen...

[supabeast! (84658)]

Good god... someone start a clock that runs until lawsuits force google to shut this down and the feds arrest everyone who posts a mirror. Save this one to a text file!

Easy to solve!

[jurros (110198)]

Here's what I do is every time I have an EULA on my screen: I just let my under age son agree to it! Contracts to minors are unenforcable!

Re:Easy to solve!

[SanLouBlues (245548)]

Unfortunately for the many of us without kids, this won't work. It costs too much to rent one every time we buy software, and I hear if you get your own, the payments never end.

fundamental question

[drDugan (219551)]

lots of people are writing and talking about
following laws, this law, that law etc. The
discussion really is a specific instance of
more fundamental questions:

When a law doesn't make sense, should people
follow it? At what point do you realize
that the motivations of the people creating
laws are not aligned with their interests?

Crossing your fingers means you don't promise

[JimmytheGeek (180805)]

By long-standing common law precedent, if you cross your fingers while you click, you don't have to abide by the terms. If you feel like going the extra mile, you can tell the dialogue box in person that you don't accept some or all of the provisions.

Common sense?

[davie (191)]

To expect someone to be bound to the terms of a contract after a sale is ridiculous. Either it is a sale or it isn't. If it's a sale, then I own it and can do with it as I see fit. If it's not a sale then calling it that is a misrepresentation. Call it a rental or a lease, because that's what it amounts to.

If you or I sold someone a car, house or any other property then stuck a contract in the buyer's face and told them "sign it or give me back the property" we'd be a laughing stock, and no court in the world would consider the case. Why should software be any different. If Microsoft and other vendors expect end users to be bound by the terms of a contract they should be required to present the contract in advance of the purchase, period.

His VB script contains a typo...

[Thing 1 (178996)]

Toward the bottom of his script [google.com] , there appears to be a typo.

He has two regex sections. The first starts with "Set term1 = New RegExp" and then defines three attributes for term1.

The second section starts with "Set term2 = New RegExp" (note term2), but then defines three attributes for term1.

This must not have been found in testing, as the keywords in the regexes are found in just about any EULA. Still, it's worth noting. I'm not a VB programmer and I saw that immediately -- are there any other potential errors in the code?

Virus !, lol,,,,,,take that MS !

[CDWert (450988)]

Someone needs to roll this script in a VIRUS scanner. So whenever the app gets on the machine it gets scanned and flagged as a virus, with the FIX option then removing the EULA.

MS calls the GPL liscence Viral , Hell they started calling names first, if you wrap this in a Virus scanner and get hauled into court , the judge ask "why you felt your prodect could remove the EULA" look you honor at all these press clippings calling the GPL if the GPL can be viral so can the MS EULA, and Hence I can remove it :)

A much easier way around it

[rossz (67331)]

I have my 11 year old daughter install software. I have not given her permission to enter into a binding contract.

Re:A much easier way around it

[Andy_R (114137)]

Careful, you are now legally prohibited by the DMCA from creating any countermeasures to software protection, so you had better get some contraceptives right away or you could end up going to jail.

Re:Great idea!

[1Oman (308666)]

If you would take the time to follow th links in the article, you would see that he did not post anything for you to download. He only posted the source.

Re:Great idea!

[Kierthos (225954)]

Microsoft reccomends their software to millions of people. And based on the many BSODs I (and my customers get) it sure as Hell(tm) wasn't tested very much.

Kierthos

Re:Yay!

[K. (10774)]

It's not a law doofus. That's the point.

Actually DMCA MAY cover...

[sterno (16320)]

The DMCA forbids the creation and distribution of access control circumvention devices. The EULA agreement, during installation, could be interpreted to be a form of access control. The software will not, ordinarily, install on your system unless you click the "I Accept" button. Therefore it is controlling your access to the software and anybody who bypasses the EULA may not be authorized to use the software.

Welcome to the wonders of poorly written legal language...

Re:One thing that scares me about notebooks...

[gorillasoft (463718)]

Anybody have any tips for me?

Go here [qlilinux.com].

Re:don't complain

[King_TJ (85913)]

No, just because you put it in writing doesn't mean it's legally binding. This happens all the time. Companies try to get out of responsibility for damages their product could cause by printing up statements absolving them of liability. Nonetheless, if taken to court, they often are found liable anyway.

In the case of EULAs, software companies often overstep their bounds, placing demands on the consumer that are unreasonable because they infringe on the user's own rights.

EG. I once saw an EULA for DeLorme's Street Atlas software that said you agreed not to use the product with any GPS device that wasn't authorized by them for use with their software. Sorry, but they can't tell me I'm violating their license agreement if I plug in a Garmin hand-held GPS to a COM port on my PC, place the Garmin in compatibilty (NMEA) mode, and get it working with Street Atlas. I have the right to use the Garmin with my PC any way I like.

WRONG

[Waffle Iron (339739)]

Software that companies write belongs to them so they should be free to do whatever they choose with it

The copies of the software that were sold to you are your property, not the vendor's. What the vendor does own is a government-sanctioned "lien" on your copy that prevents you from making addtional copies. Nothing more.

They do not have the right to force you into an additional restrictive contract after the sale. They are free to attempt to get you to agree to such a contract, but you don't have to agree to it.

Re:don't complain

[Arandir (19206)]

Read the EULA before you click "accept". If you don't agree with the terms and conditions then don't install the software.

But I already have the legal right to install the software! Do I have to quote chapter and verse of Copyright Law?

Here's how it works. The author creates a work and publishes or distributes it. At this point in time there are two sets of right bound to the work. The first set of rights are exclusive to the author. These include the right to distribute, modify and generally copy the work. The second set is not exclusive to the author, but belong to the public or to the possessors/owners of the copies. These rights include using the work in its customary manner. If it's software, the author does not have the right to prevent you from using it.

If I don't accept the terms of the EULA, and I can somehow install the software without assenting to the EULA, then I have the right to use the software.

Software that companies write belongs to them so they should be free to do whatever

Absolutely not. The only thing that belongs to the software companies are the rights to copy, distribute and modify the software. They do not have the exclusive right to use the software.

"Intellectual Property" is not property. This has been asserted by the courts before. Don't let the name fool you, it is just a linguistic shorthand.

If I don't agree to the my landlord's rental agreement, I still can't live in his/her apartment, because that apartment is his/her property. But if I don't agree to your EULA, you can't prevent me from using the software, because the copy in my possession is not your property.

If you want more restrictive terms over the use of the software, then you may attempt to get me to agree to them. But you will have to do so before I aquire the software. That may mean you have to forego selling your software through traditional retail channels. Too bad. You are not king of the world so you don't have the right to make up the rules as you go along.

...even if they require handing over your first born or something.

Such a clause would be illegal.

Re:"Symbolic" gesture indeed

[liquidsin (398151)]

I betcha there's an EULA on any free software you use as well. Maybe not as nefarious as KaZaA's "all your network resource are belong to us", but something along the lines of having to redistribute code changes, or whatever clauses for it's flavour of gpl/bsd/lgpl/whatever.

Re:Contract law...

[nagora (177841)]

I'm sure some screwy lawyer somewhere would be able to apply that to, say, a credit card purchase?

Well, saying you've found a lawyer that will argue a case is like saying you've found a prostitute that's agreed to sleep with you.

The issue is: what would a judge do? In some cases in the US they have ruled that EULA's are binding but the higher up the court system you go the less truck this gets and late last year a judge (in Florida?) ruled that no renewal term or requirements means this is not even a licence never mind a binding one.

In the UK several on-line pricing boobs have revolved around the question of whether the vendor (ie the website) was totally automated or not. The courts finding that an automated system is not able to form a contract and therefor a miss-priced item does not have to be honoured, while any human intervention in the acceptance system (in one case simply having someone manually checking that buyer's emails go out to legal email addresses) makes a contract which does have to be honoured.

EULA depend on fear of court action, but there are almost no cases of a successful prosecution that did not in fact resolve back to an ordinary copyright violation.

Generally the courts take the position that if I pay for goods and you give me them with no requirement that I ever give them back then it is a sale and I am free to do as I wish other than breach laws such as copyright. Anything else I agree with you has to fit inside contract law and have such items as consideration and evidence of agreement on both sides (eg signitures from seller and buyer), lack of coercion, limits on what can be in a contract etc. Everything else is just wank.

EULA are no more imporant or useful than the typical lawyer, but they can be just as scary too.

TWW