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Cory Doctorow on Shrinkwrap Licenses 125

Posted by CowboyNeal
from the by-opening-this-page dept.
An anonymous reader writes "Web privacy advocate Cory Doctorow is on about shrinkwrap licenses, in his latest essay. They've always been onerous. Now, Doctorow says the new EULA in Vista and even the MySpace user agreement could put users at risk of being sued. He closes with: 'By reading this article, you agree, to release me from all obligations and waivers arising from any and all [everything].'"
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Cory Doctorow on Shrinkwrap Licenses

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  • by Anonymous Coward on Saturday February 03, 2007 @10:01AM (#17873182)
    By reading this article, you agree, to release me from all obligations and waivers arising from any and all [everything].'

    This shouldn't be an issue here.
    • Re: (Score:1, Insightful)

      by Anonymous Coward
      The actual gist of the "read-wrap" license is that you, on behalf of your employer, release the author from any prior agreements you have entered into. So if you work for MS then you release him from any Windows/Office/whatever licenses he may have clicked through. Same goes for anyone working for Sony or whoever.

      As much as it's meant as a joke it's actually a pretty cool idea since it's so similar to the original license most arguments regarding the validity of one apply equally to both.
      • Re: (Score:3, Insightful)

        by ultranova (717540)

        As much as it's meant as a joke it's actually a pretty cool idea since it's so similar to the original license most arguments regarding the validity of one apply equally to both.

        Except the most important: MS, Sony or whatever have vastly more money than you. Therefore they can win any court case against you simply by dragging the case on long enough that you'll go banckrupt, can't defend yourself anymore, lose by default, and spend the rest of your life in poverty and debt. That's why you have to treat

    • by Mateo_LeFou (859634) on Saturday February 03, 2007 @10:36AM (#17873450) Homepage
      Kinda off-topic, but I was wondering. Given that a EULA contains a huge amount of intellectual property, and that the lawyers who drafted it thus have the right to permt/allow/deny every instance of its use, is it legal to quote from EULAs?

      Shouldn't there be something you have to click through before reading a EULSA.. something that says basically "you cannot view/use/think about this EULA except under the terms define below... "
      • by it0 (567968)
        It is always legal to comment on things, because we have freedom of speech, we are allowed to quote things to make our point.

        Else it would be legal to censor critics...
      • by Infonaut (96956) <infonaut@gmail.com> on Saturday February 03, 2007 @12:37PM (#17874364) Homepage Journal

        Given that a EULA contains a huge amount of intellectual property...

        Actually most EULAs consist of the same language used in other EULAs. In that sense they are full of what in copyright is referred to as "scenes a faire," or components that are common to a particular type of work. For example, a movie about the Middle Ages might show some poor wretch gnawing on a piece of stale bread. This is so common that that particular scene in itself has no special creativity.

        EULAs have at best a thin layer of creativity in the selection of certain stock phrases in order to compose a whole. In that sense they are probably akin to literary compilations, which have a very thin layer of copyright over the selection and presentation of the collected works. In the case of EULAs, I think it would be difficult to say that "You agree to indemnify and hold harmless..." and other stock phrases are anything more than scenes a faire.

        I was talking with a rather high-powered copyright lawyer about this a few months ago, and he agreed with my assessment. There doesn't see to be any real pertient caselaw on this, so all opinions are equal until someone finds reason to bring suit for copying of EULA terms. I can't really see why any company would bother with it though. The language of a EULA is not something worth protecting, because in itself it does not produce revenue.

        • by Mikkeles (698461)
          'Actually most EULAs consist of the same language used in other EULAs. In that sense they are full of what in copyright is referred to as "scenes a faire," or components that are common to a particular type of work.'

          To my mind, this describes almost all movies, most literature, and an awful lot of software.

          • by Infonaut (96956)

            To my mind, this describes almost all movies, most literature, and an awful lot of software.

            True. It just depends how far you go in abstracting the concept. I probably didn't explain it very well.

            All movies need conflict. That doesn't mean that every conflict in every movie is the same. All software uses ones and zeros, but that doesn't mean that all software is unprotectable under copyright. There are some elements in a creative work that can be handled in a variety of ways. There are others that can

            • Re: (Score:3, Informative)

              by cpt kangarooski (3773)
              There are some elements in a creative work that can be handled in a variety of ways. There are others that can be handled pretty much only one way.

              Well, you're kind of confusing the scènes à faire doctrine with the merger doctrine there.

              Copyright protects expressions of ideas, but not the underlying ideas themselves. For example, the idea of star-crossed lovers is uncopyrightable, but its particular expression in Romeo and Juliet (ignoring things like when and by whom it was written) would be copy
              • by Infonaut (96956)

                Well, you're kind of confusing the scènes à faire doctrine with the merger doctrine there.

                Obviously you're right. Thanks for the clarification.

        • by epee1221 (873140)
          And how could you copyright the EULA anyway? AFAIK (IANAL), contract offers and the like are not subject to copyright, and the applicability of patent law to such things is questionable at best.
          • by Infonaut (96956)

            And how could you copyright the EULA anyway?

            I've never seen a specific provision stating that contracts are not subject to copyright, but it's certainly arguable, for the reasons I listed. Also, the primary purpose of a contract is arguably functional, which would possibly put it outside the realm of copyright. I think the main reason this is unclear is that nobody really cares about ownership of the language of contracts. There's just no money in it.

    • by grangerfx (998424)
      I think I have found my new signature file. Just like the corporations cut and paste sections of license agreements, we should follow suit and cut and paste Cory's license agreement like so: READ CAREFULLY. By reading this article, you agree, on behalf of your employer, to release me from all obligations and waivers arising from any and all NON-NEGOTIATED agreements, licenses, terms-of-service, shrinkwrap, clickwrap, browsewrap, confidentiality, non-disclosure, non-compete and acceptable use policies ("BOG
  • I suspect a court wouldn't find most such licenses binding.
    • by Anonymous Coward on Saturday February 03, 2007 @10:11AM (#17873252)
      The whole point of the EULA is to ensure that there are so many conditionals that you'll be snagged by at least one or two unpalatable in any given jurisdiction. It doesn't matter if 95% or more of the EULA is outright illegal in your state or country; there'll still be enough leftover to have you by the short 'n' curlies.
      • ... where, if part of the contrat is illegal, then the whole contract is made null. In other word for all those country, making statement for example to make user sign up their basic right, or even consumer-protection right, is illegal, would simply nullify the EULA. So... The left over won't do shit in such case.
        • by GodInHell (258915) * on Saturday February 03, 2007 @01:44PM (#17874888) Homepage

          ... where, if part of the contrat is illegal, then the whole contract is made null. In other word for all those country, making statement for example to make user sign up their basic right, or even consumer-protection right, is illegal, would simply nullify the EULA. So... The left over won't do shit in such case.
          That's an intresting (wrong) interpretation.

          Actually courts will usually do what they can to save a contract within interpretation - and will nullfy portions of the contract that cannot be enforced. But no, writing a contract so that it includes clauses which are unenforceable (ie giving up your basic human rights) does not void (the correct term) the contract.

          An illegal contract - one that is a contract to commit a crime (ie Rob that bank and I'll help you sell the gold for a 50/50 cut of all proceeds) is - yes - null and void in all states I don't think there are any EULAs out there in the main stream that include contract for crime though - so points for getting one legal principle correct, losses for applying it to the wrong case.

          -GiH
          (No, not a lawyer, just a law student).
          • Re: (Score:3, Insightful)

            by tdelaney (458893)
            Maybe you should have noticed the *title* of the post you were replying to. Bad grammar, but understandable nonetheless ...

            "Except for all the country..." -> except for all the countries (i.e. not US) that have laws that hold that if any part of the contract (or EULA) is unenforceable, the entire contract is unenforceable.

            We all know that that's not the case in the US - we have morons blaring it every time this topic comes up. But there *are* countries (fewer and fewer as time goes by unfortunately) wher
        • A load of these licences have thingies saying ''blah blah as permissible by local laws blah blah'' so presumably, this automatically removes any parts not allowed by local laws and thus saves the contract from becoming totally void.
    • Basically right. I've read a few EULAs and frankly, they can have onerous terms but no one

      I don't think a EULA has held up in court, or had serious scrutiny. I think a court did find that you cannot have a EULA that the customer couldn't read before buying software, but the current lazy workaround was a sticker on the shrinkwrap pointing to the URL of a EULA. As if anyone would go to a computer terminal and read it.
      • Basically right. I've read a few EULAs and frankly, they can have onerous terms but no one

        Oops.

        I basically meant to say that no one really cares. I wonder if the companies really don't want people to read them. It's unfortunate that plain-english agreements don't fly because reading legalese is boring. I don't expect lawyers to understand an electronic data sheet, so why should a lawyer expect me to read legalese to understand what I'm agreeing to.
        • I don't expect lawyers to understand an electronic data sheet, so why should a lawyer expect me to read legalese to understand what I'm agreeing to.

          They don't --- they expect you to click away your rights or hire a lawyer. What are most people going to choose?
    • If your average user could get to that point in a legal proceeding more than, say, 0% of the time, it'd be important that heshe wins.

      But they basically can't. So bend over and click "Accept".
  • by jopet (538074) on Saturday February 03, 2007 @10:11AM (#17873254) Journal
    In many countries shrinkwrap licenses or license agreements that you can only agree to after actually buying the product, or that are "implicitly agreed upon" are not legally binding and are contrary to public policy. None of the things included in those "contracts" are legally binding and that includes the exclusion of warranties etc., even if written in all upper case.
    • Re: (Score:2, Interesting)

      by DogDude (805747)
      That's true in some countries, but in most countries, even SIGNING a contract with illegal parts of it doesn't make those items valid, contractually. You could sign a contract with somebody else to kill their mother, but since murder is illegal, that contract would be void and not legally binding. Nothing to see here. Please move along, everybody.
    • by Anonymous Coward on Saturday February 03, 2007 @10:36AM (#17873442)
      Not to mention that with a click-through license, there is no way of knowing who agreed to the "contract". I could get my underage kid to agree to the licensing terms, and he will not be legally obligated to abide by them because he is not allowed to enter into a contract at his age. And I can use the computer afterward without having agreed to any terms at all.
      • At which point, in some places, either you or you-on-behalf-of-your-kid will be directly liable for copyright infringement.

        • Depends. I copied the software twice. Once to install it, and once into RAM to run it. Both of these instances were for personal use. More importantly, both were required in order to use the software for the purpose for which it was sold. I could argue that in order to fulfil the basic requirement of merchantability then an implicit license for these two instances of copying are required and so no further license is required and so I have no need of accepting the EULA in order to use the product for th
          • by Sloppy (14984)

            I could argue that in order to fulfil the basic requirement of merchantability then an implicit license for these two instances of copying are required
            Or you could argue it's Fair Use, regardless of any implicit licenses. Those uses clearly do not harm the marketability of the software.
            • You could certainly argue both those things, at least where the jurisdiction supports Fair Use to that extent (which not all do). Indeed, both arguments would be very reasonable. My point is simply that until you have actually argued them in court, you don't know how much legal weight such arguments really have in practice.

        • by Pofy (471469)
          >At which point, in some places, either you or you-on-behalf-of-your-kid
          >will be directly liable for copyright infringement.

          In many countries this would not be true since normal use like running, installing and such does not require any special license, permision or anything and is thus not a compyright infringement. Actually, many countries has specific permisions written in the law that makes such use legal without any special permision. Typically the only requirement would be that you have a lawful
          • Sure. And for what it's worth, I happen to believe that that is a better approach. After all, if someone has paid for a fair copy of the software, why shouldn't they be allowed to install and use it without further conditions? What else were they paying for?

            Unfortunately, the legal situation in some jurisdictions doesn't seem to be clear on this point, hence all the confusion over EULAs of various types.

            Maybe there should be a disciplinary procedure applied to lawyers who work on contracts that they (as

    • by Anonymous Coward on Saturday February 03, 2007 @10:38AM (#17873466)

      Here's the news: EULAs are bullshit. They always have been (except in a few benighted countries)... they were always meant to muddy the legal waters rather than enforce their ridiculous conditions.

      Microsoft's dream has always been to enforce EULA restrictions by *technical *means. This means no need to deal with legal matters... want to change things, or enforce patently bullshit restrictions, then they just change them. This is why they started the TCPA, subsequently the TCG (Trusted Computing Group), and spent time designing their dream hardware along with the likes of IBM, Sun, HP etc etc: they call it Trusted Computing, and the hardware is a "TPM"... which will now be installed in every PC (and is already in the Apple Mac). The hardware gives Microsoft (and Apple) the ability to actually enforce the EULA by technical mans... read your EULA, read the specs, and criticisms [cam.ac.uk], and be afraid.

      • TCG (Trusted Computing Group)

        Trusted computing is one of the more frightening new speak euphemism of the last few years.

        I trust my computers just fine. If the World Disney Corporation has a problem with that that's really not my problem.

        There is a problem though, of course, and that's when choice is ripped away from me by technical means.

        • There is a problem though, of course, and that's when choice is ripped away from me by technical means.

          That's nothing new ... CSS was one of the first examples of ripping away your rights via technical measures. It gets really bad, though, when you are legally prevented from removing such measures yourself or even trafficking in the tools to do so (see: DMCA.) The combination of legal controls enforced by technological means is disastrous, but that's precisely where we're heading, like it or not.
    • For a post modded (+5, Informative), the parent is remarkably short on details. Can you show us a court case in any jurisdiction where someone has successfully argued that EULAs are unenforceable?

      • Re: (Score:1, Informative)

        by Anonymous Coward

        Can you show us a court case in any jurisdiction where someone has successfully argued that EULAs are unenforceable?
        Step-Saver Data Systems, Inc. v. Wyse Technology, 939 F.2d 91, 3rd Cir. 1991 ?
      • Re: (Score:3, Interesting)

        by henni16 (586412)
        Ask Microsoft Germany why pre-built PCs don't have "normal" Windows CDs anymore, but only recovery CDs/partitions and the hologram-license-thingee bolted to the case in a way that it is (supposed to be) destroyed if the buyer wants to remove it.
        No, not really because of piracy.

        AFAIK:
        Because EULA restrictions like prohibiting the resale of the pre-installed software (or the transfer to another PC, e.g. if you wanted to sell or keep using the no longer needed Windows of the PC that you tossed out) were ruled
    • by Infonaut (96956) <infonaut@gmail.com> on Saturday February 03, 2007 @12:55PM (#17874500) Homepage Journal

      In the United States, both forms of license agreement are binding. However, they must be presented in such a way that the mythical "reasonable person" would find them before using the product or service being licensed. For example, you can't place the shrinkwrap license on page 52 of the user manual for that new Dell. It has to be obvious, easily-spotted, and not buried in the box. With clickwraps, the Specht v. Netscape [wikipedia.org] case established that they must be presented in a fashion such that it is clear and obvious that there is a license involved. You as the end user can elect not to read it, but you have been presented the opportunity to read it, so the law assumes that you have.

      However, contract law in the United States still provides that bizarre terms in a licensing agreement will be held invalid. That does not mean that the entire contract is invalid, just that the offending sections would be. For example, if I buy a new iPod and the license agreement states that the first $10k I make next year will be sent to Apple in order to fund their 2007 New Years Eve party, such a term would be found by a court to be outside the boundaries of a license relating to an iPod purchase.

      None of this means that EULAs aren't a pain in the ass. They are a pain to deal with, even for lawyers. I worked on one a while back, and I can see why they become so complicated. Corporate lawyers want to protect themselves from users who see juicy targets in successful companies. For example, EULAs relating to Internet services always have sections dealing with reliability of service. Companies have to expressly say that they are not guaranteeing 100% uptime, or someone will come out of the woodwork and sue them, saying they had a reasonable expectation of 100% uptime because the company marketed itself as a very reliable provider. Companies put in a lot of redundant language because they are trying to make it abundantly clear as to what they are not agreeing to and not guaranteeing. That way they they can defend themselves in court by saying that anyone who had even glanced over the EULA would understand that the company went out of its way to inform the user.

      Unfortunately the effect is a complicated, hard to read document. Contract lawyers are slowly starting to change their approach. I've seen a few EULAs that use far less language, in an attempt to make the contract more intellible. Their argument in court would then be that although they didn't put in redundant language, their language was brief and clear enough that it was more likely to be read. I personally think this is a smarter, more common-sense way to go.

      • I don't believe this question has been fully litigated yet. It's fairly basic -- when did the transaction consummate and what were the terms on notice? In the case of OTC software, it's a simple retail sale, and absent very explicit and obvious terms on the outside of the package, any extra inside or via click-wrap is simply overreaching after the transaction has been consummated.

        OTOH, the typical web click-wrap done before payment might well be valid. Ditto for free downloads.

        • Re: (Score:3, Informative)

          by cpt kangarooski (3773)
          Well, there are two conflicting schools of thought. One is the ProCD line of cases, where the EULA is part of the overall sales transaction that included going to the store and buying the box; so long as you can reject the terms and return the software, if you agree to the terms, they're valid, since they don't come after the sale, they're just a delayed part of it. The other is from Kloeck v. Gateway, IIRC, which says that the sales transaction doesn't include the EULA, and thus while they could arguably b
          • by redelm (54142)
            I'm really not sure about the logic behind ProCD: a return (most stores won't accept open software) does not nullify the contract, it just mitigates the losses on breech. The money has been paid, and the buyer travelled. Kloeck seems on much solider ground.

            But lawyers are advocates, and clients make opinions. At least publicly stated ones. The money against the BSA is very diffuse since big/medium.biz always signs full contracts. Only the little guy has to deal with EULAs.

            • What ProCD is saying re: returns is that the terms of sale of the software include the terms of the EULA. The EULA is presented after the buyer has taken the software home, but it's all one big transaction. If the buyer rejects the EULA, then he has rejected the entire sale. This isn't a breech, it is a rejection of the terms of the offer. That's why returns have to be possible. If the user can't return the software to someone for his money back, then he lacks a real opportunity at the time of EULA-reading
              • by redelm (54142)
                Oh, I see -- the cash payment is viewed as a deposit. This seems a violation of common-law sale, particularly the doctrine of first sale. What happens if the purchaser resells the software without installing it? How could a subsequent buyer get a refund?

                This seems like sophistry since there are lots of fairly convenient mechanisms to get consent. Things like product activation or updates. Of course they have marketting negatives, but then so are the EULAs which ought not be hidden. From UCITA on, pub

                • Oh, I see -- the cash payment is viewed as a deposit.

                  You could look at it like that, though I wouldn't necessarily use that precise wording.

                  This seems a violation of common-law sale

                  Who has that? The law of sales here is governed by the UCC.

                  particularly the doctrine of first sale

                  No, not really. First sale is only a limitation on how copyrights may be used. It doesn't have any impact -- at least, given the current precedents -- on how contracts and terms of sale may be used. Thus Alice cannot order Bob, usin
    • I make them work to my advantage. If it's legal to bind a unilateral contract to another party, when I encounter a EULA "acceptance" screen on my PC, I simply use a post-it note to replace the language with my own. Something like "By installing the software after the user clicks "I accept," the copyright owner grants full and unconditional rights to the user. This includes, but is not limited to, the right to copy, distribute, modify and reverse engineer the software without limitation."

      Fair is fair.
    • by gronofer (838299)
      The theory, that I've heard, is that if you don't have a license from the software publisher then it would be copyright violation to load the software onto a hard drive or into a computer's memory. Thus, the legal choices you have are to reject the license and not install the software, or accept the license and all of its terms and install it.

      If you install the software, claim the license agreement was not legally binding and you didn't accept it, what stops the publisher from suing you for copyright infr

      • by jZnat (793348) *
        Because you bought the software already when there was no agreement necessary in order to do so? Besides, you can install a lot of software without using the installer (and thus bypass the EULA) by extracting the files from the installer and copying them manually.
      • by Laur (673497)

        The theory, that I've heard, is that if you don't have a license from the software publisher then it would be copyright violation to load the software onto a hard drive or into a computer's memory.

        No. In the US copying a computer program to your computer for the purposes of running it is explicitly allowed by copyright law, as is the right to make backups. See Title 17, Chapter 1, Section 117. [cornell.edu]

        (a) Making of Additional Copy or Adaptation by Owner of Copy.-- Notwithstanding the provisions of section 106,

        • by gronofer (838299)

          This is interesting, although I wasn't thinking of US law specifically. I hope such provisions exist in copyright legislation elsewhere.

          The "Making of Additional Copy" is a bit ambiguous to me. I have to assume that it authorises multiple copies, e.g., a copy to a hard disk when the software is installed and another to RAM when it's executed. However in this case, it also seems to authorise installing copies on every computer you own, which is not an unreasonable thing to want to do, but it seems to be s

  • OMG companies really care more about themselves than they do about us? They want their rights to surpass ours? Surely it's because fundamentally we are all pirates, hackers and thieves just waiting for a chance to steal, defraud and otherwise screw them over. This should come as a surprise to NO ONE. They behave as though it's us versus them, thereby making it us versus them.

    • It really makes you wonder about the level of comprehension of some of those corporate shills. Don't those who are creating this policy realise that when they muck everything up to create profits for their company they suffer too. They, their friends, their family, are all subject to their decisions in the long run buy these shady legal tactics.

      So what happens when Best Friend Bob and Cousin Casey get a "cease and desist" letter / "sub poena" in the mail and they end up end jail because Mr Big Shot had to
  • ...for stealing his book title:

    http://craphound.com/?p=189 [craphound.com]

    Good job there's no shrinkwrap on books eh?

    • by AceJohnny (253840)
      Doctorow is very active in the field of copyright (against it's overreach). You can be certain he took adequate provisions to be able to use that title without problem.

      Doctorow is also a science-fiction author. You could also look up his "I, Row-boat" novella. Here's an excerpt from the intro:

      If I return to this theme, it will be with a story about uplifted cheese sandwiches, called "I, Rarebit."
      Copying is the highest form of flattery, they say...
      • by Bazman (4849)
        Copying eh? What did Picasso have to say about that? "Bad artists copy. Great artists steal."

    • by PhxBlue (562201)
      Titles can't be copyrighted.
    • Asimov would have difficulty doing so, being dead.
      • Since when did that ever stop anyone? With copyright lasting as long as it does, dead people sue over copyright violations all the time! 'Cause, you know, their corpse obviously needs that continuing incentive to create...

  • I think some of these EULA is not really to sue the customer and those who click the accept button. If is more like telling the wall street crowd and their sugar dadday investors that the operators of the dotcom or the website "we have take adequate provisions and we seriously discourage our users from engaging in piracy. Just look at what our customers have agree to by clicking our EULA".

    But still softwar installations have become very painful for many reasons. Everyone installs a link in the every user'

  • It isn't a new problem. Consumer credit contracts and insurance policies used to be terrible for the amount of impenetrable language and user-hostile terms. Don't fool yourself, most courts enforced those contracts, even if they were very one-sided. Legislation and regulatory action were required to eliminate the worst abuses.
  • 1) I am your master
    2) You are my slave, you shall obey my every command directed to you.
    3) You will on every Dec 26th starting at noon stand on one foot in a shopping mall or other crowded public place and howl 3 times, each howl being at least 6 seconds long, with a pause of at least 3 seconds between howls, and the howl being loud enough to be heard by at least 5 strangers 5 metres away. And you will try to get your friends to do the same thing as well.
    4) In event you are not capable of doing 3), you shal
  • by Lloyd_Bryant (73136) on Saturday February 03, 2007 @12:36PM (#17874352)
    Many of the posters in this topic seem to have adopted the "that'll never happen" mentality. After all, there's no real chance of a corporation *successfully* suing people over these outrageous EULAs, is there?

    I would like to remind those posters of the methodology used by the RIAA - threaten, harass, sue, and in the unlikely case that the victim actually puts up a fight, drop the case and run away.

    Consider how many people, in the face of a mere *threat* to sue from the RIAA, have rolled over and paid the amount that the RIAA was demanding? Perhaps these people are cowards. More likely, they simply calculated that paying up would be much cheaper than hiring an attorney and fighting it out.

    A EULA troll could exploit the same methods.

    And the only thing that could put a stop to it would be a firm ruling by the courts that EULAs are in fact non-enforceable. A ruling which the trolls would avoid like the plague by using the cut-and-run tactic whenever faced with somebody who appears inclined to fight.

    After reading TFA, I sat back and attempting to count just how many of those EULAs I had clicked through without bothering to read (after all, everyone *knows* that they are non-enforceable, don't they?). I can't be sure, but the number is most certainly at least three digits.

    I suspect that most *present* EULAs simply don't contain anything that could be used for this purpose. That doesn't mean that *future* EULAs won't include them *deliberately*.

    How long before Wiki has an entry titled "EULA bomb"?
    • Re: (Score:3, Interesting)

      by Wesley Felter (138342)
      You're behind the times; the BSA already uses these tactics. In particular, I've heard of BSA member companies convincing customers to buy redundant site licenses because it's cheaper than tracking individual licenses in case of an audit.
    • by wanax (46819)
      I wonder though, whether EULAs couldn't also be used as a defense against this type of trolling in a way patents can't. Suppose, for example, that a maker of a small, free-ware (popular) program, put a clause into their EULA saying in essence "You agree not sue any other end-users of this product".. if there were enough of these out there, any EULA-troll company would have almost certainly have clicked through on one of them, which would put them in a position of arguing both for and against EULA terms.

      Also
  • How long before spyware and virus start using them to sue users, anit virus apps, anit spyware apps, and so on for removing them and how long before that start using DRM and the DMCA as well?
  • Because the software "requires" you to? Not even remotely good enough. I've installed lots of software on my computer that "required" an EULA agreement that I wasn't interested in reading so I bypassed it and got the software installed anyways. There are dozens of ways that this is accomplishable, one of the most least technical ones involving one of my cats that likes to play with my computer keyboard if I leave it pulled out from my desk and I'm not sitting at my computer.
    • by Reziac (43301) *
      I vaguely recall that some adware already does this, and has used it against adware-removal software.

    • And since when did clicking on something constitute agreeing to a contract anyway? I've installed plenty of software too, and I never agreed to a damn thing. I merely clicked the buttons I was required to click in order to get my property for which the transaction of buying was already completed to work. To say that that binds me to some extraneous "agreement" is as fucked up and insane as (for example) having a car with a sticker across the door saying "by breaking this seal (and therefore being able to us

      • by mark-t (151149)
        It shouldn't, of course. But some might argue that indicating you agree to something when you really don't is falsely representing yourself and not an excuse for breaking an agreement. Therefore, I choose to not misrepresent my intentions and find a way to install the software without ever indicating I agree to a license whose terms I don't really agree to.
        • But some might argue that indicating you agree to something when you really don't is falsely representing yourself and not an excuse for breaking an agreement.

          But I didn't "indicate" anything! The software wouldn't install unless I clicked the button, so I clicked it. Doing so constituted an action to get my property to work, nothing more.

  • Imagine this hypothetical:

    I realize I had inadvertently agreed to an EULA after installing some software. But as you can see, I was prepared for this action. Because I was emulating a real (Windows) PC in a virtual environment, I was preparing myself for future situations. You see, my real host (primary) OS is a free, open source OS, and I use open source virtualization. This combined with proper snapshots, ensures my due diligence in making sure I can accurately restore said PC to such a state
  • There are people out there who license their shrinkwrap? That doesn't make any sense. I just buy mine in rolls from the office supply store. I can understand licensing something less tangible like software, but shrinkwrap?
  • This is an essay [vwh.net] I wrote over ten years ago on the subject of shrinkwrap "licenses". Were I writing the essay today, I'd probably spend some time drawing a distinction between end-user "licenses" and the GPL. But my opinion remains essentially unchanged.

    I never thought I was alone in my wholesale rejection of such "contracts," but it's nice to see validation from industry luminaries from time to time.

    Schwab

  • All he's got are some general, highly exaggerated stereotypes to spout out. Just two actual examples, which aren't that significant, and sure as hell don't lead him to the conclusion that you're going to be sued (when MICROSOFT goes out of business and sells their rights to a patent troll??? What?)

    Anybody who bothered to read a clickwrap or shrinkwrap agreement would never install any software, click on any link on the Web, open an account with anyone, or even shop at many retail stores.

    I have, and do.

  • by giafly (926567) on Sunday February 04, 2007 @05:20AM (#17879992)

    READ CAREFULLY. By [accepting this material|accepting this payment|accepting this business-card|viewing this t-shirt|reading this sticker] you agree, on behalf of your employer, to release me from all obligations and waivers arising from any and all NON-NEGOTIATED agreements, licenses, terms-of-service, shrinkwrap, clickwrap, browsewrap, confidentiality, non-disclosure, non-compete and acceptable use policies ("BOGUS AGREEMENTS") that I have entered into with your employer, its partners, licensors, agents and assigns, in perpetuity, without prejudice to my ongoing rights and privileges. You further represent that you have the authority to release me from any BOGUS AGREEMENTS on behalf of your employer.

    Put this at the bottom of your emails; print it on your stationery...
    The Small Print Project [netzoo.net] via Boing Boing [boingboing.net]
  • by internewt (640704) on Sunday February 04, 2007 @09:28AM (#17880822) Journal

    After I closed my paypal account, I had some spam from a market research company about paypal. I did not do their research, but emailed back with a rant (if it keeps an employee busy for even a few minutes, then I've managed to successfully waste some company money). Of course, I formatted the email like a n00b (i.e. the reply above the quoted text), but I made up a disclaimer below the text (hoping they would miss it):

    Disclaimer. Acceptance by the recipient's mail server to this message is acceptance of these terms by the recipient, as is any reply (including any "auto-response" or similar). Each and every further communication to/cc/bcc any [My Domain] address will be charged an administrative fee of £1000 (one thousand pounds sterling) by the email administration. Any terms on the ends of your emails are invalidated and over ruled by these terms. Attachment or inclusion of any type of "disclaimer" is acceptance of this policy, and this disclaimer is final (i.e. cannot be overridden or invalidated by any past or future disclaimers). [My Domain] decision is final over any matter, and you may not sue or take any legal action over future or past communications/contact.

    I never got any reply, but if I did I might have posted them some kind of invoice. It'd be a win/win situation - either I get a grand or a court rules that email disclaimers or EULAs aren't legally binding (OK, maybe I'm being a little optimistic).

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