Cory Doctorow on Shrinkwrap Licenses

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].'"

Re:Are they actually binding?

[Anonymous Coward]

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.

Not legally binding anyways ...

[jopet]

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:Microsoft suing users?

[tomhudson]

The BSA is concerned with issues of copyright infringement, not EULA violations.

Those copyright infringements are EULA violations, last I heard ... that's why the BSA does audits on the # of copies, etc. but nowadays insists that you need more than just sales receipts and/or original media and keys.

http://blawg.bsadefense.com/ [bsadefense.com]

A New Definition of Software Piracy

What is software piracy? Like many politically charged phrases, the definition of software piracy is influenced by your financial interests and your viewpoint. The Business Software Alliance defines software piracy as:"The illegal use and/or distribution of software protected under intellectual property laws."

The Business Software Alliance specifically includes unintentional business overuse in its definition of software piracy as follows:

"End-user piracy occurs when an individual or organization reproduces and/or uses unlicensed copies of software for its operations."

Armed with this definition of software piracy, the Business Software Alliance pursues global "anti-piracy" campaigns that include the targeting of many small to medium sized companies. The Business Software Alliance accuses these companies of engaging in software piracy and threatens them with litigation unless they voluntarily undergo a self audit. In my experience, the vast majority of the companies targeted by the Business Software Alliance are not pirates under anyone's definition, they have merely failed to maintain financial records related to software purchases that no one, including the software companies, ever told them they were required to keep. In addition, the targets of Business Software Alliance audits are not pirates because they never intended to violate software licenses or copyright laws.

Scott & Scott's Definition of Software Piracy

"Software Piracy is the distribution of counterfeit software and/or use or distribution of authentic software constituting the intentional violation of intellectual property laws."

Our definition of software piracy differs from that used by the Business Software Alliance in that our definition adds emphasis to counterfeiting and expressly excludes the unintentional over deployment of software by end users. Piracy implies theft which under the law requires intent. Any definition of software piracy that includes unintentional over deployment should be rejected. The definition used by the software industry and the Business Software Alliance improperly characterizes software owners as thieves because they have been, at most, negligent in the management of their software assets and documents.

Lost your license key, but still have your original CD and sales receipt? Not good enough for the BSA. Read all the gripes that businesses have about having to over-buy "just in case" the BSA "requests" an audit.

Re:Except for all the country...

[GodInHell]

... 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:Not legally binding anyways ...

[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:Most EULAs are boilerplate

[cpt kangarooski]

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 copyrightable. If there is only one way, or only a small number of ways, to reasonably express an idea, then the idea and the expression(s) merge. Protecting the expression would effectively be protecting the idea, and since the latter is forbidden, there can't be a copyright on the expression. One example of the merger doctrine involved the legal language in rules for a contest; there's only so many ways to say things like 'send your parents' brains, or write "Parents' brains" on a 3x5 card and send it.'

Scènes à faire deals with routine or stock scenes that are standard. For example, in a movie about draculas, you'd have a scene of a spooky castle at night, with a full moon and a wolf howl sound effect. That's so standard that it lacks creativity, which is a constitutional requirement for copyright. But if you have a wacky romantic comedy set in modern-day New York, that same scene, given the overall context, would not be a stock scene, and so would probably be copyrightable there. That copyright wouldn't really matter to the horror genre, but it could be notable in the romantic comedy genre.

Re:Clickwraps/shrinkwraps are binding in US?

[cpt kangarooski]

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 be agreed to, they aren't normally and thus aren't enforceable. Ultimately, IIRC, it all comes down to precisely how you interpret UCC 2-207. Personally, I think that Kloeck gets it right, apart from general dislike for EULAs. But ProCD has more supporters. And a legislative solution, restricting adhesive licensure somewhat, would be best.