Cory Doctorow on Shrinkwrap Licenses 125
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].'"
Are we really surprised here? (Score:2, Insightful)
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.
Re:Reading the what? (Score:1, Insightful)
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:Microsoft suing users? (Score:5, Insightful)
Re:Microsoft suing users? (Score:1, Insightful)
Re:Not legally binding anyways ... (Score:5, Insightful)
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.
Re:Microsoft suing users? (Score:2, Insightful)
How you turned this into the whole article being about Microsoft suing people, I can only imagine.
Except for all the country... (Score:3, Insightful)
Most EULAs are boilerplate (Score:4, Insightful)
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.
Re:Microsoft suing users? (Score:3, Insightful)
localman says:The general motivation is to protect the company from lawsuits...So by having these EULAs they can prevent frivolous lawsuits. Fair or not, that's the motivation.
The reason to have a clause in an EULA, or to have an EULA at all, is to intimidate the customer into abandioning rights they might otherwise exercise or otherwise cooerce their behavior. For example, the doctrine of first sale, or as localman points out, the right to sue for failure to perform on implied warranty of merchantibility (which I don't consider a "frivolous lawsuit" if a product has failed to reasonable perform, a judgement for a court to make, not a product support minion).
The only thing that makes such an "agreement" effective is the threat of enforcement...and the forum for that enforcement is the civil courts. "They'd never sue" to enforce a EULA clause is wishful thinking in the extreme; they'd sue the instant that they thought it would advantage them in acquiring maximum revenue.
Re:Except for all the country... (Score:3, Insightful)
"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) where it is the case.
Re:Clickwraps/shrinkwraps are binding in US? (Score:1, Insightful)
EULAs act as if they are permission from the publisher to run the software provided you abide by terms X, Y, and Z. Except that you don't need permission to run the software from the publisher, because 17 USC 116 says you can anyway. So as a contract, it seems like there's no consideration. Microsoft is offering you a permission you don't need in exchange for your compliance to the terms of the agreement.
EULAs as a condition of the sale on the other hand might make sense, except that EULAs talk about the publisher granting this and that right, while the receipt says you bought the product from Best Buy. If the EULA is a condition of sale from Best Buy, why does it say Microsoft requires X and Y in order to Z? After all, you have no relationship with Microsoft, only with Best Buy. Microsoft is a third party.
Re:Reading the what? (Score:3, Insightful)
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 EULAs like they had legal validity whether they really do or do not.
Those who pay the lawmakers decide nothing; those who pay the lawyers decide everything. Those who rig the elections decide nothing; those who rig the courts decide everything. Those who are in the right do not win; those who have deep pockets win. And so on, ad nauseaum.