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Privacy Your Rights Online

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].'"
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Cory Doctorow on Shrinkwrap Licenses

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  • by 6-tew ( 1037428 ) on Saturday February 03, 2007 @11:18AM (#17873298)

    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.

  • by Anonymous Coward on Saturday February 03, 2007 @11:22AM (#17873338)
    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.
  • by Chmcginn ( 201645 ) on Saturday February 03, 2007 @11:22AM (#17873342) Journal
    I know, I know, RTFA is so passe... but the point the guy was making was not that Microsoft was going to do this. The point was that some company is going to go bankrupt, and their obligations & contracts will get bought by somebody with the mentality of a patent troll. And that's when people will start getting sued. And if he/she/it's successful, it will encourage others to do the same.
  • by Anonymous Coward on Saturday February 03, 2007 @11:34AM (#17873430)

    I can't imagine Microsoft suing a customer over some small print in the EULA. That's just dumb.
    Like Microsoft would never do anything as dumb as giving Internet Explorer kernel blasting access and enabling ActiveX similarly and including it as a core part of the browser? Oh and didn't they just make a statement they would be enforcing their licenses strongly with small business? The list of dumb moves by Microsoft would be staggering if listed completely, but why bother, they don't get punished for their dumb moves, we do. Wonder if when they sue us we can give free software to schools to pay them off?
  • by Anonymous Coward on Saturday February 03, 2007 @11:38AM (#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.

  • by kirun ( 658684 ) on Saturday February 03, 2007 @11:44AM (#17873498) Homepage Journal
    Microsoft is mentioned in one paragraph, in page one, and the point about people getting sued is on page two, and refers to a company going bankrupt, being bought out by a company that doesn't sell anything (the troll), and the troll suing. Last time I checked, Microsoft sold actual products and was in no danger of going bust. Several other examples of questionable EULAs are given.

    How you turned this into the whole article being about Microsoft suing people, I can only imagine.
  • by aepervius ( 535155 ) on Saturday February 03, 2007 @01:20PM (#17874208)
    ... 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 Infonaut ( 96956 ) <infonaut@gmail.com> on Saturday February 03, 2007 @01:37PM (#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 MaggieL ( 10193 ) on Saturday February 03, 2007 @01:55PM (#17874490)
    Dogdude says: You haven't spent much time working with lawyers, have you? It's just a CYA.

    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.

  • by tdelaney ( 458893 ) on Saturday February 03, 2007 @05:21PM (#17876250)
    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) where it is the case.
  • by Anonymous Coward on Sunday February 04, 2007 @02:29AM (#17879292)
    In ProCD, who is the contract between, exactly? Do you have links to those two cases?

    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.
  • by ultranova ( 717540 ) on Sunday February 04, 2007 @11:45AM (#17881210)

    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 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.

"The only way I can lose this election is if I'm caught in bed with a dead girl or a live boy." -- Louisiana governor Edwin Edwards

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