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].'"
Reading the what? (Score:5, Funny)
This shouldn't be an issue here.
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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.
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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
Do we have fair-use rights to EULAS? (Score:4, Funny)
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... "
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Else it would be legal to censor critics...
Re:Do we have fair-use rights to EULAS? (Score:5, Funny)
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I think there is something about contract laws that allow for standardization and boilerplate. By now, they've probably basically been public domain, if not by how long standard contracts have been available, then by how widespread they are without anyone raising a stink.
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.
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To my mind, this describes almost all movies, most literature, and an awful lot of software.
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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
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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
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Well, you're kind of confusing the scènes à faire doctrine with the merger doctrine there.
Obviously you're right. Thanks for the clarification.
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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.
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Are they actually binding? (Score:1)
Re:Are they actually binding? (Score:4, Informative)
Except for all the country... (Score:3, Insightful)
Re:Except for all the country... (Score:4, Informative)
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).
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"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
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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.
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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.
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They don't --- they expect you to click away your rights or hire a lawyer. What are most people going to choose?
Not the point (Score:2)
But they basically can't. So bend over and click "Accept".
Not legally binding anyways ... (Score:5, Informative)
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Re:Not legally binding anyways ... (Score:5, Interesting)
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At which point, in some places, either you or you-on-behalf-of-your-kid will be directly liable for copyright infringement.
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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.
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>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
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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
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.
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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.
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That's nothing new
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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?
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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
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Lots of things appear to be a direct result of reading the law, and in any sane legal system that would be all that was necessary to established their veracity. However, I am aware of no sane legal system in the western world, and we see all too often that a court ruling does not go as the pundits expected. Therefore, unless it's been tested in court, or at least I see a direct legal opinion from a suitably qualified lawy
Clickwraps and shrinkwraps are binding in US (Score:4, Interesting)
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.
Re:Clickwraps/shrinkwraps are binding in US? (Score:2)
OTOH, the typical web click-wrap done before payment might well be valid. Ditto for free downloads.
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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.
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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
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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
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ProCD didn't really explore who the contract was between, but it was between the software publisher and the user. The precise nature of the retailer's involvement wasn't an issue in the case, so it wasn't looked into.
ProCD is here [findlaw.com] and Klocek is here [unlv.edu].
Except that you don't need permission to run the software from the publisher, because 17 USC 116 says you can anyway.
You mean section 117.
ProCD was interesting anyway, because
Darn! Because... (Score:2)
Fair is fair.
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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
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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]
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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
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.
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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
Asimov to sue Doctorow... (Score:2)
http://craphound.com/?p=189 [craphound.com]
Good job there's no shrinkwrap on books eh?
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Doctorow is also a science-fiction author. You could also look up his "I, Row-boat" novella. Here's an excerpt from the intro: Copying is the highest form of flattery, they say...
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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 wonder ... (Score:2)
But still softwar installations have become very painful for many reasons. Everyone installs a link in the every user'
Contracts of Adhesion (Score:2)
By reading this subject line (Score:2)
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
This *is* something to be worried about (Score:4, Interesting)
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"?
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Also
How long before spyware and virus start using them (Score:2)
How do they even prove you agreed to it? (Score:2)
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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
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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.
Linux + GPL + Virtualization = Defense (Score:2)
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
Wait a minute... (Score:2)
Shameless Self-Promotion (Score:2)
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
Stupid, pointless article. (Score:1, Flamebait)
I have, and do.
Cory's closing quote - Original and Link (Score:3, Interesting)
If you can't beat them, join them (Score:3, Interesting)
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):
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).
Re:Microsoft suing users? (Score:5, Insightful)
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I'd say it's more likely that we'll all simultaneously win the lottery at the same time. I'm not too worried about it.
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How you turned this into the whole article being about Microsoft suing people, I can only imagine.
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"remember you are having sex with everyone they have ever been with"
In this case its
"remember you are trusting every future owner of the ip"
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If I can get the patent on that, I'd be rich!
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He wasn't talking about Microsoft, he was talking about the equivalent of patent trolls. He was talking about being sued by someone who buys a failed company with whom you have such an agreement.
Re:Microsoft suing users? (Score:5, Interesting)
Then why is it there?
I hope you don't agree to a lot of contracts relying on a belief that they won't be enforced because "it's just dumb".
This latest corporate fad for retaining a claim to sue while offering a soothing "pledge" not to under vague, unenforceable conditions is lame in the extreme.
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You haven't spent much time working with lawyers, have you? It's just a CYA.
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The general motivation is to protect the company from lawsuits. There is the idea that the company has a lot of money and the user doesn't, and so this makes it possible for users to sue the company for mistakes without the company having any recourse. So by having these EULAs they can prevent frivolous lawsuits. Fair or not, that's the motivation.
But the article makes another point, which is that like patents, a troll could buy the remains of a company who has tons of users who agre
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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
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Then why is it there?
Well, two reasons really -
1 - to indemnify MS against any harm caused by its software to your business. That frees them from the fear of being expected to come up with a few hundred thousand dollars every time an exchange server crashes and two hundred salesman lose importan e-mails that cost a company money.
2 - to stand in for "rigerous maintenance" of its copyrights and trademarks - so that they need not fear losing control of their trademark by dint of not demanding that anyone anywhere who uses the
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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 d
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Bullshit - Microsoft is one of the biggest funders of the BSA - and I don't mean the "Boy Scouts of America". They threaten their customers with audits all the time.
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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]
hominem called, it wants its ad back (n.t) (Score:2)
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