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The Almighty Buck Your Rights Online

Fighting Back Against EULAs 620

Posted by timothy from the let-the-lawyers-drown-in-their-own-scum dept.
An anonymous reader writes: "Fed up with increasingly obnoxious click-through "agreements" embedded in the retail software I buy, I've posted a very simple script to remove them before clicking "I agree". Without the EULA, I am free to use my software within the bounds of copyright law. Courts have been very inconsistent on the enforceability of EULAs, and I hope this will strengthen consumers' side of the battle. The script is a symbolic gesture as much as anything else, and I want to get people thinking about how ridiculous it is that software companies try to force these one-sided contracts on you after you have paid for something. Also worth a look is cexx.org's Software Vendor License Agreement, which reverses the typical EULA and puts the burden back on the software manufacturer where it belongs."
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Fighting Back Against EULAs More

Fighting Back Against EULAs

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  • You broke it already... (Score:5, Interesting)

    by mlknowle ( 175506 ) on Wednesday May 01, 2002 @12:21PM (#3443616) Homepage Journal
    Remember those little stickers on the CD-ROM pouches? You have already agreed to read the agreement.

    Your script needs to be able to display the EULA, and get past it w/o cliking "agree" or whatever.
    • Remember those little stickers on the CD-ROM pouches? You have already agreed to read the agreement.


      But who says I read the sticker on the CD-ROM pouch?

      • As far as I'm concerned, any agreement that I make in the purchase of software occurs before you accept my money. Once the money is accepted, the agreement is binding. Clicking on the 'i agree' button is just a stupid human trick that I have to go through to get the software that I purchased to do what you told me it would do.

        Imagind if you purchased a car, and the first time you went to fill it up at the gas station, you found a sticker that said:

        By breaking the seal on this gas cap, you agree to the following conditions:

        You will not open the hood of your car.
        You will not make any modifications to the engine
        You will not drive it on any road not sanctioned by GM.
        Even if the car fails to function as promised, you will not attempt to figure out how any of the features work.
        You agree that GM is not liable for any defects in workmanship or design -- even if such defects cause your vehicle to periodically stop dead on train tracks, or spontaneously explode in a ball of flame that makes Die Hard's special effects look mundane.
        I don't think that any court in the country would accept that as a binding contract -- yet people expect that to work for software.
      • But isn't the script modifying the software therefore breaking the rules anyway? As to stickers on CDs - what if the person's blind and can't see the EULA or the sticker?

    • Hot steam (Score:4, Funny)

      by BlueUnderwear ( 73957 ) on Wednesday May 01, 2002 @12:58PM (#3443967)
      Remember those little stickers on the CD-ROM pouches?

      No problem: use hot steam to melt the glue and gently detach them, rather then "breaking" (i.e. tearing) them. Or just cut through the pouch at the other end, and take the CD out from the rear without "breaking the seal".

      Then keep the intact "seal" on file along with all the other license documentation, as proof that you did not agree ;-)

    • Re:You broke it already... (Score:4, Funny)

      by infinite9 ( 319274 ) on Wednesday May 01, 2002 @01:37PM (#3444306)


      You have already agreed to read the agreement



      Can we just agree to disagree with the agreement?

  • Just a thought. (Score:5, Interesting)

    by Dr. Bent ( 533421 ) <ben&int,com> on Wednesday May 01, 2002 @12:22PM (#3443627) Homepage
    I've always seen on EULA's something to the effect of: "If you cannot accept this agreement, please return this product to the retailer you purchaced it from". Has anyone ever actually done this?...Returned opened software saying 'I couldn't accept the license agreement'? Could you use this as a way to get around the Windows tax on new PCs?

    • Re:Just a thought. (Score:2, Informative)

      by krails ( 7812 )
      That was the whole point of the Windows Refund day. Everyone was supposed to ask for refunds from their PC vendors when they didn't agree to the EULA that came with bundled copies of Windows.

    • Re:Just a thought. (Score:5, Interesting)

      by TheABomb ( 180342 ) on Wednesday May 01, 2002 @12:27PM (#3443659)
      You can try this, but most retail outfits (at least, the ConglomoCorp Chains) have "no-returns-on -opened-software-except-for-same-title-exchanges" policies. The same policy applies to software, music, and movies. IANAL (yet), but one could try to make the case that if their end of the license is not upheld, then you are free to do with your junk CD as you please.

    • Re:Just a thought. (Score:5, Interesting)

      by keesh ( 202812 ) on Wednesday May 01, 2002 @12:31PM (#3443702) Homepage
      I did it once on some software which was supplied with a PC I bought. Note that this is in the UK, so we can get away with a few things that you USians, erm, Americans probably can't.

      Basically it went like this:

      Me: How much would you take off for not installing Windows 98?

      Sales Droid: We always install Windows 98.

      Me: I don't want Windows 98

      (five minutes of this, you know the story)

      I gave up eventually. The machine was underpriced anyway, even including the 'tax'. They'd already installed the OS, so there was no way I'd be able to get that off -- they'd clicked 'I Agree' for me, I suppose.

      What I did get a discount for was all the nonsense that came with the computer. Basically, Office, some virus scanner and so on. I had to take it to the store manager, who told me he'd never heard of anyone not accepting the license agreement before, but eventually he refunded me for everything except the OS.

      Why they wouldn't sell me the computer without the software to begin with, I don't know... Probably to reduce all the idiot calls they get from people who thing Windows is a 'Word Processor' (I'm not making this up, I've heard that one a few times).

      So, anyway, it's worth a try, so long as you don't value your sanity too much.

      • Re:Just a thought. (Score:4, Interesting)

        by whovian ( 107062 ) on Wednesday May 01, 2002 @01:14PM (#3444113)
        Do these EULAs explicitly permit this -- what is essentially a transfer of the agreement from a sales company (implicitly approved of by the software manufacturer) to the consumer?

        If they are transferable, then in my view there are two logical outcomes: Either the customer has the right to see the EULA on demand, or the sales company who is agreeing to the EULA for the customer ought to be liable for any misuse of the software by the customer.

    • Re:Just a thought. (Score:5, Interesting)

      by sheetsda ( 230887 ) <doug@sheets.gmail@com> on Wednesday May 01, 2002 @12:34PM (#3443735)
      "If you cannot accept this agreement, please return this product to the retailer you purchaced it from". Has anyone ever actually done this?...Returned opened software saying 'I couldn't accept the license agreement'?

      The way you do it is to exchange your "defective" copy first, then return the unopened one they give you.

      • Re:Just a thought. (Score:4, Informative)

        by Ronin SpoilSpot ( 86591 ) on Wednesday May 01, 2002 @02:50PM (#3444946)
        I tried to return a Win2K to the shop after having second thoughts. It was an academic license and I wasn't technically a student any more, so I failed to meet the requirements. The shop ofcourse refused to have it back (it was open, how else could I read the requirements), but in the end they gave me 90% of the price back. I complained to the local Microsoft office and they basically admitted that they had no way to force the shops to accept their "return to shop" policy even if it is printed on the box.
        They did give me a free WinXP Pro instead, so I'll live.

        /RS

        • Re:Just a thought. (Score:3, Insightful)

          by AntiNorm ( 155641 )
          I complained to the local Microsoft office and they basically admitted that they had no way to force the shops to accept their "return to shop" policy even if it is printed on the box.

          So what makes them think they have any way to force you to accept all the little policies in the EULA?
    • Sorry, but do you really think they actually MEAN anything in the EULA that benefits you? Hardly. Sure, you can return it to the retailer - but they don't have to accept it. It doesn't say you'll get your money back, now does it? :-)

    • Re:Just a thought. (Score:4, Funny)

      by drDugan ( 219551 ) on Wednesday May 01, 2002 @12:40PM (#3443787) Homepage
      I purchased a shrink wrap machine years
      ago. sits out in my garage. I've never
      had to worry about returning anything in
      a plastic wrapped box!

    • Unfortunately in the case of the windows tax you probably have to return the whole PC because you bought it as a single item.

      However you are entitled to return opened software (for a refund) if it doesn't meet your requirements - this right is provided by the Uniform Commercial Code - The reasoning is that you can't examine the software in the store so you are granted a reasonable period to examine the software at home.

    • Re:Just a thought. (Score:3, Interesting)

      by yamla ( 136560 )
      I tried this at Future Shop [futureshop.ca] and they refused to even accept it back. I pointed out that I refused to accept the license agreement and it said that I could return it to my place of purchase but they did not agree. I couldn't be bothered to cause any more fuss but if I get bored one day, I may try it again and get them either to pull off all copies of the software they are selling (because they are refusing to honour the agreement) or give me a signed document stating that I am not bound by the EULA.

  • If you read this... (Score:3, Funny)

    by jhines0042 ( 184217 ) on Wednesday May 01, 2002 @12:22PM (#3443630) Journal
    ... Then you agree that I am free to use your brain to make you think about pink elephants.

    That is all.

  • Although... (Score:2, Informative)

    by bhsx ( 458600 )
    it seems like this is at least 'unethical,' it seems a great way to point out the ridiculousness of these gawd-aweful 'legal' contracts. C-net/downloads and other pushers of EULA-ridden software downloads should feature this on their frontpage. Get everyone to start seeing these contracts for what they are.
    • It would also be fun to have a random EULA generator which puts together a few stock phrases and the occasional ridiculous condition (you agree not to tell anyone you are using this software, etc) into a new licence 'agreement' for each app. A Linux distribution could arrange for it to run whenever application is started for the first time.
    • it seems like this is at least 'unethical,'

      I wouldn't say it's any more 'unethical' than the thing it's protesting...

      :wq

  • So where's the EULA for.. (Score:3, Insightful)

    by Dynamoo ( 527749 ) on Wednesday May 01, 2002 @12:24PM (#3443643) Homepage
    So where's the EULA for this dodgy looking script? Then.

    Great idea. Maybe I can take down the speed limit signs in my neighbourhood so I can go as fast as I like. Doh.

  • Reverse Engineering though... (Score:3, Interesting)

    by Traicovn ( 226034 ) on Wednesday May 01, 2002 @12:24PM (#3443646) Homepage
    If I am correct that may constitute REVERSE ENGINEERING the software though, which may not be allowed under the DMCA, it's a neat idea, but might not hold up in court, and might actually cause aditional headaches...
    • While the author of the script may have reverse engineered the installer, a user of the script certainly doesn't. The user of the script just runs it, gaining zero knowledge of how the installer works.

  • I was thinking about this a few days ago...

    Send the EULA back to the company with a letter saying that you do not agree to the terms.

    See what they can do to stop you from using their software.

  • Lets have fun with EULAs... (Score:5, Funny)

    by Xunker ( 6905 ) on Wednesday May 01, 2002 @12:27PM (#3443669) Homepage Journal
    I'm going to write some fantastic whizz-bang piece of software just for the pleasure of writting a EULA with a clause that goes "The lisencee of this product must wear a gorilla suit while using said product. Upon violation of this clause, the lisencee agrees to send the author Five (5) kiliograms of Reeses-Pieces(TM) Brand Peanutbutter candies."
    • The trouble with this, and with EULAs in general, is that the legal system assumes people will be using it at least SOMEWHAT in good faith.

      The onslaught of psychotic powermongers causes problems because the legal system isn't really geared towards asking, 'wait a minute, does this make any sense or is it just a deranged outburst in legal form?'.

  • Violation of the DMCA (Score:2, Interesting)

    by aozilla ( 133143 )
    Unlike many of the strawman arguments against the DMCA, this instance actually is a violation. You're distributing software which circumvents a technological measure that effectively controls access to a copyrighted work. Hopefully you'll go to jail, and we can get our first legitimate constitutional test of the DMCA.
    • Let me try to understand this folks. Overwriting the EULA is a violation of the DMCA?

      This is saying that the contract is part of the software. For this to be true, it would have to be acknowledged that the license was put to the customer AFTER the customer has already run the software, and BEFORE the EULA. So, since the customer had already begun legal use of the software before entering into the EULA, isn't it a bit to late for Microsoft to enforce usage terms? You can't tell the customer that you have the right to change terms unless you tell them that before they start using the product.

    • Go look at the script. If that's all it takes, I'd argue that the measure wasn't effective.

  • Selective Enforcement? (Score:4, Interesting)

    by photon317 ( 208409 ) on Wednesday May 01, 2002 @12:29PM (#3443682)
    Aside from the "real" issue that EULAs are morally wrong, surely an appeal can be made to non-enforcement. I don't know the legal wording, but it seems there's probably a way to say in legal terms "Look, this law/contract gets broken hundreds of times per day, and nobody really cares or enforces it, therefore when you single me out and enforce a EULA on me, you're really being discriminatory and using the law/contract to acheive some other goal".

    There must be some legal precedent for the concept of "If you never actively enforce a law, and allow it to be broken (in obvious publicly-visible ways) over and over, you can't then go at a later date enforcing it at will on specific people you decide to target, it's not right".

    For that matter, if such a legal principle exists, I'd really like to see someone apply it to the traffic ticket system as well.
    • Estoppel? [google.com]
    • How are all EULAs morally wrong? If I want to sell software on a per-machine basis, I can make you agree either in a paper contract or a EULA that you'll only install it on one machine. If you were to abolish the EULA, I as a developer, would refuse to grant you license to use the software unless you were to sign a paper contract. Or I could do something draconian like build in enforcement of 1 pc into my software. Most contracts and EULAs have an important thing in them. The company selling you the stuff owns the software. You own the CD. They merely are selling you the right to use the software under certain conditions. In principal, this is a reasonable thing to do and not immoral at all.


      Two things brought up are immoral. The first is unreasonable contracts that realistically are rarely read. Unreasonable contracts can be thrown out in court. Also, using unreasonable contracts to harrass people is also slimy. These techniques are underhandy, slimy, mean and hard to defend.

      The other thing is say things like, "X is immoral" or evil or the bane of the free world without supporting it. That's just slinging trash around. The only arguement I can see that all EULAs are immoral is that software should be Free etc etc. That one is still up for debate.


      Basically though, a good EULA is like any other good contract. It clarifies the intent behind the sale and lays down what each party should expect from the other. It lets the user know that if the software blows up the computer, the company selling it won't help. Not helping might be bad, but at least there is acknowledgement of what behavior is expected. At the same time, the end user agrees not to try to burn 50 copies and sell them on the open market.


      Bad EULAs can be used to underhandedly impose the will of a company on the user. A good one clarifies what is expected of the parties. Good ones are not morally wrong. It's sloppy to say that EULAs are morally wrong in general.

  • What's interesting (Score:5, Informative)

    by GSloop ( 165220 ) <`networkguru' `at' `sloop.net'> on Wednesday May 01, 2002 @12:32PM (#3443717) Homepage
    about this, is that the SW companies want to treat the EULA like a contract. But there's no negotiation. The power of the parties is vastly different. Take it or leave it contracts often don't stand.

    I'm obviously not a lawyer, but these are points that have come out in court, when contracts are challanged.

    What's so interesting about this, is that it gives the user a chance at negotiation. Sure, it's a farce, but so is the "contract" the EULA tries to put in place. (There's no consideration - you bought the software - money for package - there's the consideration. Now, you must click the EULA too? There's no consideration (transfer of something valuable) happening then, so no contract can ensue.

    So changing the contract to something else isn't any more crack-pipe'ish then the usual EULA.

    Lastly, have you ever read any of those EULA's? I'd bet that 10 lawyers would come up with 10 significantly different interpretations of the "contract." That doesn't even take into account what the courts might do. So, reading your own EULA is almost futile, and who can afford to get an expert legal opinion on 10+ pages of legaleese for every software product they buy.

    EULA's need to get challenged in court, and struck. UCITA needs to die an ugly and nasty death. With UCITA, EULA's will have the real power of law, not just a sham that the SW companies want you to believe.

    Make sure you discuss UCITA with your STATE representatives. UCITA has to pass in your state for it to make it into UCC. You might even consider working to pass laws that provide protections against vendors who are (or will be) in UCITA states.

    Cheers!

  • Dangerous misunderstanding of "No EULA" and law (Score:5, Interesting)

    by Seth Finkelstein ( 90154 ) on Wednesday May 01, 2002 @12:34PM (#3443732) Homepage Journal
    Without the EULA, I am free to use my software within the bounds of copyright law.
    This is very dangerous and misleading! There's much law which says you are NOT THE OWNER of the copy, and so you are not reading section 117 [cornell.edu] correctly. I know, it sounds wrong. I know, it sounds illogical. But that's the law. There's no gimmick, no magic.

    See, for example, the comments about the MAI Systems decsion in this paper [arl.org]:

    Title III was proposed in response to the decision in MAI Systems Corp. v. Peak Computer, Inc.53 MAI involved the limitation on the exclusive rights in computer programs contained in 17 U.S.C. 117, which allows the "owner" of a program to load the program into the machine's random access memory, or "RAM." In MAI, an independent service organization (ISO) serviced a computer which used software licensed to, but not owned by, the customer. The court held that the ISO infringed the copyright in the program by loading the copyrighted software into the RAM of the customer's computer, thereby making a "reproduction" of the copy under 17 U.S.C. - 106. The MAI court ruled that Section 117 only exempted "owners" of software and not "licensees." Title III amends Section 117 to effectively overrule MAI by allowing the owner or lessee of a machine to make or authorize the making of a copy of a computer program under certain conditions for the purpose of repair or maintenance of the computer hardware.

    Specifically, the making of the copy is allowed (1) if the copy is made "solely by virtue of the activation of a machine that lawfully contains an authorized copy of the computer program, for purposes only of maintenance or repair of that machine," (2) if the new copy is used for no other purpose and is destroyed upon completion of the maintenance or repair, and (3) if "any computer program ... that is not necessary for that machine to be activated ... is not accessed or used other than to make such new copy by virtue of the activation of the machine." Significantly, the exception applies only to RAM copies made during the course of hardware maintenance, not software maintenance.

    Disclaimer: I am not a lawyer.

    Sig: What Happened To The Censorware Project (censorware.org) [sethf.com]

    • There's much law which says you are NOT THE OWNER of the copy

      Huh? What law is that? You are the owner of the copy. Not the owner of the copyright, but the owner of the copy.

      See, for example, the comments about the MAI Systems decsion

      Huh? "Title III amends Section 117 of the Copyright Act to ensure that independent service organizations do not inadvertently become liable for copyright infringement merely because they have turned on a computer in order to service its hardware components." The whole point of Title III of the DMCA is to avoid that decision in the future.

      • Huh? What law is that? You are the owner of the copy. Not the owner of the copy\right, but the owner of the copy.
        That's where things get very weird, with the MAI Systems Corp. v. Peak Computer decision. The whole part of the DMCA (Title III) was to overturn that law, but only in the context of hardware maintenance. But it shows that there is law considering that running a program without licence is considered copyright infringement.

        The poster has the idea "I own this copy. Therefore, I can run the program, except the EULA takes away my rights in it. So ha-ha-ha, hack-out the EULA, and I keep all my rights". The flaw in this may be that the very understandable chain of reasoning, is wrong. That is, the situation may be that you own the disk, but not the right to run the program, unless you agree to the EULA.

        I don't like this. But ignoring it won't make it go away.

        Disclaimer: I am not a lawyer.

        Sig: What Happened To The Censorware Project (censorware.org) [sethf.com]

      • Huh? What law is that? You are the owner of the copy. Not the owner of the copyright, but the owner of the copy.

        Wrong. You own the license, not the copy.

        Ahem, and I quote:


        19. The Product is protected by copyright and other intellectual property laws and treaties. Microsoft or its suppliers own the title, copyright, and other intellectual property rights in the Product. The Product is licensed, not sold.

        Catch that last sentence?

        Also, to the original article poster: whatever your twisted interpretation of EULAs are, it's flat out wrong wrong wrong. Here, this is straight out of the WinXP EULA:

        YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY INSTALLING, COPYING, OR OTHERWISE USING THE PRODUCT. IF YOU DO NOT AGREE, DO NOT INSTALL OR USE THE PRODUCT; YOU MAY RETURN IT TO YOUR PLACE OF PURCHASE FOR A FULL REFUND.

        If you don't agree... you can't just simply remove the EULA and say you don't agree -- you're still in violation!!! It's like I walked down the street, unbolted the "NO PARKING ANYTIME" sign from the post and say "well, I didn't agree to the sign, so I removed it, and now I can park here persuant to normal traffic laws!"

        • Re:Dangerous misunderstanding of "No EULA" and law (Score:5, Insightful)

          by Dr. Awktagon ( 233360 ) on Wednesday May 01, 2002 @01:49PM (#3444384) Homepage

          The argument you're making is in fact the entire point: just because Microsoft printed words in their EULA, that doesn't mean they are a binding legal contract.

          I consider EULA's to be simply a promise by the software vendor: we promise not to sue you if you do this and this, etc. That does not automatically mean they are morally or legally right, or that they would win such a lawsuit.

          That's all that makes EULA's "binding": the threat of being sued. The software companies know that their power is tenuous here, and hope for legislation like UCITA that really makes it binding. ANY company would love to be able to dictate exactly what you could do with their product, so they could bill you for the different "privileges" of doing different things with the product.

          Imagine if Ford said that by displaying the Ford trademarked logo in public, including on your car, you agree to a "Ford logo license", which says you can only drive 35mph or slower. For $1 per mph over 35, you can earn the privilege of driving over 35mph. Whenever Ford needed more income, they could just adjust the fees and cutoffs (be sure to check ford.com weekly for license updates) until they maximized profit. Whenever that didn't work, they could just send in the "Ford license enforcers" with speed guns, because somebody somewhere is probably violating the license. And if you don't keep accurate records of your speed, they offer you a settlement in compromise, just like the friendly folks at the BSA!

          EULAs give software vendors too much power. The best thing to do is use Free/Open Source software, next best thing is to ignore the EULAs.

    • This is very dangerous and misleading! There's much law which says you are NOT THE OWNER of the copy, and so you are not reading section 117 correctly. I know, it sounds wrong. I know, it sounds illogical. But that's the law. There's no gimmick, no magic.

      What about this [linuxjournal.com], which is a court finding that says that despite the EULA, the exchange of money for software is a sale. From the article in question:

      "The Court understands fully why licensing has many advantages for software publishers. However, this preference does not alter the Court's analysis that the substance of the transaction at issue here is a sale and not a license," Judge Pregerson writes. If you put your money down and walked away with a CD, you bought that copy, EULA or no EULA.

      Here's a link [cryptome.org] to the full text of the decision.

  • EULAs and Return Policies (Score:4, Insightful)

    by athakur999 ( 44340 ) on Wednesday May 01, 2002 @12:36PM (#3443751) Journal
    The problem with most packaged software is you don't see the EULA until after you've opened the box, and many stores will refuse to refund money on opened software. Effectively, this means if you don't accept the EULA theres nothing you can do, aside from finding someone else to buy it off you, most likely at a loss.

    As for this software, I can't see it holding up in any court. You can't say "I shut my eyes everytime I drove past a speed limit sign" and expect a judge to let you off the hook for going 120.

    This also removes any incentive for companies to change their EULAs. After all, they're still getting $50 or whatever from you, whether you avoid the EULA or not. Vote with your wallet people...
    • You can't say "I shut my eyes everytime I drove past a speed limit sign" and expect a judge to let you off the hook for going 120.

      The difference is that the speed limit is a law, and EULAs certainly aren't.

      How do you suggest people be bound to the terms of contracts they never agreed to? While a click-through license is something of a legal grey area, unagreed-to contracts don't seem to be; the day after you buy a new car, Ford can send someone to your house demanding you sign a contract that says "Everytime you drive over the speed limit, you pay for $100," but if you don't sign it, there's no way that you're going to be bound by it.

      The software manufacturers tried to set things up so that you must "agree" to their contract before you install their software. This script allows yo to install the software without agreeing to the license. So how can you be bound by the terms of the license?
    • IANAL, but generally speaking, in order for a contract to be valid, it must not be made "under duress." For example, if a criminal broke in and forced you at gunpoint to sign over your house to him, the contract would be unenforceable because one of the parties made the decision under duress. Likewise, someone who is drunk, under age, or mentally ill cannot legally enter into a contract.

      In the current instance, clearly, one party is under duress because they cannot return the software to the store for a refund - the vendor won't take it back - a stipulation often made by software companies. Thus, the end user's only option is to not install the software (thereby losing the purchase price), or click the "I agree" button. Since the contract is made under the threat of losing the purchase price, the user is not legally able to enter into the contract relationship - the option to back out of the contract is not really an option at all. Thus, most EULA's are unenforceable without this software.

  • Attempts to circumvent the broken way commercial software is treated in the US are, while sometimes amusing, ultimately counterproductive.

    The best way to deal with restrictive EULAs is to use alternative software that is without such restrictions. Where there are no alternatives, and where the software is essential to some necessary task, the EULA will have to be accepted (or the task avoided) - at least until a freer alternative is created. But where there are alternatives, use the software with the better, more customer-centric license.

    Stunts such as these don't really change anything. The manufacturer still gets the money from the sale, encouraging him or her to continue down the path of greater and greater restrictions of user freedoms. Better never to buy the software at all.

  • Textarea (Score:3, Funny)

    by red5 ( 51324 ) <gired5@gmail . c om> on Wednesday May 01, 2002 @12:41PM (#3443798) Homepage Journal
    My favroit EULA have alwase been the ones used in online forms. Where they put the EULA in a <TEXTAREA>.
    I remove all the text and replace it with "I AGREE TO NOTHING".
    Is this still legaly binding?

  • DMCA Lawsuit waiting to happen... (Score:3, Insightful)

    by supabeast! ( 84658 ) on Wednesday May 01, 2002 @12:41PM (#3443803)
    Good god... someone start a clock that runs until lawsuits force google to shut this down and the feds arrest everyone who posts a mirror. Save this one to a text file!
  • ... is that you cannot, that I'm aware of, go build your own. I went and did some laptop shopping the other day, and I think it was Gateway that was trying to force Office XP on me. I can't buy an OSless laptop, at least not from a reputable dealer. I can't go buy the components to build a laptop. MS has a monopoly here that the retailers helped create.

    Anybody have any tips for me? I have a feeling I'm going to have to pay the MS tax, at least for now. But one of my biggest hopes is that Linux laptops will start to become popular, then the legitimate copy of Win2k that I've bought can just be transferred over, instead of having a brand new license that cost me money.
    • Anybody have any tips for me?

      Go here [qlilinux.com].
    • The next best thing to building your own:
      http://www.emperorlinux.com/
      Laptops, note books with linux already installed.
      If you're keen on building your own, your can usually pick up an older type laptop for cheap, and then start from there.
      People have been working on this kind of thing for quite a while. Do a google search on "Build your own laptop"
      Good luck!
    • 1. Buy broken laptops on ebay/elsewhere.
      2. Scavenge each for parts and build 1 good laptop.
      3. Sell remains of scavenged laptops on ebay to similar persons, possibly for what you bought them for.

      My GF recently received a laptop with a busted screen. Cost for OEM LCD? Like 400US. Cost for a stripped laptop with an unbroken screen? 50US. Selling price for same laptop sans screen? 40US to someone who needed the keyboard because OEM keyboards are almost as ridiculous.

      Plus my GF got the shipping insurance, which more than covered the 10US net for the screen.

  • Easy to solve! (Score:5, Interesting)

    by jurros ( 110198 ) on Wednesday May 01, 2002 @12:45PM (#3443847)
    Here's what I do is every time I have an EULA on my screen: I just let my under age son agree to it! Contracts to minors are unenforcable!
  • Instead of removing the EULA, we should change it to say By clicking "I agree" the licensee agrees to receive $1000 and two tickets to Disneyland from the software vendor.

    Think that will hold up in court?
  • Nobody is going to care about this.

    What someone really needs to do is blatantly violate a stupid eula clause and tell the whole world.

    For example, someone needs to buy a copy of SQL Server or Oracle and publish benchmarks about the product, thus violating the EULA. Or guy that M$ devel kit and write some GPL's software. Then, when they get taken to court, take it as far as it will go.

    Yeah, I know... us mere mortals without bottomless pockets simply can't afford to do this. I can still dream that some tech-savy, eccentric millionaire will take on such a cause.

  • Maybe the thing to do when installing the software would be to click the "I do not agree" button.
    Then call their tech support line (if it exists!) and complain that the installation program is broken because it fails to install the software.

  • fundamental question (Score:5, Insightful)

    by drDugan ( 219551 ) on Wednesday May 01, 2002 @12:49PM (#3443890) Homepage
    lots of people are writing and talking about
    following laws, this law, that law etc. The
    discussion really is a specific instance of
    more fundamental questions:

    When a law doesn't make sense, should people
    follow it? At what point do you realize
    that the motivations of the people creating
    laws are not aligned with their interests?

  • By long-standing common law precedent, if you cross your fingers while you click, you don't have to abide by the terms. If you feel like going the extra mile, you can tell the dialogue box in person that you don't accept some or all of the provisions.
  • When I bought my car they made me sign a EULA. It said that I must fill it up with gas, not speed, use turn signals, and drive carefully... yeah right.. can you imagine if everything had a EULA? Why is it just software? When you buy a car you have restrictions on by state laws and fed laws and insurance, but not a eula. Most hardware does not make you sign a EULA. Why software?

    What I'd like to know is who wrote the first software EULA?

  • Um... (Score:2)

    by jmu1 ( 183541 )
    isn't that a direct fracture of the rules as set forth by the DMCA? That would, in effect, be a circumvention of copyright procections. If you don't agree to the terms of use, yet use the software, you have stolen intellectual properties that previously had (even if not tested) legal protection. I haven't noticed many people here stating that just because the GNU GPL hasn't been truly tested in court means it is invalid. I'm not saying I support any such laws, but it is the law, all the same.

  • Common sense? (Score:4, Interesting)

    by davie ( 191 ) on Wednesday May 01, 2002 @01:05PM (#3444031) Journal

    To expect someone to be bound to the terms of a contract after a sale is ridiculous. Either it is a sale or it isn't. If it's a sale, then I own it and can do with it as I see fit. If it's not a sale then calling it that is a misrepresentation. Call it a rental or a lease, because that's what it amounts to.

    If you or I sold someone a car, house or any other property then stuck a contract in the buyer's face and told them "sign it or give me back the property" we'd be a laughing stock, and no court in the world would consider the case. Why should software be any different. If Microsoft and other vendors expect end users to be bound by the terms of a contract they should be required to present the contract in advance of the purchase, period.

  • IANAL (yet), but --

    This software is no solution. Imagine the following 'solution':

    I make brown, sugary, cola-flavored carbonated beverages. I hit upon a great name for my product -- "Coca-Cola". Now, "Coca-Cola" is a trademark. It says so right on the can I'm holding.

    The obvious solution? I take out a marker and scratch out the "(R)" symbol next to the mark "Coca-Cola". I make a template that goes over the can so that other people can scratch out the "(R)" never having seen it, knowing only that it might be in their best interests to scratch it out.

    Now, is "Coca-Cola" no longer a defensible trademark? Am I allowed to call my brown sugary beverage "Coca-Cola", since I never saw the little "(R)"? Are the users of my template allowed to do so? No.

    Now, there are huge problems with EULAs anyway (no meeting of minds = no enforcable contract), but this is not the solution.
  • When you buy a book, does it come with a seal holding the pages together so you can't read it unless you agree not to set up your printing press to mass produce and sell copies of it?

    No, but somewhere inside is a copyright notice.

    That's the problem. The things EULAs *should* protect are already protected by already-existing copyright law. The fact that these *companies* try to limit you in no way makes you a criminal if you say to hell with them.

    That is, unless they keep buying legislation to get their way.

  • His VB script contains a typo... (Score:3, Interesting)

    by Thing 1 ( 178996 ) on Wednesday May 01, 2002 @01:17PM (#3444134) Journal
    Toward the bottom of his script [google.com] , there appears to be a typo.

    He has two regex sections. The first starts with "Set term1 = New RegExp" and then defines three attributes for term1.

    The second section starts with "Set term2 = New RegExp" (note term2), but then defines three attributes for term1.

    This must not have been found in testing, as the keywords in the regexes are found in just about any EULA. Still, it's worth noting. I'm not a VB programmer and I saw that immediately -- are there any other potential errors in the code?

  • Fantasize much? Take care about free legal advice (Score:3, Insightful)

    by werdna ( 39029 ) on Wednesday May 01, 2002 @01:56PM (#3444442) Journal
    Without the EULA, I am free to use my software within the bounds of copyright law.

    Which may, in fact, be not at all. Absent the EULA, you have no license. Absent a license, the bounds of the copyright act preclude any reproduction, derivation or distribution of the copy you have. Since USE of software has been treated by the courts as a reproduction (since it entails loading a copy from a fixed disk to RAM), your unlicensed execution of the program may well be violating their copyright. The virtue of the EULA is it gives you a use license. Since you bypassed the EULA, it is unlikely you would prevail on any implied license theory.

    In short, if you are serious about this as a legal strategy, please first consult with competent counsel you have engaged who has carefully studied the particular facts of your case. If you are reading this proposal, please consider the source and the possibility that the legal advice in the original posting (and this response -- which is not legal advice by the way) may be worth what you paid for it.

    • Since USE of software has been treated by the courts as a reproduction (since it entails loading a copy from a fixed disk to RAM), your unlicensed execution of the program may well be violating their copyright.

      Yes, once upon a time the courts made that ruling. Then congress passed this [cornell.edu]:

      Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner

  • Virus !, lol,,,,,,take that MS ! (Score:4, Funny)

    by CDWert ( 450988 ) on Wednesday May 01, 2002 @02:29PM (#3444750) Homepage
    Someone needs to roll this script in a VIRUS scanner. So whenever the app gets on the machine it gets scanned and flagged as a virus, with the FIX option then removing the EULA.

    MS calls the GPL liscence Viral , Hell they started calling names first, if you wrap this in a Virus scanner and get hauled into court , the judge ask "why you felt your prodect could remove the EULA" look you honor at all these press clippings calling the GPL if the GPL can be viral so can the MS EULA, and Hence I can remove it :)

  • A much easier way around it (Score:4, Funny)

    by rossz ( 67331 ) <ogre@@@geekbiker...net> on Wednesday May 01, 2002 @02:33PM (#3444790) Journal
    I have my 11 year old daughter install software. I have not given her permission to enter into a binding contract.

  • It's Called Best Effort (Score:3, Insightful)

    by tarsi210 ( 70325 ) <nathan AT nathanpralle DOT com> on Wednesday May 01, 2002 @02:38PM (#3444833) Homepage Journal
    The reasons EULAs and such things are done, from what I know (IANAL), is for a reason called "Best Effort".

    Best Effort means that if and when your company ever gets hauled into court for some stupid lawsuit, you need to be able to show that you made a "best effort" against whatever event that caused the lawsuit. If you can show that, the liklihood that you won't be held liable is higher.

    EXAMPLE: I own a house. I have a sidewalk. During the winter it gets ice on it. I go out twice a day and salt the sidewalk to prevent ice, as well as scoop the ice and snow from it. An old lady comes and slips. She sues me for poor maintenance of the sidewalk. I can present my case as a "best effort" case. I did my best to prevent the sidewalk from being slippery and therefore it is not my fault that she still slipped and fell.

    With EULAs, it's a matter of CYA (Cover Your Ass). If you didn't put one and got hauled into court because your software farked up a whole bunch of financial records, for instance, the court would say, "Look, you didn't even try to warn the user that your software might screw up, therefore you're liable." With an EULA you at least have shown that you tried to protect yourself. The EULA itself doesn't necessarily have to be enforceable; the fact that it makes an effort in a 'safe' direction is enough.

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