EULA In Games 245
kakibesar writes "AVault has kicked up an article that takes a look on that lovely little screen that you see when you typically install a game, the End-User License Agreement. Basically it details why companies use EULA in games, as well as what you're giving up when you click on the 'I Agree' button."
Offer EULA on the web. (Score:2)
Re:Forcing companies to invalidate EULAs themselve (Score:1)
Rumplestiltskin, I say! (Score:1)
reverse engineering (Score:5)
What this ignores is that reverse engineering falls within the bounds of fair use. The publishers of a game can retain ownership all they want, but reverse engineering is supported under U.S. law (and others too, I'm sure). Thus many EULAs are misrepresenting the law (at worst) or attempting to get you to agree to give up rights which you would normally have (at best).
It's too bad for software publishers that users have such rights, but it's unethical for them to attempt to strip away a user's rights or trick users in this manner.
Don't get me started on screenshots, either - if you own the copyright to a document you created with Microsoft Word, why don't you own the copyright to a screenshot of a game you created with Quake or Rainbow Six? In both cases you're starting from the default document/game provided with the software, but you add and subtract things creatively from the document/game until you have something that's truly unique. This will only become more of an issue as games become less linear and start to dynamically generate entire worlds for you to explore.
Re:EUA.... (Score:1)
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Re:You always give up a right in a contract. (Score:1)
Circumventing EULAs (Score:1)
You've gotta wonder how the lawyers would deal with this. Does figuring out how to install a program count as reverse engineering, or could you use an existing install to figure it out?
Brant
Re:EULAs of the future (Score:1)
View -> Page Source
Oops.
Re:EUA.... (Score:1)
I think that here in Sweden, at least, they can't remove any of your rights, even if you do agree on a contract. A company can't negotiate away your lawful rights as a consumer.
If I remember correctly, the consumer laws in Sweden (EU?) are more to the customers advantage than their counterparts in the US.
--
"I'm surfin the dead zone
Re:Obvious Question: Who read the EULA? (Score:1)
That's the whole intention...to get people *not* to read it.
Just take a look at financial reports of companies whose stock took a turn for the worst. You'll see a dark background on dark foreground so that you won't be likely to read it.
Re:Offer EULA on the web. (Score:2)
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Re:Returning software (Score:2)
Re:The EULA defending paper (Score:2)
So, if I owned Joe's Software House and bought one copy of CompilerMagic 2.0 for 50 seats, am I within my rights since I own all of the computers? This becomes questionable, and I would really like to see someone with the legal backing purposely cross a EULA in order that we might get some legal rulings behind us.
My firm conviction is that they are bull... as has been stated here often enough, but I don't have the pocket book (or 50 computer) to test it out in court.
(though, I would be willing to contribute to anyone who would give it a shot.)
Re:Forcing companies to invalidate EULAs themselve (Score:2)
By the same token, the people at Microsoft tech are given the job of talking with customers, and are authorized to recieve feedback from customers for bug-finding purposes, etc. If my program had a bug in it, and I was sending it to their tech people for bug-checking, are they not authorized to enter into a contract to view my code? Remember, in the event that there is no EULA, my code falls under the rules of contract outlined by copyright, where fair use, etc., comes into play.
Come on; just try and tell me that you don't think Microsoft has ever gotten a piece of code before with a huge "COPYRIGHT ID SOFTWARE; reproduction strictly prohibited without prior authorization from ID SOFTWARE" label on the top. (Or substitute your favorite software company. Lucasarts..? Borland-Inprise..? Corel, even.) This is also a contract; are they not entering into it on behalf of Microsoft when they look at the code?
(My argument is not limited to Microsoft, remember; I realize that Microsoft probably doesn't allow any external source code to make it's way into their walls. The argument's more of a theoretical one--if I thought Microsoft were this vulnerable, I'd be off sending emails right now instead of posting on Slashdot..
Ooh! (Score:3)
"Moreover, EULAs play an important role in curbing software piracy"... "EULAs inform end users that making extra copies is not permitted (except for backup purposes) and that the software publisher is serious enough about enforcing this point to provide a written notice."
Ooh, a pages-long written notice written in such meaningless legal-ese that most people couldn't understand it if they even bothered to read it! Ph33r!!!
That'll be almost as good a deterrent as writing 'Do not make illigal copies of this disk' on Microsoft Windows CDs!
If companies want to clarify thier point, they should do it in a way people can actually understand and will see and read. Example:
This program can only legally be installed on one computer.
Ten words. Make it, say, 18-point and show it in the background as files copy. This will 'inform' people.
Michael
...another comment from Michael Tandy.
The reason for harsh EULAs (Score:2)
The problem being, there is no easy legal way to distinguish between a benevolent mod and an evil one. (Sadly, the phrase, "Total dickhead move" is too ambiguous of a term to stand up in court.) This leaves id software's legal department with little choice but to say, "No mods", but only enforce it in the case of truly evil mods.
The same holds true for most of the other cases --I'm sure the makers of Rainbow Six won't mind if I post a screenshot on my little game-review web site. But if I'm the maker of "Counter Terrorist Team Seven!" and I want to start ragging on Rainbow Six's graphics on my site, they would mind.
The major problem with all of this is that it's pretty much up to the companies themselves to determine what's a total dickhead move worth enforcing and what's not, and if you read their minds incorrectly, you can get burned. [penny-arcade.com]
EULA enforcability is a fiction... (Score:5)
EULAs, like old deed stiplations from the 50s that restrict the race that owners can supposedly can sell to, are in all non-UICTA states, nothing but legal fiction.
One of the most fundimental tenets of contract law is that you must be aware of the terms of a contract before you commit to it. EULAs do not appear until after sale, and thus are entirely invalid, whether you click "I agree" or not.
Some more creative laywers have tried to get around the law by saying "If you don't agree, you can return the product for a full refund". However, even if you *could* return the product this way (which you typically can't), this would not be enforcable. You paid your money, the store gave you the product. That was the contract.
The only part of EULAs that are enforcable are terms that are generally against the law anyway - like copyright violations. But those are enforcable with or without EULAs.
90% of civil contract enforcement is based on intimidation and taking advantage of legal ignorance.
Re:EULA vs. Warranty (Score:2)
No they do so because EULAs are the norm with computer software. Effectivly they are a tradition, clung to blindly.
Somewhere there is the original EULA, most likely written to protect "mom and pop software writer" from "megacorp client".
If they didn't put stringent demands on the consumer, he'd just abuse the product.
So what? Other industries, including those which involve abstract IP such as publishing, get along fine without them.
Anyway if someone finds a novel use for a product they have bought then they are morally entitled to copyright and patent protection on their innovation.
nuclear Java (Score:2)
Best section of the article...
Personally, "java nuclear" sounds to me like a damn fine cup of coffee. ;-)
On the subject of "weapons systems", wouldn't a failure be more likely to prevent death than cause it?!
[TMB]
Re:EULA vs. Warranty (Score:2)
Or how about something like. "Ford Pinto EULA. The fuel system is the proprietrty property of the Ford Motor Company. all alterations, modifications, inspections, examiniations and reverse engineering is prohibited. No liability will be accepted for any death, injury, property damage related to the fuel system, even if Ford Motor Company is aware of any such possibility".
Re:Returning software (Score:2)
Re:Obvious Question: Who read the EULA? (Score:2)
May I ask, just out of curiosity, and as a foreigner who does not understand the U.S. legal system, why do you not read them EULA's? Is it because
1) you do not believe they have any legal way to enforce what ever conditions they put there, or
2) you do not believe they can ever prove you actually clicked that button, or
3) you do not think they will ever bother to look in your direction
Typical EULA (Score:3)
Or you'd think that was in there, by how some people act.
Re:Obvious Question: Who read the EULA? (Score:2)
Exactly. Most EULAs are written to discourage people from reading them. If Joe and Jane Average happened to actually read the EULAs on these games they bought, and saw some of the terms put in there, they might demand their money back! Or, even worse, raise a fuss about it and some government official might take notice! This is completely aside from the fact that much of the language used in EULAs cannot be reasonably expected to be fully decyphered by anything less than a team of trained lawyers. And that you cannot see them until after you've bought the product - many companies will refuse to give pre-purchase copies of their EULA to people.
Read The Software Conspiracy by Mark Minasi for some more details on EULAs. (Blatant plug, I know, but its a good book!)
-RickHunter
Re:EULA enforcability is a fiction... (Score:2)
Awesome! That means I don't have to distribute the source code to modifications I make to GPLed software when I distribute the binaries, right?
Yeah!! That's sticking it to Corporate America!
Imagine the potential (Score:2)
Re:Obvious Question: Who read the EULA? (Score:2)
<DISCLAIMER>
IAAL (I am a lawyer). But not practicing anymore. Texas Bar License "Inactive Status" (so I don't pay dues anymore). This is not legal advice. Don't rely on what I say. Get your own damn attorney. Not Board Certified Texas State Board of Legal Specialization. So there.
</DISCLAIMER>
#include "disclaim.h"
"All the best people in life seem to like LINUX." - Steve Wozniak
Re:nuclear Java (Score:2)
It depends on the type of failure. If a missile system launches when required, but not detonate, that might save lives. If a missile system launches inadvertantly, but does detonate, that might kill some people (even friendlies). If a missile system hangfires (motor ignites, rail doesn't release), its possible that the pilot doesn't die, or crash, but is required to stay away from the field for a certain amount of time (I think two hours) before being allowed to land, in case more malfunctions occur.
Re:Obvious Question: Who read the EULA? (Score:2)
Mine is generally (when doing NT installs) "Hit F8 to give your firstborn to Uncle Bill." :)
EUA.... (Score:2)
Something I've wondered about... can a company legally put something in the EUA.. like many paragraphics down, like that you would need to give them so much money or do something, and then when you click agree, have it send something back to them, say over the internet.. so they would have a record of it... would this be legally binding? And would you as the user have to legally pay them since it was in the EUA which you clicked I Accept on?
Re:I never agree - Yes you do (Score:2)
Likely you are just using BSD & GPL and similar licenses which grant usage without much more then disclaiming liability.
Quake 3 Arena EULA (Score:3)
After reading the EULA for Quake 3 I was so incensed that I drafted and mailed a statement denying my aquiescence to the contract to both Loki and to a friend who could witness that I did my best to show that I do not accept the terms stated in the EULA if it ever came to a legal proceeding.
I consider that having paid for the product, that I own it; and if someone tries to modify that ownership after it has already been alienated by including the text of a contract in the box that states among other things that I won't ever sell the product to someone else, there isn't any reason at all that I should accept that contract.
I made it completely clear in my letter that I do not accept the contract, and I urge anyone else who feels the same to send a similar message.
Interestingly, I did eventually get a mail back from Loki with some free legal advice, so I wrote back a reply reiterating my argument, stating that I did not accept their argument, and that I was willing to test our difference of opinion in court if necessary.
But I mostly did that because Q3A is the most onerous of EULAs I have ever seen. Other EULAs leave a lot to be desired, but they don't usually take away basic rights that you have in owning the copyrighted material and grant you nothing in return.
(Loki tried to argue that by using the product I had to agree to the license. But use of a product is not a protected copy right, so I disagree with their argument; I am fully within my rights to use a copyrighted work, whether I've agreed to a contract or not. IMHO, of course. IANAL.)
EULAs of the future (Score:2)
You may not make illegal copies of this comment. Illegality of copies is determined by the laws of Estonia-on-Avon, a small principality covering approximately one half acre somewhere in West Tenessee. A copy of these laws may be obtained by visiting Estonia-on-Avon, and asking Prince Bob to write down a copy for you. Punishment for illegal copies will also be left up to Prince Bob.
You may not reverse engineer this comment to attempt to discover the source code of this comment for use in your own products. If you wish to make modifications of this product, please contact us for further info. Infractions of this clause will lead to visit by a large man named Guido at late hours of the night.
Re:Returning software (Score:2)
All the install routine does is put files into place and make configuration changes. These can be done manually.
Derek Smart? (Score:2)
Re:I'm 16. Does EULA legally bind on me? (Score:2)
My EULA (Score:2)
Rev. Bob "Bob" Crispen
The rest of the world (Score:2)
1) Do click-through licences have any legal standing in your country?
2) What possibilities does a user have - in your country - if the product requires him to accept an EULA that he can not accept? Can he return the produce, and get his money back?
3) What if someone uses a program without accepting the EULA, for example by unpacking the installation files manually? Where does he stand?
4) Generally, what are the default rights of a consumer who has purchased a piece of software. Especially if there is no license agreement? Any sort of "fair use" allowed for anyone? Can these be limited by an EULA, or even by a signed agreement?
5) Does it make difference to any of these points if the producer of the software happens to be located in another country, or if the agreement happens to be worded in a language the user may or may not understand?
Inaccuracy in article (Score:2)
"Have you ever paid to play Half-Life in a cyber-cafe? Can't do that."
This is slightly inaccurate. I run a LAN game room (dumb name) in Madison, WI (www.ping-time.com [ping-time.com]), and in order to get Half-Life, we had to license it from Havas Interactive. Many games have such options to license them, and I know that Blizzard does. However, I doubt many "cyber-cafes" do license the games, because in some cases it is prohibitavly expensive. David Turner
EULA and Minors (Score:2)
Re:EULA enforcability is a fiction... (Score:2)
One of the most fundimental tenets of contract law is that you must be aware of the terms of a contract before you commit to it. EULAs do not appear until after sale, and thus are entirely invalid, whether you click "I agree" or not.
While this is true, another fundamental tenet of contract law is that the expectation of the parties involved is also a consideration. If I have seen a (for example) Microsoft EULA before, and know that Microsoft always places these licensing restrictions on their software, I can't argue a lack of consent on subsequent software purchases.
The typical example of this is the warning printed on the back of a parking slip at an underground garage. It generally says the owners are not responsible for theft and damage etc. Since everybody knows this clause exists (unless you've never used a garage before...) they don't need to bring it to your attention before you pay your $5 for parking.
Of course, IANAL (but I'm getting a second-hand legal education through my wife...)
Re:reverse engineering (Score:2)
I'm also not a lawyer, but it seems that the best you could get would be a nullification of terms that don't have protection outside the contract. It seems copyright laws and similar regulations would still protect your from, say, putting a copy of the program up on a website. However, it's quite possible that reverse-engineering the product would become legal. Or at least it would except for potential DMCA issues.
Re:Obvious Question: Who read the EULA? (Score:2)
EULAs violate many of the basic contract principles (they aren't voluntary because the company is withholding something you paid for until you sign an unrelated contract, they don't offer you anything because you already paid to use the software, etc.) The only way an EULA could be binding is with some UCITA-type law, and 'they' passed that precisely because 'they' knew that EULAs aren't at all enforceable.
Technically, an EULA just can't be forced upon you for the purchase of software you already bought. If you like the EULA you can take the company up on its offer (like you did) and it will be binding, because you're waiving some of your rights.
But you can click-through without fear, if the only way to get around the contract to use the product you legally purchased is by clicking 'I Agree' then that button has no more legal significance than 'Next'.
A company could make an EULA binding, IF they didn't make it mandatory, and offered something you didn't already own (an extended service contract perhaps). Or, in the case of shareware where you didn't buy the product before seeing the EULA.
But a hidden contract (in the box, can't be read till it's purchased and taken home) isn't binding.
Re:Returning software (Score:3)
Re:Returning software (Score:2)
But once you buy a product (or a license to use, if you choose to see if their way) you *own* that product/license. There may be rights attached to it that you don't own (copyright, etc) but you have all rights necessary to use it in the manner for which is was advertised when you bought it.
If I sell you a software product you have the right to make the copies inherent in using it (on ram, the installed copy, etc) because you couldn't use it otherwise and I sold it to you as a working product...
Anyways, if you buy a product you have the right to use it. The EULA usually offers you the right to use the product for agreeing to the 'contract'. This isn't binding because you already own that right, they're offering you something of no value. Then, they're attempting to withhold your right to use the software because the 'I DISagree' button cancels the install. This is coercion, they're forcing you to do something in order to exercise your rights. It'd be like me threatening to take your car unless you bought my tires.
There are other problems with the EULA, but those are the main ones.
Just ignore them, unless they're in your best interest (like Windows Refund Day). They aren't binding on you, but they are binding on the company that issued them. (They can't have offered a contract they knew was invalid, can they?
Re:Returning software (Score:2)
They can't take away your right to use the software you purchased, so by putting in a contract you must 'agree' to in order to use that product renders the contract void.
To get around that they'd have to have 'I Agree', 'Cancel', and 'I Disagree, Install Anyway' buttons. Because they don't, you're free to install that software even if it means clicking 'I Agree'.
Re:Changing the EULAs on Windows software (Score:2)
Re:Returning software (Score:2)
If they want it to be binding they need to ask people to agree to the contract *before* they get the device, and they can't give them away unsolicited.
EULA and copying (Score:2)
"Moreover, EULAs play an important role in curbing software piracy...EULAs inform end users that making extra copies is not permitted (except for backup purposes)..."
The article seems to be saying that any sort of copying, other than for backup, is illegal. This is not true. I can copy the software onto another PC so long as they are not in simultaneous use. I can also copy to a more convenient media (moving to a DVD or ZIP or HD instead of a CD-ROM). The article also doesn't mention those cases of companies adding copy protection schemes and not allowing copying at all, even if their EULA does not dissallow it.
Who Reads EULA? According to Nielsen, few. (Score:2)
Jakob Nielsen wrote an article in September 2000 discussing 'regulatory usability', about the need for increased comprehendability (my word) in the plethora of legal nonsense we have to wade through.
He particularly mentions EULA and disclaimers at the end of the article, stating:
I will be very interested how an EULA holds up in court when (not if) the day comes. Full article here [useit.com]...
Re:Returning software (Score:3)
Can you blame them? If you were Microsoft, would you want your software?
Re:EUA.... (Score:3)
The law has thrown away common sense when it comes to information. In every other type of contract or agreement in the world you need either a) a face-to-face handshake or verbal assent, or b) a signature. Only in the software world do you get licenses that say "by using this software you agree to...".
If a company wishes to provide a level of permission to the user equal to or greater than what copyright provides, then a click-through or shrink wrap license is fine. But if they desire to remove any rights that you already possess, then they need to get your explicit consent.
Sure, getting signatures and stuff is going to crimp the style of software manufacturers. But so what? The industry practice of unilaterally imposing private law (a contract) on me crimps my style as well! If I purchase a box from a third party retailer, I expect full legal rights to use the contents in any lawful manner.
Imagine the following license inscribed on the barrel of a number two pencil: "By using this writing instrument, you agree not to let any other party use the instrument, nor disassemble the pencil for any manner; this pencil may only be used in conjunction with approved writing surfaces; you must surrender the pencil upon demand."
EULAs and the UK Sale of Goods Act (Score:2)
For example, the goods must be of `Fit for their purpose'. This means that if you're lead to believe that a product can do something, and it can't, then the retailer is obliged to refund your money. I would imagine that, for example, the packaging for System Shock 2 implies that you will find out what's going on on the ship. Not without downloading the patch you won't! Are the goods fit for their purpose? (This isn't to slag of SS2 - it was just the first example I thought of.)
Another example, the goods must be of `merchantable quality'. What this means is left vague and for the (usually small claims) court to decide. A yogurt containing rotting fruit is clearly not of merchantable quality, but I guess the question `Is Win9x of merchantable quality' would occupy the finest Slashdot minds for days...)
Notice that the Sale of Goods Act applies only between the consumer and the retailer. *NOT* the manufacturer. As I understand it, any contract exists between the retailer and the consumer, not the manufacturer and consumer. Moreover, retailers can't get around the Sale of Goods act by introducing their own terms (although there are some minor cop-outs, for example, you can't complain about a fault if it was made aware to you at the time of purchase. (Although, I can't see Dixons or Comet reading out BugTrak to everyone who wants to buy the upgrade to WinME...))
I should add that IANAL. Also, for examples of fun things to do with the S of G act, see uk.legal.
-- C.
Maybe not (Score:2)
Or he is using BSD & GPL software without taking advantage of the additional rights (e.g. redistribution) that he would have if he agreed to the license.
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Re:Returning software (Score:2)
Re:Offer EULA on the web. (Score:2)
Re:Returning software (Score:2)
How to work around EULAs (Score:2)
--
EFF Member #11254
Re:reverse engineering (Score:3)
No, that's not right.
What you're ignoring is that agreeing to the contract supercedes your legal right to reverse engineer. To make this more plain; take a standard NDA for an example. You are (typically) allowed, under the first amendment (for the USians here) to tell others about your experiences, etc. If you sign an NDA when hiring into a company, you're agreeing *NOT* to speak about certain things, under threat of legal penalties.
What I do disagree with is the fact that you can't really help but agree with the contract. If you read the EULA and actually agree, that's just fine. What recourse do you have if you disagree? MS has already refused to honor their own EULA by offering a refund if you disagree (and their new EULAs say to go to the vendor only, not MS). Most vendors won't return your money. This is the real problem with the EULA. A EULA, in concept, isn't a bad thing. A EULA, in practice, should be illegal as hell.
Re:EULA enforcability is a fiction... (Score:3)
In response to "EULA...are...nothing but legal fiction", Chester K replied "Awesome! That means I don't have to distribute the source code to modifications I make to GPLed software when I distribute the binaries, right?"
Umm, no. Actually, you don't need to agree to the GPL. If you don't, you are bound by standard copyright laws. You can use the software, rewrite it, and generally do what you will with it, but you many not redistribute copies. You only need to agree to the GPL is you want to gain additional rights normally withheld by copyright law. This is why the GPL is traditionally distributed in a file called COPYING. In fact, this is why the GPL is clearly legal, it doesn't take away rights in exchange for nothing (like most EULAs). It actually gives you additional rights, it takes none away. Without the GPL you can't distribute modified software at all, with or without the source.
You don't need to agree to the GPL (and GPL software that makes you agree in the installer isn't really doing it right... but that's a different story.)
If software manufacters want to give end users additional rights if they agree to a EULA, that would be a different story.
Re:Returning software (Score:2)
The case in point here is that if you are aware of the EULA and read it appropriately, finding that you can't agree to those terms, what recourse do you have? Can you return it? Can you continue to use it?
Re:EULA enforcability is a fiction... (Score:2)
Actually, wrong.
Copyleft isn't an EULA. Rather, the terms of distribution (which is all that Copyleft covers) is the consideration you are providing - you're not paying for it after all. Further, since you must look at the code before you can use it in ways the Copyleft prohibits, you are free to reject the terms as you see fit.
You certainly would have an argument if the Copyleft contained restrictions on simple terms of Use, since you might not be exposed to those terms before you used it. But it is flat out impossible for you to modify any software covered by the GNU public license without being made aware of the restrictions on distributing modified versions.
That, by the way, is why the GNU public license is ever so redundantly repeated over each and every file it covers. That way, no one can say "I modified this file, but there was nothing in it that said I couldn't keep the modification to myself when I distributed the binary".
Re:Returning software (Score:4)
EULA return policy: The place where you bought it, or us for full refund.
So, I wrote an e-mail...and got no response. Called, and was told there was no way to return the software. Asked for names, then asked to speak to a supervisor.
Said supervisor said they would call back. VP called back in 2 hours, said "no". Asked him to place that in writing, and mail that "no" to me.
3 days later, VP called back and gave me the address to send the software back to.
Sending back software is a good idea, but it takes alot of time and effort to obtain the end goal. And some (Microsoft) won't take its software back.
Games are kind of a weird case... (Score:2)
The thing that got me was the quote from Microsoft about why EULA are neccessary. It basically stated that EULA exist because publishers would have to charge more, because of those that would exploit reverse engineering. According to that then, I can readily buy (for an added price) versions of software that allow me to reverse engineer them. Seems quite obvious lawyers don't live in our reality.
Cheers,
leroy.
The EULA defending paper (Score:5)
The paper defending EULAs [2bguide.com] that he links to and quotes is more interesting than the article itself. The part where they explain (*cough*) why copyright laws are insufficient is particularly riddled with bias and newspeak.
Oh, that is just so lovely and thoughtful. Those rights granted under copyright law are so obscure and full of legalese; people need a nice simple and easy-to-understand EULA. Take people's rights away from them, so that they will have a better understanding of what rights they have left! I like how they use the word "teach" where they mean "bluff". Copyright law prevents unauthorized redistribution. Copying something onto many computers that you own, is not redistribution. You're still the only one who has it. EULAs do not "inform" the user that they have fewer rights than would otherwise be granted under law; they stipulate it. EULAs cause those rights to be lost (if the user agrees).I could go on and on picking at this piece of crap, but I think I'll save my bile for another time and enjoy the rest of the day.
Oh, and in addition to bullshit, there's one interesting passage that brings a sincere grin to my face:
Take heed, MPAA! I happen to agree that sufficiently unconscionable terms, when exposed to enough light, have the potential to influence the perceived value of a product. It is interesting that DVD movies come with so many restrictions and downright secret terms (such as the conditions for authorization to circumvent, as required by DMCA) that are not mentioned on any EULA that comes with them. One could speculate that the purpose of DMCA was to make it so that MPAA didn't have to include nasty-looking EULAs with their product, which would scare away consumers. Cockroaches love the dark.---
Is this even relevant? (Score:2)
Sure some company could get heavy handed with some poor user, but I bet the out pouring of bad publisity would cool any action fast. Case in point: Censorware.
Frankly the whole software industry needs to have an attack of common sense, which regrettably is lacking.
Re:EULA vs. Warranty (Score:3)
Is it really? Let's look at the three statements that the article identifies as being most common in an EULA.
1) "First, there is always an assertion of the company's copyright and ultimate ownership of the intellectual property represented by, and associated with the game"
Is this really necessary? Either the company owns the code or it doesn't. What the end user happens to think about the matter is of no effect. If someone steals my car, will I not be able to press charges unless I had previously made the thief agree that the car was mine? Proof of ownership is not a matter for EULAs, but for property law, unless you think I should put a sign on the car door saying "By touching this car, you agree that...."
2) "Second, there is always a promise that the game (or its associated documentation) will not be copied or shared" Again, this is not a matter for EULAs, but rather for copyright law. I am not prevented from photocopying a book or the work of a professional photographer by an EULA or even a copyright symbol, but rather by copyright law.
3) "The third promise every game obtains from the user is that they will not try to reverse engineer or modify the product in any way using the program they've received." This is a more debatable matter, and one I'm not going to get into in this post, except to bring up the "car with the hood welded shut" example and to note that while such provisions are of course beneficial to the software company, they have questionable value to society as a whole.
Why is it that the software market enjoys this unique priviledge of a prohibition on reverse engineering? (Yes, I know that computer make it a little easier, but that is beside the point.) I understand that software developers don't want people ripping off their ideas, but is this really good for society? What if, for example, Gillette had sued Shick for ripping off the idea of the disposable razor and thereby locked up the disposable razor market? "Your honor, we submit that it would have been impossible for Schick to develop a disposable razor without reverse-engineering ours. We even have evidence that a janitor at Schick corporation once saw a Gillette razor!"
Instead, Gillette has to rely on making better and better razors, which I would argue is good for the consumer and society as a whole. (Just think of all the extra trees we'd have to cut down to make toilet paper to dab up the blood from the nicks and cuts from straight razors.)
Anyway, this is all a tangent (it looks like I "got into it" anyway), and I suddenly feel the need to shave.
Re:Obvious Question: Who read the EULA? (Score:2)
"Here is where you sign your life away, just scroll down and click "I accept""
Obvious Question: Who read the EULA? (Score:5)
My Email to the Author (Score:4)
The following is an email I sent to Bruce Rolston, the author of the article.
______________________________________________
Shrinkwrap license "agreements" are a hot-button issue for me, so I was disappointed when I read your article, "Look Before You Click" (linked to by Slashdot).
I wrote an editorial putting the case against such "agreements" over four years ago, which was published in MicroTimes. The text is on my Web site:
http://www.best.com/~ewhac/belarfnq/shrinkwrap.htm l [best.com]
I have two primary objections to license "agreements" as currently practiced.
First are the terms of the "agreements" themselves. Those which are not a redundant statement of existing law I find to be completely without any ethical foundation whatsoever. In particular, I most strenuously object to anti-reverse-engineering clauses. Indeed, you make reference to these clauses in your article:
That's correct. I argue that it should be impossible to prevent people taking apart their software, at least within the scope of mass-market software that is sold over-the-counter.
The software industry spends billions every year on research and development. But as large as this sum is, billions more are invested by auto manufacturers in the development of new cars. When finally released for sale, auto manufacturers routinely purchase the products of their competitors, take them apart bolt by bolt, and figure out how they were designed and built. And they use the knowledge gained from this to improve their own products.
The auto industry doesn't have a problem with this practice. I therefore fail to see why the software industry has any business objecting to the very same practice.
You also cite the writings of Microsoft's legal department:
Frankly, I'm surprised that you re-printed this; it is devoid of logic, or even common sense.
There is no logical path between taking apart your software and software prices rising, any more than there is a path between opening the hood of your car and car prices rising. Indeed, the argument can be made that allowing people to take apart their software will drive prices lower, since people will more readily be able to analyze and identify jewels from junk, thereby lowering the price of junk (#include <gratuitous_microsoft_bash.h>).
Furthermore, the fact that most people have no interest in opening the hood of their software -- or their car -- in no way justifies obstructing people who do. Humans are naturally curious; they are going to take stuff apart and figure out how it works. It is an unalterable fact of the marketplace. Tune your business model accordingly.
My second primary objection to EULAs is the mechanism by which these so-called "contracts" are put in force. In short, any vendor anywhere can place any restriction on you they wish, without reasonable prior notice, and bind you to it using the most tenuous forms of assent.
Frankly, I should not have to take a contract attorney with me every time I go shopping at Fry's. The mechanism used by these "agreements" is fundamentally unethical, and wide open to egregious abuse:
If shrinkwrap "agreements" are enforceable, then what is to prevent retail sales of any item being replaced by "licenses?" Consider what would happen if Sears started selling their hammers only under "license:"
You see two hammers on the wall. One is the Craftsman Personal Hammer; the other is the Enterprise Edition Hammer. The Personal Hammer comes with a "license" forbidding you from using the hammer to build objects intended for sale, or Sears will sue you. The Enterprise Hammer "license" allows you to build object for sale, provided you kick back to Sears 1% of the gross sale price. The Personal Hammer costs $30.00; the Enterprise Edition Hammer costs $500.00. As far as the hammers themselves are concerned, in all material respects, they are identical.
Would you tolerate this? Would you take Sears' "contracts" seriously, especially if there were no record of you actually signing it? What if your minor child bought you the hammer as a gift? Whom does the "contract" bind?
"Well," I hear you say, "I'll just buy one from Home Depot." Surprise, surprise, they just changed all their hammers over to the same scheme last week. Further investigation reveals that you can no longer buy a hammer any more; you can only "license" them.
Relying on the doctrine of unconscionability is also a non-starter. Litigating a contract dispute is ruinously expensive, even if you're in the right.
The idea is worse than ridiculous, it is dangerous. The opportunity for abusing consumers is monumental. It is in fact already happening. DVD CCA is suing Jon Johansen (a foreign national) for his work on DeCSS, the DVD descrambling code; the suit is predicated on Johansen's alleged violation of Xing Software's "license" forbidding reverse-engineering. Mattel managed to arm-twist an out-of-court settlement out of Eddy L. O. Jansson and Matthew Skala for developing and publishing a program that decrypts the blocklist of CyberPatrol, a censorware package; the attendant "license" forbids reverse-engineering.
This method of forming contracts is grossly unethical, and should not be allowed to stand. It is for this reason that I do not, and have never, taken license "agreements" seriously.
There are many other points in the article I could raise, but this is already too long. At the very least, I hope, in part two of your article, you will give time to the opposing viewpoint. My sincerent thanks for your time.
Schwab
Site licensing (Score:2)
Fact of the matter is, not everyone has their own network at home. Such businesses are where younger (read: poorer) people can congregate. It's more about the comraderie than anything else.
I'm currently reading through the EULA of Diablo II right now, and I'm not finding any provisions for obtaining a site license for the program. Hell, I'm not even finding any site licensing info anywhere on the Web!
I would consider the EULA unenforcable. Sorry.
Solomon Kevin Chang
Re:I'm 16. Does EULA legally bind on me? (Score:2)
If you ask someone to do something for you, you're liable for their actions in doing so. If you ask me to steal you a car, you're guilty, though not of theft, instead it's conspiracy to commit, or some other 'supporting' crime.
Re:Obvious Question: Who read the EULA? (Score:3)
I am a lawyer, and I have written EULAs for major software releases (no games, though). Do I read EULAs? No. Every now and then I get curious and take a peek, but really, why would I want to spend my free time reading this stuff?
-Steve
EQ.... (Score:2)
Re:How About A User's EULA? (Score:2)
I tried to do something along these lines by creating a license [best.com] that would forbid people from sending me spam. I was informed by an experienced attorney that what I drafted wouldn't stand up, since there was no "consideration" involved. Frankly, I couldn't see how offering the right to send me mail was qualitatively different from offering the right to use a piece of software I'd just purchased. Since IANAL, I dropped the subject.
If nothing else, writing it was cathartic...
Schwab
Re:Obvious Question: Who read the EULA? (Score:3)
Do you read all the way through contracts before signing them? Loan paperwork? Insurance policies? Rental agreements? Of course you do - you need to know what you're agreeing to when you sign.
So why is an EULA any different?
I read all the way through the EULA the last time I bought an off-the-shelf PC. And y'know what it said? Right at the top of the page - "This EULA is a legally binding agreement between you, the Manufacturer, and Microsoft Corporation." And a few paragraphs later - "If you do not agree to the terms and conditions of this EULA, then Manufacturer and Microsoft Corporation do not wish to license the software product to you. In such event, you should not use or copy the software product, and should promptly contact Manufacturer for instructions on return of the unused software product for a refund."
So I did. Kept the PC, returned the OS. Got a refund check.
THAT is one reason why you should read your EULAs.
We, as end-users, have few enough rights in the EULAs as it is - by not reading your EULAs, you prevent yourself from knowing, and therefore exercising, the few rights you have left.
Funny Site Regarding EULA's (Score:2)
Here's the link: http://www.gamespy.com/dailyvictim/index.asp?id=63
Re:well why don't you... (Score:3)
Obvious response...
I would like to see someone install M$ Office with the installer and have it work.
Re:nuclear Java (Score:2)
C++'s exception handling model essentially came from Ada.
Re:Obvious Question: Who read the EULA? (Score:2)
Someone said in a previous post that they shouldn't be able to enforce it if you can't disagree w/the terms.. I am sure that is true, if you really wanted to take it to court, you would probably win your $50 back.
I really think that they have that there as a legality and not so much for the common user but for someone that really feels the need to PIRATE the program and make 1000's of bootleg copies...
Then again, what do I know?
Re:Returning software (Score:2)
Don't agree to the EULA, but keep and use the software anyway. Use it in accordance with rights and restrictions stipulated by copyright law.
Note that you may have fewer rights than if you had agreed to the license (e.g. if you reject GPL, then you may not redistribute the GPLed program) but somehow I don't think that situation is going to be likely in cases where you don't like the EULA.
---
Another interpretation (Score:2)
"Sierra... and/or Sierra's licensors shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies (including injunctive relief to prohibit a breach of this License Agreement) with respect to threatened or actual breaches of this License Agreement."
So, let's say I call up Sierra's legal department to clarify what constitutes infringement. The hypothetical call:
And then I get a letter saying that my stating "I have a burner and know how to use it" constitutes a threat to breach the EULA? Remember: "without [...] proof of damages"But, wait: if there's a "rat out your friends" clause as well... If a buddy (who also has the game) tells you about someone they know (who also has the game) who has a friend (who also has the game) who has been considering putting up a screenshot of a game on his website, you are violating your own EULA if you don't immediately write to the developers and warn them.
my head hurts
Re:Good luck... (Score:4)
And, back when I worked at EB on the weekends, I saw a few people return games based on the EULA. Including most copies of Microsoft's MMORPG, Asheron's Call. From what I understand, it has a very restrictive EULA regarding ownership of characters and such.
Re:Obvious Question: Who read the EULA? (Score:4)
NEVER WRITE WHOLE PARAGRAPHS IN ALL CAPS. I WILL NOT READ IT. I DON'T CARE HOW IMPORTANT IT IS, LEARN TO USE BOLD OR DIFFERENT FONT SIZES. ALL CAPS PARAGRAPHS ARE EXTREMELY RUDE.
well why don't you... (Score:3)
Re:Offer EULA on the web. (Score:2)
But then they could change it after you had accepted..
Perhaps if they require you to print it out.
How many different EULAs have we seen, for what is essentially the same product.
How many companies have distributed software with a higher build id, where the software was the same intrinsicaly, but the EULA had changed?
What about EB and WS? (Score:2)
--
How About A User's EULA? (Score:5)
Would go a bit like this:
"...With my purchase of (insert vendor name here)'s software, the vendor agrees and acknowledges that
-I will be installing said software on all CPUs that I own.
-I will be making as many backup copies as I deem necessary.
-I have the right to create,own,and patent new works with vendor's software (e.g. screen shots, peotry, documents, art, methods of computing, etc.).
-I will allow friends and family to use vendor's software as long as the computer it is installed on is owned by me.
-The vendor must protect my privacy (protect my registration information, may not sell my registration information to anyone)
-the vendor must provide me with reasonable software support and maintenance,
-the software soure code is held in third-party escrow and will be provided to me should the vendor go belly-up.
-etc, etc,etc...
It never rains in Seattle... -Mike
EULA vs. Warranty (Score:5)
To the law, clicking "I agree" is different than buying a toaster, even if you wait to flip through the warranty papers back in your easy chair at home: you've still bought that toaster. (The difference has been that most appliance stores would take your toaster back if it turned out you disliked the warranty for some reason: computer retailers have often been less understanding.)
The other (real) difference is that the warranty on the toaster amounts to saying "If you do certain things, we don't have to replace this toaster", whereas a toaster with an EULA might say "You may not allow your friends to make toast with this toaster. You may not toast anything but white bread in this toaster. Once you plug this toaster into one outlet, you may not move it to another outlet. By opening the box to this toaster, you agree that if this toaster explodes and burns down your house, we are not liable, even if we knew about the exploding-toaster bug. This toaster and any toast you make with it remain the property of Hyper-mega-toaser-co, Inc."
The typical EULA is nothing like the typical Warranty. The former attempts to retrict the ways in which you may use a product, while the latter just says that if you do stupid things with the product, the company is not liable for any damage you might cause.
Re:EUA.... (Score:2)
Re:Returning software (Score:2)
Copyright law is what you are bound by then.
P.S. This is not legal advice - see a real lawyer for that.
Re:What about EB and WS? (Score:2)
You are giving up any rights to the software whatsoever if you give it back. I bet it's covered in the eula.
The Russian View (Score:2)
Besides, software companies are obliged to pass a written warrantee to users. However it is hard to understand where an EULA can be considered as such or not. In fact some EULAs are so EULAs that people forget some necessary juridical terms such as "warrants you...". Meanwhile they are quite strightforward on what you shouldn't do. And it is curious that such pretty guys like MS violate in all terms the Russian Law. Specially on something like reverse enginnering. I have the right to do it as far as I don't make holes on M$'s pockets. And specially on cases when I try to add something to software and the only way is to reverse engineer their stuff. However the EULA FORBIDS reverse engineer and looks quite scary on such stuff...
EULA's? End-User Low Acceptance. End Using Lamer's Applications.
Forcing companies to invalidate EULAs themselves (Score:2)
The project would proceed as follows; I would send off two emails to Microsoft, to the actual email address of a known Microsoft employee. The emails would be HTML, which would facilitate the following.
The second email would contain the source code for a short application I had written. The program would be my own work, copyright and all, written for a non-specific target platform. (But it would be written under Linux.) The application source would include several markers indicating who I am, what the program does at every point in it's execution, and a thank you message.
At the bottom of the HTML code, there would be a small image that would load from my website, which would increment a counter and provide exact information on what the IP address of the access was, and the time it was accessed.
The subject of the second email would be "Code which causes a new bug in the compiler."
The first email I would send would then be the EULA for the program. In it, I would specify the usual disclaimers about the program, the general limitations on use (showing it to other persons, etc.) and the usual "fill up space" legalese that's required for such contracts. Then, at the very end of the contract, just before whatever, I'd insert a paragraph stating some rather painful concessions that Microsoft would have to make to me. (..in the form of a yearly licencing fee for said software, regardless of use, and the freedom to copy and resell Microsoft
Lastly, I'd title the first email something like "Questions about EULA? PLEASE READ!"
Typically, the way this would work would be that as soon as the cookie-image did it's business, I would then have my lawyer send off a registered letter to Microsoft, containing the emails and the resulting logs, and asking for the initial cheque of my yearly royalty.
Anyone have any comments on the legality of such a scheme?
Re:Hmm. Neat tax hack? (Score:2)
But if I'm renting the licence, why did I have to pay sales tax on it? Wouldn't that imply a purchase of some sort?
Re:EULA vs. Warranty (Score:2)
I guess in your analogy I want to own the ride (so I can ride over and over again, or move the ride around (space shift it)), yet I don't really need to buy all the blueprints and technology that has gone into building the ride.
Re:Obvious Question: Who read the EULA? (Score:2)
-----------------
1. GRANT OF LICENSE. The SOFTWARE PRODUCT is licensed as follows:
Installation and Use. Microsoft grants you the right to install and use copies of the SOFTWARE PRODUCT on your computers running validly licensed copies of the operating system for which the SOFTWARE PRODUCT was designed (e.g., Windows(r) 95; Windows NT(r), Windows 3.x, Macintosh, etc.).
-----------------
Does anyone else know if this clause is present in any other Microsoft products? If it is it makes running apps like this on top of emulation layers like Wine illegal. It also makes people with illegal copies of their OS unable to use IE 5.0. So what do you do if you are running the MacOS on a machine you are not supposed to like an old IBM PreP Box?
Re:EULAs and the UK Sale of Goods Act (Score:2)
The license allows you to access the software without any obvious faults
It always makes the software run (The only exception I can see is if the vendor said "Microsoft Word allows you to create databases" in which case the license could be considered at fault because the vendor should have sold you a license for Access instead of Word.)
Again, it makes the software work, unless the box contains the wrong CD or the license key is incorrect or damaged.
Anyway, I think you can see what I'm getting at. Of course IANAL either, but I guess there needs to be a test case to see how the sale of licenses applies to the Sale of Goods act.
Re:reverse engineering (Score:3)
Actually, EULAs have been upheld legally in the US and at least 2 European countries that I'm aware of, so in point of fact, it is a legally binding agreement.
Aside from that, a EULA is hardly the only place you'll find "post-purchase terms" being thrust on the customer. I'm sure you're using an ISP, and you'll find that one of the terms in your TOS is that any and all terms in the TOS are subject to change at any time. If they change, you're faced with the choice of discontinuing your use or agreeing with the changes...all of this AFTER YOU BOUGHT THE SERVICE!!!!
The EULA is not significantly different, save for the fact that it's easy to stop paying for your ISP and not TOO difficult (in my experience) to get that last month's payment back. It's much harder to get your money back as a result of disliking the terms of a EULA.
Here's something I want to know...legally, doesn't it make sense that if I read a EULA, disagree, try to return it and am unable to that the EULA is null and void? I mean, if the writer of the 'contract' doesn't honor the contract, do I have to? Can I just work my way down the EULA, point by point, and break each term with impunity because they nullified their own contract? I dunno, IANAL, but it sounds damn nice to me.
Returning software (Score:5)
I know that Future Shop [futureshop.ca] will refuse to take back the product. And we know that Microsoft [microsoft.com] normally won't either. So what can I do?
Can an EULA possibly be enforcable if it is impossible for me to reject it? Is it up to the retailer to ensure that I am able to reject it? Or is it up to the manufacturer to refund my money if I will not accept the license? Anyone know?