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Will the FTC Target EULAs Next? 116

Posted by Soulskill
from the by-reading-this-you-consent-to-being-my-slave dept.
A few weeks ago, we discussed news that the Federal Trade Commission was planning to look into DRM and the way its characteristics are communicated to customers. Now, Joystiq's Law of the Game column speculates that EULAs could be on the FTC's list to review as well. "I would be willing to guess that within the next few years, the often maligned End User License Agreement ('EULA') may fall into the realm of being regulated as further 'consumer protection.' Is it necessary? ... The first and most common method [of consumer protection] is what is known as a 'plain language requirement.' The idea is that contracts written by lawyers are full of legal terms and are written in such a way that it takes a lawyer to decipher the actual meaning of all of the clauses. ... on the complete opposite end of the spectrum, it could be required that companies abandon EULA contracts all together in favor of a collection of FTC approved bullet points. The development and legal communities would, I assume, vehemently oppose this idea, but it is possible. Basically, the FTC would come up with a list of things all EULAs include, then a list of optional provisions that the licensor (the game company) could include."
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Will the FTC Target EULAs Next?

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  • by dotancohen (1015143) on Monday February 02, 2009 @04:36AM (#26691709) Homepage

    I would be willing to guess that within the next few years, the often maligned End User License Agreement ('EULA') may fall into the realm of being regulated as further 'consumer protection.

    It won't because it was never meant to be 'consumer protection' and that is quite a perversion of the EULA's real purpose [what-is-what.com]: 'corporate protection'.

    • Re: (Score:3, Insightful)

      by arogier (1250960)
      What would mandates inclusions to an EULA do to the GPL or BSD licenses. If some sort of admission of some level of liability for defects in the product are mandate, would free software projects at least on the face have to be handled officially at least as private betas? I could see some big corporate money contributing to legislation on EULAs for "consumer protection."
      • by sumdumass (711423) on Monday February 02, 2009 @05:30AM (#26691947) Journal

        There is never a EULA on a virus or trojan. The government just wouldn't have the ability to enforce one nor would it have the ability to make you accept one. There would be no EULA on spyware cops install onto suspects computers, there would be no EULA requirements on software obtained outside the US even though the User is sitting inside the US. In other words, requiring a ELUA in every instance is impossible and would present an unnecessary burden on US software sales.

        Now that being said, the situation is probably going to be a If you do X, you are bound by these rules. If there is no EULA in the first place, one probably will not be needed and straight copyright/Patent law will govern. The original EULAs were only statements that you didn't buy the copyrights to the software just the right to use your copy within the bounds of copyright law.

        What has happened is that EULAs have included terms that can allow a software manufacture disable competitors programs, stop you from having your fair use rights like the right of first sale or in some cases, they even deny you the right to talk negatively about the programs or it's performance. There are lots more weird and somewhat evil things and I suspect they are attempting to reign this under control as well as stop companies from advertising this product does this the best and then claim it isn't able to do it in the license to escape damages when it screws up. Well, you know, the shit the article talked about.

        I doubt it will have any real effect on GPL or BSD programs.

        • by arogier (1250960)
          Wasn't there a piece on Slashdot last year about a malware author including an EULA...
        • Re: (Score:2, Interesting)

          by Anonymous Coward

          "What has happened is that EULAs have included terms that can allow a software manufacture disable competitors programs, stop you from having..."

          No.

          What has happened is that EULAs have included terms that attempt, by sheer audacious force of entitlement, to unilaterally excuse... a software manufacture ...

          It's like a mugger declaring "I assert the right to stab you in the stomach unless you pay me" before setting about a victim with a knife, believing that grants some kind of legal protection.

          How did we eve

          • by sumdumass (711423)

            Wow, way to inject rhetorical ideologist bullshit into a conversation about EULAs. You have convinced me to hate them all like they are evil or something.

            It's like a mugger declaring "I assert the right to stab you in the stomach unless you pay me" before setting about a victim with a knife, believing that grants some kind of legal protection.

            Grow up. For the most part, the EULAs only attempt to distinguish that you have the right of use and not the rights availible as the copyright or patent holder. They

        • by the_rtb (1157609)

          There is never a EULA on a virus or trojan.

          Now there's an idea.

        • Well, the problem isn't so much that there are enforcement of EULA, but rather, a problem of EULA should include certain "software bundle" that is hidden in the long list of terms and conditions. Take for example, when you install some games you agree to install certain anti-cheating software. Now there isn't so much of a problem when the game is running this anti-cheating software will be active. However, many anti cheating software load themselves into memory and refuse to terminate when the game ends. We

      • Re: (Score:3, Informative)

        by iYk6 (1425255)

        What would mandates inclusions to an EULA do to the GPL or BSD licenses[?]

        Nothing. EULA means "end user license agreement." GPL and BSD are each "distribution licenses." By default, a person is allowed to do anything they want with things they purchase, and a EULA is designed to restrict that. By default, a person is never allowed to distribute someone else's copyrighted works (with some fair use exceptions), and a free distribution license is designed to be more permissible in that regard.

      • Google "firefox eula ubuntu" and you will find the answers. In fact, you might find a link to /.!

      • by itsdapead (734413) on Monday February 02, 2009 @06:25AM (#26692201)

        What would mandates inclusions to an EULA do to the GPL or BSD licenses.

        Well, unless the law was a total ass it ought not to apply unless money or "other valuable considerations" change hands.

        The wording from the UK trading standards law [tradingstandards.gov.uk] is "goods must meet the standards that any reasonable person would expect, taking into account the description, the price and all other relevant information"

        OTOH if you're charging money for GPL/BSD software (other than optional donations) then why shouldn't you be subject to a proportionate level of liability for ensuring it does what it says on the tin?

        ...and, if a free software author was spectacularly negligent or dishonest then even the current disclaimers are not going to protect them.

        Of course, the danger is that someone will let BigSoftCorp draft the law and that the "reasonable persons" will never have used a computer in their life.

        Ob. Note: apart from the disclaimers (which ought to be redundant if there's no contract) the GPL and BSD licenses are not EULAs, anyway (and its a pity that certain projects present them as click-throughs).

        • by 91degrees (207121)
          Sounds reasonable.

          My satnav runs Linux (I think). If I have a problem with it I'm going to expect the manufacturers to fix it. Not Linus Torvalds.
        • Re: (Score:3, Interesting)

          by digitalunity (19107)

          The GPL displayed as a click-through license is especially prevalent on open source Windows software. It is unfortunate that they force users to accept it to run the software, since they do not have to. This is a good opportunity to explain what a GPL is also and that their software is open source.

          • by rfc1394 (155777)
            I think the use of putting the GPL into open source Windows Software is because typically the installer programs are set up to have a "stop" for a license agreement, and rather than disable this stop on a standard install package, they just drop in the GPL. I don't think it has anything with requiring agreement to the GPL to use the software as much as not wanting to break a known-good install or not wanting to bother to rewrite the pre-built script from standard install packages, and rather than put nothi
          • Interestingly enough the wrapper dialog displaying the GPL often directly conflicts with the text of the license in claiming the user need accept it to run or install the program.

            • Not much new there. EULA's often have numerous unenforceable provisions relating to intellectual property rights as well. I've seen several that even include provisions against reverse engineering even for compatibility reasons, which is a fair use requirement of copyright law.

              That someone would improperly force a user to accept a license needlessly isn't much of a surprise.

      • I would be much more worried about some of the stipulations of the GPL v3 being called into question. Some of its restrictions that helped cure the "hacks" for the GPL v2 could also be used for pure evil in other essentially restrictive licenses. And since some of these do cover actual usage of the software, there might be issues.
        • by arogier (1250960)
          I'm waiting for Apple to try taking someone to court for using iTunes to in someway contribute to a nuclear, biological, or chemical weapon. Do the people running weapons simulations have "We'll meet again" playing while they do their thing?
      • Re: (Score:2, Informative)

        by LingNoi (1066278)

        A EULA and GPL/BSD license is completely different.

        A GPL or BSD license comes into effect the minute you download the binary or code.

        A EULA can only come into effect when you click I agree. Most free software projects stick the GPL or BSD in the license section of an installer however don't make the mistake of thinking the GPL or BSD is a EULA type license. Even if you click "refuse" on the installer you're still bound by the GPL or BSD licenses.

        • by jtev (133871)
          Um.... No. Not at all. The GPL goes into effect when you UPLOAD the software. When you distribute it. It doesn't cover use at all. Please re-read the GPL. The consideration is the ability to modify and distribute the software. The cosideration you give up is that you distribute the source code as well, in the case of the GPL, or that you give credit where credit is due, in the case of the BSD licence. Neither licence controls use, because copyright does not control use, and by having legally attaine
          • by LingNoi (1066278)

            When I upload my GPL code to the net I am not bound by the GPL as the copyright holder (assuming I own all the work), however others that share my software are, that doesn't specially have to be uploading software.

            When you distribute it. It doesn't cover use at all.

            I never said the GPL covered use of the software.

          • by cfulmer (3166)

            That is a popular misnomer. Please read sections 11 & 12 of version 2 (the parts in ALL-CAPS). Those absolutely apply to USERS of GPL software, not just to people who distribute it.

            • So you're saying that, like a EULA, the GPL does place legal restrictions on end users in the form of ALL CAPS WARRANTY WAIVERS (I never understood why in legalese it's considered polite to shout). But this clause only applies to those who exercise their right to redistribute the software, and not to ordinary non-redistributing end-users (see section 5)? How asymmetric.

              • by cfulmer (3166)

                No, I'm saying that those terms apply to all users, irrespective of Section 5.

                The reason for shouting is bizarre -- there was an old contracts case where a manufacturer disclaimed a bunch of warranties, just like what you see in the GPL, but did it in lower-case. The decision came down that since the manufacturer had hidden these very important disclaimers deep down in the contract, they weren't enforceable. If you had important terms that affected peoples rights, then you had to do something to make them

          • I think you're abusing the legal term "consideration". To my knowledge that's only applicable in contract law, not in licensing.

      • by Chyeld (713439)

        You are misreading the statement. The idea being offered is that in the spirit of "consumer protection" the FTC is gearing up to look at regulating EULA's.

    • Either way i'd still like to see an end to the "If someone breaks into your house you must delete all of this stuff within 24hrs" levels of BS we see in EULAs.

      • Either way i'd still like to see an end to the "If someone breaks into your house you must delete all of this stuff within 24hrs" levels of BS we see in EULAs.

        Have you told that to your local representative, assuming that you live in a representative democracy?

        • Even if congress somehow actually improved the situation rather than just making it worse I doubt most companies would care given that many of them already make so much money they can literally afford to break the law.

        • Either way i'd still like to see an end to the "If someone breaks into your house you must delete all of this stuff within 24hrs" levels of BS we see in EULAs.

          Have you told that to your local representative, assuming that you live in a representative democracy?

          I would but it would do no good, considering that I live in the United States of America which is republic.

    • it was never meant to be 'consumer protection'

      Of course it was. It always ways. The EULA is there to protect the corporation from its consumers.

    • Re: (Score:2, Insightful)

      I may be misunterstanding the tone of the quote but it seems to me that the 'consumer protection' being discussed here is the actual regulation of EULAs.
        To put it more clearly: It seems to me that the FTC would regulate EULAs to protect consumers from being screwed over by software makers' overly complicated EULAs

    • by Moraelin (679338) on Monday February 02, 2009 @06:53AM (#26692327) Journal

      Even that text you linked to is too complicately put and somewhat inexact.

      The fact is:

      1. Developers didn't _need_ any extra protections against unlawful redistribution, since a copyright law had existed in the UK since 1710 and in the USA since 1787. The Berne Convention was signed in 1886.

      Why does software need special protections? A book or newspaper for example is pretty clearly protected by copyright: you may not unlawfully distribute copies. You don't need EULAs for books or newspapers, so why do we need them for software?

      2. The EULA -- in its generic "software license" form -- is actually as old as the first software ever sold, and was based on a loophole in copyright law: it mentioned being copied generically, but computers needed to copy a program from punched cards (later tape, later disk) to memory to actually run it. So some wise guy figured out: ah-ha, to make a copy they need a license, so we can dictate our terms to them.

      That's how the idiotic concept of "licenses" for software was born.

      Note that it wasn't some loophole that allowed unlawful redistribution. You still couldn't use it to copy IBM's software to another deck of cards and sell it, since that would already be forbidden by normal copyright.

      It was a loophole that allowed a plain old power grab. There was this literal-minded interpretation of the law which could be mis-construed to mean: you can't use this software at all unless we grant you a license to copy it to memory. No court would have taken it that way, and if any vendor had actually tried to use it that way it would have put them out of the market right there and then. But it was enough to make people accept the notion, rather than go to court to have it clarified.

      Which then got used to weasel in more and more onerous restrictions on the user. Because, hey, if it's a license, we can set the terms of that license.

      But it never was any kind of protection against actual unlawful acts of the consumer or anyone else. It was just a way to bypass the normal consumer laws and restrict your existing liberties.

      3. The loophole has actually long been fixed, but the idiocy of a license for software has perpetuated. Just because everyone was already used to that notion.

      And the conditions continued to grow more and more absurd. Not only it generally bypasses consumer laws entirely (e.g., first sale right), it's grown to include such bullshit clauses as "you can't give it a bad review", or "you may not use it together with our competitors' software" (right up to "and we can disable it if you do"), or "we may spy on your in any way imaginable", or essentially "we can unilaterally and retroactively change the terms you 'agreed' to retroactively, in a patch you can't refuse."

      (MMOs for example love to change terms and conditions like that, and refusing it essentially disables the software you've paid for. No fallback to using the old version with the old conditions or anything. At least theoretically you can refuse to install even a Windows security patch if it tries to retrofit the EULA, but you can't refuse a WoW patch without essentially disabling your software and forfeiting your remaining paid time.)

      4. And since that loophole no longer exists, we hear more and more idiotic strawmen used to justify it.

      E.g., that otherwise you might imagine that you bought the rights to MS Word itself instead of just a copy of it. Excuse me? When was the last time anyone went on court record as thinking he bought the whole rights to War And Peace because he bought the book from Amazon? The concept of buying a copy is and was already very clear to everyone, and already defined by copyright laws. Books don't need the extra EULA to clarify that, music doesn't, DVDs don't, etc. Why the f-word is software so special that people couldn't possibly understand the same distinction there?

      5. Basically what I'd like to see clarified once and for all (by the FTC or anyone with the legal power) is to declare the whole idiocy illegal

      • by skeeto (1138903) on Monday February 02, 2009 @11:26AM (#26694529)

        EULAs are even older than that. Edison put a EULA on his phonograph records [alchemysite.com] all the way back in the 19th century.

        Patented in Great Britain, Germany, France and other Countries. This record is sold upon the condition that it shall not be re-sold to or by any unauthorized dealer or used for duplication, and that it shall not be sold, or offered for sale, by the original, or any subsequent purchaser (except by authorized jobber or factor to an authorized retail dealer) for less than 35 cents in the United States, nor in other countries for less than the price given in the current Edison catalogues of the country in which it is sold. Upon any breach of this condition, the license to use and vend this record, implied from such sale, immediately terminates.

        Edison was a freaking dick.

      • by vux984 (928602)

        (MMOs for example love to change terms and conditions like that, and refusing it essentially disables the software you've paid for. No fallback to using the old version with the old conditions or anything. At least theoretically you can refuse to install even a Windows security patch if it tries to retrofit the EULA, but you can't refuse a WoW patch without essentially disabling your software and forfeiting your remaining paid time.)

        Lousy example. WoW is a bona-fide service that simply requires software to

    • Joystiq is not saying that EULAs are or will become consumer protection. Rather, that the act of regulating them will be consumer protection.
      • by Svartalf (2997)

        The thing is, I think the GP poster is referring to the fact that the best consumer protection is to flat-out state that EULAs, in the large, are not legal. The WoW case is actually one where someone could define an End-User License Agreement (because you're using their servers, etc...), but pretty much everything else is not applicable because of the reasoning that they used in their argument there.

        I'd have to concur, if that's what he's saying.

    • You are quite correct because the EULA is all about covering your ass as a company. Most of it boils down to "You're paying us for this software and we're not even going to promise you that it will work, much less work properly. If it doesn't work, you're screwed. Have a nice day."

      2 cents,

      QueenB.

  • Legal? (Score:4, Informative)

    by im_thatoneguy (819432) on Monday February 02, 2009 @04:47AM (#26691777)

    I thought EULAs were by and large found to be toothless since the customer must open the package to agree to it. By which point the transaction is complete sans EULA.

    EULAs are in my book stupid but mostly harmless. It makes the company feel like its ass is covered but you can't agree to sign away rights. You can't agree to be a slave regardless what you sign.

    I suppose the FTC could make them officially impotent but it's not high on my list of priorities.

    • Re: (Score:3, Informative)

      I thought EULAs were by and large found to be toothless since the customer must open the package to agree to it. By which point the transaction is complete sans EULA.

      You are referring to 'shrink wrap licenses.' There is an online equivalent known as 'click wrap licenses.'

      I haven't seen a recent example of either of these rather egregious license delivery mechanisms in quite a while.

      • Re: (Score:3, Insightful)

        by im_thatoneguy (819432)

        Isn't every EULA a '* wrap license'? What do you do if you don't agree to a EULA? I don't know of any stores that will accept software once you've opened it. In order for anything in the EULA to be binding it needs to be agreed to prior to transaction. So it would seem to me by definition a EULA is legally worthless. I've spent money. Whatever was marketed on the packaging is what I agreed to purchase. No "take backs". Transaction done.

        • Re: (Score:2, Informative)

          by arogier (1250960)
          Every now and then someone gets a refund by not agreeing to the EULA, but its a rare enough occurrence that you generally find out about the refund by reading the news.
          • There is not a single major retail chain in the United States that will give a refund for opened software. The software companies made sure of this many years ago, because they did not want people opening the package, copying the disk(s), and then returning the product.

            So the software companies are VERY aware of that situation, and any statement in their EULA to the effect of "returning the product if you do not agree" is just so much hot air... bordering on fraud, in fact.
          • by harl (84412)

            According to Blizzard v bnetd they have to provide a refund if you decline the EULA.

        • by sumdumass (711423)

          Most companies started puting disclaimers on the boxes saying "this product is governed by a "end user license agreement" goto Thisweb.site, read and agree to the EULA before opening this product.

          I don't know how sane that is if a court ever hears a case concerning it. But I guess it was a response to a case about not being able to get a refund before. I think Bestbuy was involved too.

          • Re: (Score:3, Insightful)

            by Joe U (443617)

            Most companies started puting disclaimers on the boxes saying "this product is governed by a "end user license agreement" goto Thisweb.site, read and agree to the EULA before opening this product.

            I think that should be tossed out as well. It requires you to find an Internet connection and look up something on a website while standing in a store thinking 'hey, this new game looks like fun, I think I'll buy it'. It's the equivalent of the "Beware of the Leopard" display method.

            There's a simple solution that absolutely no major company would ever resort to. Put the EULA on a fold out attached to the box and optionally make the end user sign it before purchase.

        • No, not every EULA is a wrap license. Perhaps you are thinking of software solely as something distributed by large corporations.

          You do have me on one point, though. It had not even occurred to me that people still buy software off a shelf.

          Don't you lurk through the support forums before buying a package? I research the licensing, relicensing, and EULA situations before considering products for purchase. And then I usually either download or order online - basically, if you are getting caught off guard

    • by cfulmer (3166)

      At least in the US, that's not generally true. The general rule now is that EULA are enforceable if you have notice that there are additional terms and an ability to return the software once you have had a chance to review the terms. The "notice of terms" often happens with a brief notice on the outside of the box.

      When you buy a TV, the warranty comes inside the box. And, nobody says that's not binding. Why is software different?

      The law is still up in the air abit, largely because there are very few cas

      • The problem is that there is not a major retailer anywhere in the United States that, as a policy, will give refunds on software once the package has been opened. The software companies know that, because THEY were the ones who lobbied the retailers to put those policies in place. They did not want people buying a product, copying the disk(s), then returning it to the store.

        So the clause that states that one should return the software if one does not agree to the EULA is misleading, probably to the point
        • by cfulmer (3166)

          You're right. That is a problem. In general, the fallback then is to go to the manufacturer. Oddly, manufacturers aren't equipped to deal with it.

          A warranty is a contract term. Acceptance of the EULA becomes part of the sale contract. My point is that this is just another example of "pictures on the outside, terms on the inside." I should note that this idea is straight from when software did get its day in court -- it's from either the Gateway decision or the ProCD decision.

          • Most software EULAs are "shrink wrap" licenses, which have yet to be fully supported by law in the United States.

            As I have mentioned elsewhere, at least in regard to retail goods, EULA-type "contracts" have been pretty consistently rejected by the courts. In fact, they have been tried for almost every kind of retail good besides software, and I am not aware of a single instance where EULAs were upheld. In fact, there is very strong court precedent for the concept that if you bought it off the shelf in a
            • by cfulmer (3166)

              Whether it should be different is really a different question. In the US, software EULAs have been rather consistently enforced.

              The recent Blizzard case, http://www.eff.org/files/filenode/Blizzard_v_bnetd/20040930BNETDOrder.pdf [eff.org] , is an example. See p. 18.

              • My point was that they have NOT been enforced, and in fact they have been consistently rejected, in the case of just about every OTHER kind of product to ever hit the shelves, including printed books and music. So I think the question of whether EULAs should be considered valid for software is very relevant to the discussion, since so far it is the ONLY exception of which I am aware. I do not know of any logical or ethical reason it should be an exception.
      • by russotto (537200)

        At least in the US, that's not generally true. The general rule now is that EULA are enforceable if you have notice that there are additional terms and an ability to return the software once you have had a chance to review the terms. The "notice of terms" often happens with a brief notice on the outside of the box.

        Or, at least, that's the case in some Federal Circuits.

        When you buy a TV, the warranty comes inside the box. And, nobody says that's not binding. Why is software different?

        Warrantees, and disclaim

    • by kabocox (199019)

      I thought EULAs were by and large found to be toothless since the customer must open the package to agree to it. By which point the transaction is complete sans EULA.

      EULAs are in my book stupid but mostly harmless. It makes the company feel like its ass is covered but you can't agree to sign away rights. You can't agree to be a slave regardless what you sign.

      I suppose the FTC could make them officially impotent but it's not high on my list of priorities.

      I think that it should be high on the FTC's list of pr

    • by harl (84412)

      You are completely wrong. EULA have been tested in court in the USA. They are binding legal contracts. The case is ProCD v Zeidenberg. [findlaw.com]

      If you don't like the EULA then you can return the product for a refund. That was Blizzard v bnetd I think.

      • by psxndc (105904)

        You are completely wrong. EULA have been tested in court in the USA. They are binding legal contracts. The case is ProCD v Zeidenberg. [findlaw.com]

        Thanks for being the only person that remembers Pro-CD.

        Furthermore, Blizzard was awarded summary judgment in Blizzard v. MDY [virtuallyblind.com] that loading the game client into RAM - you know, starting the program up - was copyright infringement when using the Glider bot because using Glider went against the EULA and Terms of Service. Running the game normally was a licensed action and therefore copying the game into RAM was ok. However, running the game and using Glider was an unauthorized action and therefore copyright

  • by Thanshin (1188877) on Monday February 02, 2009 @05:32AM (#26691953)

    Soon EULAs and mail hoaxes will be impossible to distinguish.

    By having read the above paragraph, you agree to send your fist male son to our slave mines in Burundi. You also implicitly declare that all your bases are belong to us.

    If you don't agree with our user agreement, you have to immediately send the product back to our factories, located in the third moon of planet XN-24-Pu3d. Failure to do so in the next five seconds may result in your incarceration and, possibly, sudden death.

  • This is an speculative opinion made by the poster of the article this thread is referencing, not a new bit of news.
    This shouldn't be posted until there's someone with a little more authority on the decision than a columnist saying it.

  • by BlueStrat (756137) on Monday February 02, 2009 @06:10AM (#26692125)

    Anyone actually think the government is getting involved to make EULAs fair for consumers?

    I mean, think about it. Right now, they're basically fairly unenforceable without the corporation and EULA in question having to go to court and at the minimum get a decision in a particular case and maybe set an individual precedent.

    If EULAs basically have no or very little legal weight currently, what's the purpose of the FTC getting involved, unless it's to give them force? Especially now that there's a more media-and-entertainment-industry-friendly government in power now.

    Having the FTC get involved means that EULAs will then have a legal framework of government regulations to back them up. It's certain that any such regulations will allow consumers to get bent-over all legal-like, either by what's actually in the regulations, or what they allow by omission and loopholes in the wording.

    In looking out for citizens' rights and interests vs corporate interests & profits, I trust the government about as far as I can throw the US Capitol Building.

    Cheers!

    Strat

    • by mcelrath (8027)

      "To make laws that man cannot, and will not obey, serves to bring all law into contempt." -- Elizabeth Cady Stanton

      In other words, we're training a generation of people to ignore and disobey the law. (In this case, contract and copyright law) Then, when we create truly important laws, we will wonder why everyone ignores it. The law must be brought in line with actual practices, or it is useless. Defining a large segment of the population as criminals is a great way to create a fascist government, but pret

      • We are creating generating where everyone is gonna be guilty of some crime because normal life would be impossible without breaking all those ridiculous laws.

        Laws not enforced if citizen plays nice, but very useful to take care of troublemakers. Legal way to lock up anyone for life on whim.

        You said it yourself - great way to create fascist government.

  • If this is for real...

    The EULA's are bad enough as they are....So lets hope the FTC doesn't screw this up, and leave enough loopholes in it to cause the consumers to cry foul.
  • EULAS (Score:4, Insightful)

    by scientus (1357317) <instigatorirc@gm ... m minus math_god> on Monday February 02, 2009 @06:51AM (#26692323)

    EULA's are not very enforceable: users don't agree to them and they are contracts of adhesion.

    No papers are signed, both parties do not generally agree, and they are filed with unconscionable statements.

    Almost all EULAs claim to limit users right to resell the software, however this is unenforceable due to the First-sale doctrine [wikipedia.org]

    Copyright gives sole right to its holder the right to create copies of works, however it does not allow that holder to control what their work is used for after it has been purchaced. (besides having purchasers not make more copies of it)

    • by Peeteriz (821290)

      Exactly, and that's why consumer protection agencies should work to ensure that products sold in USA stores are not allowed to contain EULA's with misinformation about consumer rights.

    • Re: (Score:3, Insightful)

      by wild_quinine (998562)

      EULA's are not very enforceable: users don't agree to them and they are contracts of adhesion.

      I wish that were true. Unfortunately what once worked for us (the fact that nobody could really do anything about it if we broke the EULA) now works against us: companies are starting to limit our rights using online activation and restrictions, and now we're the ones who can do nothing about it. A few flailing class actions aside, who's going to go to court over a $40 game? What shops take opened products back - especially ones that are now useless?

      Almost all EULAs claim to limit users right to resell the software, however this is unenforceable due to the First-sale doctrine

      I wish that were true, too. But since many games that you

      • by kabocox (199019)

        I also understand that it's not all about the games. In fact, the most unconscionably EULAs usually are on corporate software. But I talk about games primarily because I know games, I used to love games, and I'm genuinely losing interest in one of my favourite hobbies because of how the customer is being treated.

        I know computer games can be fun, but they can be highly annoying to setup/use. That's why the bulk of my gaming library is PS2. If I want to play something, I just stick it in the PS2, see the sony

    • by mxs (42717)

      Almost all EULAs claim to limit users right to resell the software, however this is unenforceable due to the First-sale doctrine.

      ... And now, try to get that enforced. Start in operating systems, then have a whack at iTunes (the DRMed kind), and once you're done go have fun with the games industry (I hear EA is eagerly awaiting your lawsuits).

      The best of luck to you. Really.

      Hell, Microsoft ist selling non-resellable OEM copies without media now, as well as several versions of Windows designed to only work on the first computer they are installed on, codified in the so-called license. Have fun.

      • Re: (Score:1, Insightful)

        by Anonymous Coward

        Hell, Microsoft ist selling non-resellable OEM copies without media now, as well as several versions of Windows designed to only work on the first computer they are installed on, codified in the so-called license. Have fun.

        Yet another reason people should ditch Microsoft and their appalling excuse for a operating system.

        Letting a private company own your ways of communication and expression is pure stupidity. In doing so you allow that company to ruin your work and intrude upon your life.

        http://arstechnica.com/microsoft/news/2007/07/microsoft-patents-the-mother-of-all-adware-systems.ars [arstechnica.com]

    • If you look into the history of this, you will find that in the past, corporations have tried the EULA concept on just about every type of product other than software, and have been shot down in the courts every time. I don't remember the specifics enough to cite the case properly, but there is legal precedent stating that if you go into a retail store, put down your money, and walk out with a product that was on the shelf -- barring any prior agreement with the store or manufacturer -- then you have PURCHA
    • by harl (84412)

      EULA's are not very enforceable: users don't agree to them and they are contracts of adhesion.

      The 7th Circuit Court disagrees with you. Please read ProCD v Zeidenberg and Blizzard v bnetd (may not be 7th circuit).

      No papers are signed, both parties do not generally agree, and they are filed with unconscionable statements.

      It's impossible for an EULA to be unconscionable since it is a luxury good. It is completely declinable. There is no harm in declining it. Impossible to meet the test.

      Almost all EULAs claim to limit users right to resell the software, however this is unenforceable due to the First-sale doctrine [wikipedia.org]

      First sale doctrine does not apply. You signed a legal contract agreeing that you did not own these things and that you were renting access to a service. No ownership no doctrine.

      Copyright gives sole right to its holder the right to create copies of works, however it does not allow that holder to control what their work is used for after it has been purchaced. (besides having purchasers not make more copies of it)

      Completely true. Which is why they have

  • by GTarrant (726871) on Monday February 02, 2009 @08:08AM (#26692693)
    Right now, every time it is more convenient for someone to say "It's a license! Not a 'sale'!", they get to say that. It's in the EULA!

    Yet every time it's more convenient for them to say "You bought it! It's yours!", they get to say that too.

    If you lose a book, no one would say you get a free book - you bought the book. Sure the book is covered by copyright, but that doesn't mean you "licensed" the book. You lose it, then you have to get another one.

    But with software, if you lose it, it's "Oh, sorry, you bought the software, it would be piracy to get another." It's in their favor to consider it "yours" for that. But in almost every other way, it's a "License!" that they have full control over.

    IMO, one or the other. If it's just a license, then as long as it's registered in some way, if I lose it, give me a new one. If it's mine, then let me sell it when I'm done.

    Right now, the corporation wins no matter what I do.

    • Right now, every time it is more convenient for someone to say "It's a license! Not a 'sale'!", they get to say that. It's in the EULA! Yet every time it's more convenient for them to say "You bought it! It's yours!", they get to say that too. Right now, the corporation wins no matter what I do.

      I absolutely agree with this, and you would be getting modded up if I hadn't already replied to the post above yours. Also, I have no mod points.

      My feeling is that, of course, this will eventually change for the consumer's benefit. But I think that is still some time off, and meanwhile not only are software companies lobbying for whatever they want, not only are they doing and saying whatever they want, but they're implementing unfair activations, limitations, and DRMs to get away with whatever they want.

    • It's even funnier (Score:3, Informative)

      by Moraelin (679338)

      Actually, it's even funnier. IIRC in India they actually tax licenses. So if you have an actual license, say, to make a movie based on someone's book, the government wants its share of that deal.

      So they took this to the logical conclusion: if Microsoft's software is licensed, not sold, the license tax should apply.

      Microsoft actually tried to prove to the court that it's a sale not a license.

      Funny stuff.

    • have pretty consistently upheld the idea that the "first sale doctrine" applies to software, just as it does to books. In other words, you walked in to the store and bought it, and you have the right to sell it when you are done with it.
    • by mog007 (677810)

      Don't forget it's also considered YOUR piece of software if you buy it as a gift for somebody. You can't transfer a license to another person as easily as wrapping it in pretty colors and handing it to them.

  • > The development and legal communities would, I assume, vehemently oppose this idea, but it is possible.
    > Basically, the FTC would come up with a list of things all EULAs include, then a list of optional provisions
    > that the licensor (the game company) could include.

    Why would anyone oppose that? Standardizing license clauses reduces everyone's workload. A small company would not need a team of lawyers to write a EULA. And the user will be able to tell what each license means without having to read

    • by IBBoard (1128019)

      You mean a bit more like the Creative Commons site does for things like the GPL [creativecommons.org], LGPL [creativecommons.org] and others? Yeah, that'd be extremely useful. While it's not so legally strict, it means you can actually understand what people can and can't do, which is more than a legal document does for most people!

  • I once was the VP of Sales for a software company. At one point I took it upon myself to completely rewrite the EULA in plain language and then I had an attorney "lawyerize" it before making it our new license.

    This is not difficult, in fact it's much easier than actually writing software. Here's the license. [realsoftware.com]

    Easy to read and not objectionable... eh? We put the bulleted summary at the top so that the key points would be visible in the UI.

    Other companies don't do this because they choose not to.

    • used to have what they called their "No Bull license agreement."

      The agreement stated (I am paraphrasing but this is pretty close): "Treat it like a book. Use it only in one place at any given time."

      In other words, you could install the software on different machines, say at home and at work, as long as you only used one of them at a time.

      Seems pretty darned reasonable to me. Of course the lawyers took over and they don't have that in their license anymore. Too bad.
  • I've said it before but what is the actual point of them apart from allow the companies to discharge all responsibility for everything, ever?

    Hence there's not been one EULA I've taken the slightest bit of notice of, and I'm sure I'm not the only one. They are a waste of time.

  • Something I have long wondered about but never seen an answer to is what happens when a person under 18 buys a computer game and installs it himself. Minors generally can't be held to contracts, right? So are minors not allowed to install their own games without violating copyright? If a minor does install a game, what are the legal ramifications? Of course the game companies know damn well that a huge percentage of their customers are going to be under 18. I have never seen a "If you are under 18, get a pa

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