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  Dale Gardner, 2 May 2002 @ 5:39am

  
  

  Amusing, But Wrong

  I'm not sure where the Register gets its data that click-through license agreements are not enforceable. They might chat with a lawyer, but perhaps including some facts would spoil the fun. Don't get me wrong - licensing terms are often ridiculous (I was just reading something this morning about a Microsoft provision that would prevent the replacement of Windows on a machine with another OS...). But this sort of article isn't really helpful - how about some facts, rather than giggles?

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    W klink, 2 May 2002 @ 6:25am

    
    

    Re: Amusing, But Wrong

    A California District court (Adobe vs. Softman) did indeed rule that parts of EULA's are not enforceable in that the software was a sale and not a license.

    Note that what makes it a sale is that you go to the store, give them money, and they give you the box. Software that expires and needs new licenses every year is licensed rather than sold.

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      Dale Gardner, 2 May 2002 @ 6:50am

      
      

      Re: Amusing, But Wrong

      Fair enough, but that's not what the article was about - the author of the script asserts that by getting rid of the license, you get rid of the terms. That's rarely the case as most license agreements contain provisions that restrict such behavior - you agree to be bound by the terms even if the actual click-through is bypassed.
      
      Licensing is very complex and there are a vairety of laws that apply - articles like this one don't really help anybody because the spread misinformation and simplistic views.
      
      BTW, I disagree with your last statement about the distinction between software that is licensed rather than sold. I believe you'll find that virtually all software is licensed. Expiration only comes into play with respect to the term of the license - which may be perpeptual.

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        IMNAL, 2 May 2002 @ 11:53pm

        
        

        Re: Amusing, But Wrong

        You cannot enter into a contract with someone without a "consideration" (except in Japan where it is different). If you do not see the license then it seems to me highly likely that it is not binding in law. You cannot agree to something that you have not been given the opportunity to see.

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        Wklink (profile), 3 May 2002 @ 6:27am

        
        

        Re: Amusing, But Wrong

        It's not *my* distinction, it was the court's. Almost all software *claims* to be licensed. Adobe was certainly claiming that their bundle was licensed. The court said it wasn't a license.
        
        They just did the standard "duck" test. It looks like a sale (you give money, they give you product), it acts like a sale (there is no on-going relationship after you give them your money), therefore it is a sale. If the software expired or needed to be renewed, then there would be an on-going relationship and, therefore, a license.

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