Does A EULA Wipe Out Fair Use Provisions?
from the everything-becomes-a-contract-dispute dept
It's no secret that almost no one actually reads end user license agreements (EULAs) these days -- because, if you would, you'd almost never agree to what's in the license. In fact, there is some question to whether or not EULAs are enforceable at all, since they are often agreed to without any chance to negotiate the agreement. Ed Foster is running a series of interesting posts about a recent Ninth Circuit case that may spell bad news for copyright law when it comes to EULAs. In the case, the Los Angeles Sheriff's Department was sued because they installed copies of a piece of software on all of their computers (it was part of the image), but then limited who could use it via some sort of security token. The software company claimed that all those installations were beyond the number of licenses. The department responded that since only a limited number of people could use the software via the security token, there was no breaking of the license (claiming that only copies of the software that were used should be considered "activated"). While the case was officially a copyright case looking at whether this violated fair use rules, in the end, it apparently hinged upon the EULA -- with the Ninth Circuit court ruling that basically having an EULA trumps the provisions in section 117 of the Copyright Act that allow for fair use, and making this entirely a contractual dispute over the EULA. As Foster notes, this effectively kills that part of the Copyright Act and allows firms to simply put in their EULA that you are only buying a license to the software, and therefore things like "fair use" don't even apply. Don't think other industries won't take notice and start creating EULAs for music and movies as well. Of course, this completely contradicts a ruling we wrote about last year in the Second Circuit, that noted a EULA could not trump your Section 117 rights. Two conflicting Circuit Court rulings is the type of thing that the Supreme Court looks for in taking on a case, so perhaps one of these days we'll see the Supreme Court take on EULAs, and whether or not they can get rid of your fair use rights.Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
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Sign up for VoIP and you agree not to sue, have to go to arbitration, same with a brokerage account. Nothing new here.
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Re:
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Written Contract
Not a simple "please sign here to accept this agreement", we need to have the cashier read the entire agreement out loud (just like when I signed up for my cable companies VOIP offering today, I had to listen to him read me the lengthy federally-mandated warning about 911 and power outages) and after several minutes of that, then and only then can the consumer buy the item. To make it even better, they should be forced to listen to the contract for every single licensed item in their cart.
I can pretty much guarantee that will put an end to this whole "you're stuck with our agreement, like it or not" argument once and for all.
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Sorry -- Not a circuit split
So, I'm afraid this isn't the circuit split you are hoping for.
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Fair Use can be waived....
As much as I'd like to make one's fair use rights 'inalienable', doing so may be drifting away from the utilitarian basis of our intellectual property laws. If I'm aware that I'm signing away my fair use rights and I voluntarity do so, it would wrong of a court to invalidate that agreement.
Which isn't to say there isn't a huge problem with EULAs - the main issue is with notice, as most consumers 1) aren't aware they are giving away their fair use rights, and 2) don't even know what it means to do so.
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fair use
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refunds.
since nowhere will actually give you a refund for this reason, and most places would only offer a copy for any other reason (though make a fuss and you'll get your money back on a defective disc) this term is pure BS. once they have your money it doesn't matter if there are only rat droppings in the box, your not getting your money back.. the EULA basically makes sure of that.
but I'd be happy with an EULA on three conditions:
1, law of the land still applies, the land I'm standing on, same as all the other laws I'm subject to.
2, The agreement doesn't ntry to 'opt out' of any liability the company has for a product, you made it, stand by it.
and the biggy
3, I have a chance to see the agreement in FULL before parting with cash.
I dare say companies have a big problem with #2 since that could get expensive real fast, ditto #1 really. given these terms are never their for your benefit.
#3 is a problem for retailers, given just how big the boxes would have to be.
online software works better since you can see the agreement before buying, but points #1 & #2 still apply. though again with on line if you don't like the laws where I am, you don't have to offer me the product.
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What's the problem
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Standardized Images
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Not to mention...
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vpbun sbuq
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I have a question...
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Part of WIN XP EULA, notice the last line.. REDUND
License Agreement ("EULA") is a legal agreement between you
(either an individual or a single entity) and Microsoft
Corporation for the Microsoft software product identified above,
which includes computer software and may include associated
media, printed materials, "online" or electronic documentation,
and Internet-based services ("Product"). An amendment or
addendum to this EULA may accompany the Product. YOU AGREE TO BE
BOUND BY THE TERMS OF THIS EULA BY
INSTALLING, COPYING, OR OTHERWISE USING THE
PRODUCT. IF YOU DO NOT AGREE, DO NOT INSTALL
OR USE THE PRODUCT; YOU MAY RETURN IT TO YOUR
PLACE OF PURCHASE FOR A FULL REFUND.
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Eula imbalance
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