Companies Don't Even Read Their Own EULAs Carefully
from the so-why-should-we? dept
A couple of funny stories that came out this week illustrate the extent of the problem with the End-User Licensing Agreements that we're constantly being asked to "agree" to every time we use a new piece of software. First, an Italian site noticed that the EULA for Apple's newly-released version of Safari for Windows requires that "The software allows you to install and use one copy of the Apple Software on a single Apple-labeled computer at a time." Obviously, most Windows users do not have an "Apple-labeled computer," which would suggest that they'd be violating Apple's license (and therefore infringing copyright) if they installed Safari at all. That would be ridiculous, and sure enough, a quick call to Apple confirmed that this was an oversight on Apple's part, and that you can, in fact, install Safari on a non-Apple Windows machine. The same day the Apple story was making the rounds, Chris Soghoian noticed that if read literally, Google's terms of service would prohibit anyone under 18 from using any of Google's websites. It reads "You may not use the Services... if you are not of legal age to form a binding contract with Google." As Chris points out, in most states you have to be 18 to form a binding contract, suggesting that those under 18 are prohibited from using the service. He notes that a lot of other companies, including Facebook, MySpace, and Microsoft, have friendlier terms, either limiting the services to those 13 and over or saying nothing about age at all.
This is another good reason that we should be skeptical about the idea that these kinds of perfunctory EULAs and TOSs should be treated exactly the same way as ordinary contracts signed by two human beings. When it's in their interests, companies try to argue that these kinds of contracts should be strictly enforced, for example claiming that it trumps the first sale doctrine. Yet it's been clear for a long time that users almost never read these agreements. Now it seems that even the lawyers nominally in charge of writing them don't review them very carefully. If neither party to these "contracts" takes them seriously, might that suggest that the courts should be skeptical of considering them to be contracts at all?
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A EULA is a pro forma contract
Removing shrink-wrap in order to use the product one has purchased therein does not constitute such agreement - no matter that the EULA may say it does.
What would constitute agreement would be the end user signing a document affixed to the package.
I'm sure many unscrupulous merchants would love to be able to obtain a punter's 'agreement' under duress, as an unwitting incident, or as an unavoidable consequence of enjoying one's purchase, but this doesn't make it an agreement.
Unfortunately, many lawyers and judges are only too happy to take the merchant's point of view (if they have enough money).
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Has anyone 'considered' this?
What consideration am I giving as part of the contractual arrangement?
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Re: Has anyone 'considered' this?
Google is getting the benefit of your agreement (including your forfeiture of rights and warranties, your obligations and representations related to the software, and rights granted to Google, such as termination rights) and your getting the benefit of the software (and there's usually little or no benefit of the agreement to you).
Contractual consideration exists.
It's too bad Apple and Google don't have QA on their EULAs.... When you're working on such templated documents, it's always important to have clean reads....
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EULAs / TOSAs
I also hate the ones (ahem, ahem, BANKS, ahem) that set up an "inbox" for you on your online account page, then occasionally send you an email to that inbox noting that your terms just changed. They are so long, and they change them so much, that no normal person could keep up with what they're agreeing to.
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Apple
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EULA hocus-pocus
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Safari EULA
A phone call was necessary?
Why not sue them for restricting use to "Apple-labelled" machines only?
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Re: Safari EULA
If you're on Windows, you have IE. If you are on ANYTHING you have Opera/FireFox. No reason to use Safari unless you want to.
It is Apple's product, and if they want to be R-Tards about it that's their choice.
The fact that people still DO use it with ridiculous terms like that just goes to show how apathetic people are these days.
Lack of responsibility, personal or otherwise, is exactly what's been going wrong for this country for a while now.
The fact that some of these issues span the globe just goes to show non-Americans aren't any better about somethings, as much as many would like to disagree.
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Re: Re: Safari EULA
Even if it was "a life/death necessity" you would still have an alternative.
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You are forgetting the key part...
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Re: You are forgetting the key part...
Well I think it's pretty cool the way Apple pulled that off then. I mean suddenly now they've got a list of probably millions of people that they can drop the "pirate" hammer on whenever they want. I wish I'd thought of it first. I could settle with each one for only $1000 apiece and be an instant billionaire.
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The Rule of Law
In a simplistic sense - why should anyone respect another's so-called rights if they blatantly intend to deprive you of your rights.
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You do not need to be 18 to enter into a contract
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Re:
A much better stated comment than mine on the same subject a week ago.
I thoroughly agree with your assessment of EULA's.
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I think EULAs should be done away with.
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EULA, hah!
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Tangible property or imaginary property?
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Hillary Clinton EULA
You agree to not use the Service (and you agree not to allow others to use the Service) to:
And in case this doesn't cover it, "In addition, you shall be subject to any posted guidelines or rules applicable to such Service, which may be posted from time to time." All this just to read a campaign site!
Oops. I missed this: "You agree not to reproduce, duplicate, copy, sell, exploit, or otherwise use any Content, in full or part, or any use or access to the Service, without the express written consent of the Committee."
Pretend you didn't read this stuff.
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Re: Hillary Clinton EULA
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Contract vs Licence
Note there is a difference between a contract and a licence. As I understand it, a contract is something you have to explicitly give some indication of agreeing to, e.g. by putting your signature on a document. Whereas a licence allows you to do something not otherwise permitted, and the fact of your doing it means you agree to the licence.
For instance, tne GNU General Public License is a licence, not a contract. There is no need to sign anything, or click any "I Agree" button, before you're allowed to use, modify and redistribute software covered by the GPL. If you didn't agree to it, then these actions would constitute copyright violation, therefore, the fact of your doing these things must mean you accept the licence.
It's worth noting that open-source software licences are actually crafted on terms that reasonable people can be expected to follow. Whereas closed-source ones often have strange or questionable terms in them, making it seemingly impossible for users to abide by them all (this item being a case in point). For another instance, did you know that the Microsoft Windows licence agreement forbids you from making backup copies of your OS installation?
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Re: Contract vs Licence
Agreement with a license is not indicated, and cannot be inferred, by doing something that is permitted by the license but otherwise prohibited (by copyright say).
One always has the choice of ignoring the license, e.g. infringing copyright. Thus a license that says "You may make copies so long as you give me your first born" is not agreed to by dint of the user making otherwise infringing copies.
The same applies when running licensed software in a computer and clicking a box that says "I agree to this license and will give you my first born if I break its terms". If the only way of utilising the software is to click the 'agree' box, then it's not an agreement. An agreement is something made voluntarily, e.g. if there was a second box that said "No, I do not yet agree to the license. I will take my life in my own hands and risk infringing copyright", then to tick the "I agree" box could thus be taken as a voluntary choice to agree. Otherwise, it's a bunch of abusive bunkum.
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Re: Re: Contract vs Licence
One always has the choice of ignoring the license, e.g. infringing copyright. Thus a license that says "You may make copies so long as you give me your first born" is not agreed to by dint of the user making otherwise infringing copies.
I don't know which of you is correct as far as the law goes, that is whether a license is implicitly accepted by complying with its terms. Either way, your example does not prove your case, because making copies without sending in your firstborn would not be permitted by that license.
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Re: Re: Re: Contract vs Licence
Thus if I say "You make copies of my work on condition you give me your first born, and your agreement to this is signified by making copies of my work." according to some folk around here, you don't have a choice of disagreeing and infringing copyright instead. It seems potential copyright infringement permits me to extract your agreement to any terms I fancy (subject to being legal - human trafficing in first borns thankfully being illegal these days).
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Re: Contract vs Licence
That's an interesting legal theory, which doesn't seem to accord with what the lawyers say. For examples of licences drawn up by lawyers that back up my point, consider the GPL v3:
or GPL v2, which has been successfully tested in court:
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Re: Re: Contract vs Licence
Agreement can also not be demonstrated by dint of an action that without agreement to the license would be a copyright infringement. A license may assume agreement in this case, but it can't demonstrate it to have occurred. This applies just as much to the GPL as any other license (no matter what the licenses may like to claim - and licenses often overreach as a matter of course).
A person always has the choice between accepting/agreeing to a license or ignoring it - even if they may consequently infringe copyright through lack of the license's conditional authorisation.
Similarly, while a copyrighted work may attach to itself a mechanism that disables use unless some action is performed by the purchaser, that action cannot be construed as signifying agreement to a license by the purchaser (even if the license states that it does). The purchaser is merely performing an action necessary to enable their use of the copyrighted work that they have purchased - use which may or may not infringe copyright.
NB The DMCA only prohibits circumvention of a TPM in order to infringe copyright - not to make non-infringing uses that the TPM otherwise prevents.
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Re: Re: Re: Contract vs Licence
Similarly, I could make a copy, and sell it for twice the price, still without agreeing to the GPL. The GPL may say that this infringes copyright unless I agree to the license, but it remains my choice to ignore/reject the license and infringe copyright - thus opening myself up to prosecution by the copyright holders for infringement.
Fundamentally, an agreement cannot be forced, provided unwittingly, or indicated by coincidence. One may assume or infer agreement, but agreement can only be obtained through the voluntary and informed consent of the agreeing party and this can only be demonstrated if they provide evidence of this consent. NB Evidence of compliance is not evidence of consent.
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Re: Contract vs Licence
I'd really like to see you try it, and see how far you get. Others have tried, and been slapped down pretty smartly.
You really think you'll be more successful? Go ahead--make my day.
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Re: Re: Contract vs Licence
The GPL cannot reach out and mug passersby into agreeing to the licence therein - even if they otherwise infringe copyright.
In the Red Hat example I haven't even infringed copyright, so there's zero legal standing either for infringement or breaking the terms of the license (given it couldn't actually reach out and forcibly extract my agreement without me noticing/consenting).
Admittedly the GPL has taken on some kind of magical aura in the popular consciousness, but it's not actually magical.
The most magical thing is copyright which creates the illusion that there's value in a copy, and that all copies remain the property of the copyright holder.
Abolish copyright and the black magic disappears. Intellectual property then behaves as naturally as any other form of property.
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Re: Contract vs Licence
No you're not. Go look at the examples I gave, of companies who were successfully sued into compliance with the GPL.
And while you're at it, here's more explanation, from an actual practising lawyer, who happened to have something to do with the drafting of the GPL, so he should understand more than most what it actually means. In particular, note the following quote:
Maybe you should start actually reading about some of this stuff, instead of simply continuing to insist you're right?
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Re: Re: Contract vs Licence
You'll find that my statement "By way of example, I can walk into a shop, buy a copy of Red Hat Linux, and then sell it to someone for twice the price and refuse to give them any source code. I have ignored the GPL, not agreed to it, and not infringed copyright." is quite true.
Like programmers, not all lawyers are perfect, so it may take a while before you find one who recognises the truth of my statement.
The problem is, consensus often holds more weight than truth, so if the majority of people believe that the GPL prohibits my example (as you appear to) then the truth of the matter is academic.
Try to bear in mind that the GPL is not about constraint, but about its removal, and the preservation of its removal.
And if that's too tricky, just remember "Free as in speech, not as in beer".
And when you find out I'm right, I doubt I'll get any brownie points. You along with many others will simply say I'm just being clever.
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Re: Contract vs Licence
There are no practising lawyers who "recognize the truth" of your statement. None. The difference between your attempts at arguments and the GPL is that the GPL has passed every test to which it has been subjected, whereas your arguments have not. It's as simple as that.
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Re: Re: Contract vs Licence
We could even stage the event in public. I could walk into a shop and buy a copy of Red Hat Linux (or similar GPL licensed software package) and sell it to you for twice the price (if you were willing to pay that much to see me arrested), I could then refuse to give you any source code, deny being subject to the GPL given no agreement to it, and claim I'm neither subject to a license nor that I've infringed copyright. You can then have me arrested for alleged violation of the GPL. We'll then see if any lawyers dare to defend my view that I've neither committed a crime, nor infringed copyright.
This is on the assumption the law doesn't change in the intervening period...
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Re: Contract vs Licence
In case you don't believe the lawyers, perhaps you'll believe a judge?
And admit that your arguments not only lack credibility, they don't even make sense?
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Re: Contract vs Licence
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Re: Re: Contract vs Licence
Present a case where someone has been prosecuted for conducting themselves as I describe in my example.
Failing that (as I suspect you will), find someone (especially a member of FSF or similar) who will say that they can be prosecuted and can demonstrate why.
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Re: Re: Re: Contract vs Licence
The Digital Millennium Copyright Act (DMCA) is a United States law which makes it a crime to produce or disseminate technology, devices, or services that are used to circumvent access control measures (e.g. DRM (or TPM)) that control access to copyrighted works. It also makes it a crime to circumvent an access control, even when there is no infringement of copyright itself. So, for example, watching a legitimate DVD (with DRM) on an unlicensed player is a criminal offense even if no copies are made and no copyrights are infringed. That's why there is no legal way to watch such DVDs using Linux (the DVD consortium refuses to license it there).
Now I don't claim to be familiar with the law where you are in Britian, but you certainly don't understand US law very well. And with Techdirt being a US based blog, I think most people expect you to be commenting on the situation in the US unless specified otherwise.
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Re: Re: Re: Re: Contract vs Licence
I agree that my summation of what circumventions the DMCA prohibits/permits is misleading and inaccurate.
Thanks for pulling me up on it.
Perhaps you will in turn acknowledge that I've never claimed copyright infringement is theft.
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Re: Contract vs Licence
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Re: Re: Contract vs Licence
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I have an ESLA
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Re: I have an ESLA
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Nonsensical EULAs
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Re: Nonsensical EULAs
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Re: Nonsensical EULAs
Just thought I'd add this illustration of how nonsensical Microsoft's licensing has become. If even Microsoft cannot explain it without tying itself in knots, what hope do the users have?
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valid point
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It would be great to have an 'anchor point'. Sort of an industry standard set of core principles for licensing (one set of a few sets), that a company would reference and declare 'yes this is our intent' and here are explicit conditions we add that do not counter the core license.
Still, an others have pointed out... when do you get to read these terms and how clear and simple are they written? Nothing like 3 pages of text in a window the size of a business card.
I found this interesting:
http://www.spywareguide.com/analyze/
Copy/paste in the license text and the tool returns some 'flags' about the terms.
"This system is intended to help users identify and focus on software license provisions of particular interest, even when such provisions are embedded within lengthy license agreements."
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And now Microsoft ...
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I was under the impression that breaking the EULA is handled by contract law, not Copyright law.
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GPL
It's exactly the same argument against Apple's right to control OS X - no copying was done, the disk merely changed hands.
The GPL also seems to fail to stop you from downloading a copy of Redhat (from Redhat, thus they did the copying, not you and the copy is legit) and selling the drive it's on. It's obvious that Redhat's server GAVE you the copy - as long as you don't make another you're still working with the fully legit one you were given. But this isn't really a loophole, because Redhat, the duplicator of the software, would be obligated to provide source in the usual fashion and you'd essentially just be selling someone a pre-cached download.
A web-server giving you a file like a person handing you a pamphlet. Nothing gives you copyright over the data, but through common-sense reasoning you can infer that you must have the right to read/use the data as it appears to be intended (ie, read pamphlet, run software, etc) because the owner of that right gave you (made you owner of) this copy knowing what it would be used for. Thus when you visit CNN.com for instance, they're essentially giving you digital newspaper clippings. You own that clipping and can keep it, backing it up even, as you would any other software or data (music, etc) you own.
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