The EULA Menace

from the watch-out dept

Thu, Jul 15th 2010 2:08am — Mike Masnick

As part of the EFF's 20th anniversary, it's hosting a screening of Nina Paley's Sita Sings the Blues, a movie we've spoken about quite a few times, due to both the copyright questions around it, and Nina's subsequent business model choices. As part of her appearance, Nina also created the latest of her "minute meme" animations for the EFF, this one about EULA's, and how they make you sign away more than you realize. We figured many of you might enjoy the short video:

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Filed Under: eulas, nina paley

39 Comments

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Crosbie Fitch (profile), 15 Jul 2010 @ 2:31am

Bogus
The entire concept of an EULA is bogus.

A copyright protected work may provide a license.

That's it. No agreement required.

You have purchased a copy and copyright law does not require any agreement prior to use. Therefore tick any boxes as may be necessary to use the copy you've purchased - holding the user hostage is duress and invalidates any aspect of agreement.
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BearGriz72 (profile), 15 Jul 2010 @ 2:48am

Re: Bogus
I hope that we can get the courts to agree with that...
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BearGriz72 (profile), 15 Jul 2010 @ 2:52am

Go Nina
I actually saw this the other day when the EFF posted it. It is just as good the 2nd, 3rd, 4th .... Time. Keep it up Nina!
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Blatant Coward (profile), 15 Jul 2010 @ 3:03am

Re: Re: Bogus
Heck you won't even get microsoft to agree to it.
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Cipher-0, 15 Jul 2010 @ 3:43am

EULA != contract
Maybe I'm missing something, but how can a EULA be a legitimate contract? Don't most contracts on goods require the contract to be seen before money changes hands?
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Michael, 15 Jul 2010 @ 4:02am

Re: EULA != contract
I don't know where you live, but Connecticut state law requires it be available - not actually seen. Most software vendors would be happy to provide you with a copy of the EULA before you get the software.

In addition, software is actually returnable. It could be argued (although I'm not sure it has) that as a consumer, having the right to return the product if you do not like the enclosed EULA indicates you have agreed to it.

We need a better system. A trusted organization that certifies these agreements as not requiring you to give up your soul would be refreshing.
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Crosbie Fitch (profile), 15 Jul 2010 @ 4:04am

Re: EULA != contract
1) You've purchased a copy - the purchase 'contract' was 'a copy for money'. That is the end of the matter.

2) The copy may also provide the purchaser with a license (gratis). The purchaser may or may not exploit it as they see fit.

3) The copy may also provide a unilateral contract (which the purchaser can agree to at any time, if ever), and that contract may provide a license subject to the purchaser's agreement. The purchaser's agreement cannot be inferred, e.g. by performing an act they're entitled to perform anyway (removing shrinkwrap), nor by performing an act only permitted upon agreement to the contract.
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paperbag (profile), 15 Jul 2010 @ 4:09am

anyone else....
grossed out by the life-like human ear? :)
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btrussell (profile), 15 Jul 2010 @ 5:22am

That was excellent!

The EULA is why I have not and will not buy MS products since reading XPs'. MS owns your PC, according to them. The EULA got worse for Vista and then again for 7.
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Lawrence D'Oliveiro, 15 Jul 2010 @ 5:24am

What About ...
... this ruling that making customers tick a box saying they had read and understood the terms and conditions is unreasonable if the contract is unfair?
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abc gum, 15 Jul 2010 @ 5:25am

The EULA Menace
EULAs are bad and probably unenforceable.

Some time ago, there was a story about (I think it was) grapes sold in a bag which had a EULA printed on it. This EULA stated that upon purchase you agreed to not use the seeds to grow your own grapes.
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Jim, 15 Jul 2010 @ 5:34am

Great video!
I think an important point is that it's not necessarily ELUAs that are the problem; it's the clauses that EULAs *might* (and usually do) contain. Believe it or not, sometimes EULAs can be reasonable and serve reasonable purposes, such as clearly defining the vendor's responsibilities and privacy policies.

When it comes to online content, EULAs typically get a well-deserved bad name because they have "content usage" clauses that say the provider can do things like spy on the consumer and disable, or "brick" (as indicated in the video) content at any time and for any reason, or for no reason at all. Those types of EULAs also routinely try to take away consumer rights like fair use and first sale doctrine. Often, nasty clauses are inserted at the insistence of over-the-top zealous Hollywood lawyers (I know that may be redundant) in order to land content licensing deals. I'm clad that the video is shining a spotlight on the most nasty EULA practices.
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abc gum, 15 Jul 2010 @ 5:35am

Re: Re: EULA != contract .... & ianal
I thought that in order to have a binding contract, both parties needed to be in agreement, how can this occur when one party has not seen the terms of said agreement?

Based upon the complaints I have read numerous places, I doubt your claim of software being returnable.

In addition, I recall that courts have ruled that an unconscionable contract can be nullified.
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Anonymous Coward, 15 Jul 2010 @ 5:45am

Re: Re: EULA != contract
in NZ at least, the software is NOT returnable. most shops will replace damaged disks and the like, but they're not actually legally allowed to give you a refund or replacement product... or at least so they claim after the last change to the appropriate laws.

I'm Fairly sure that should completely invalidate the EULA in a lot of cases... but since I'm not aware of anyone ever bothering to try to enforce them here...
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Liam, 15 Jul 2010 @ 5:55am

Nice animation..
but really lacking any substance. Only people familiar with the stupidity/problems of EULAs will understand this.
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Anonymous Coward, 15 Jul 2010 @ 6:19am

the eula is just the end result of literally hundreds of years of lawsuits, rulings, new laws, packaging requirements, informational requirements, and hundreds of other little things that have been piled up over time. if you take an eula apart, you will likely find a ruling, law, or requirement for each item, even if they make absolutely no sense.

as for eff @ 20 years, i wont go there except to say that more and more i see it as a bit of a sock puppet for someone whos views have been tossed out in court often enough. as for showing ninas masterwork, well, she certainly is the type of person who would benefit from a little legal advice from the sock puppet.
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Solomon Linda, 15 Jul 2010 @ 6:33am

The Lion Sleeps Tonight
I just am tired of living in a world with so many rules to fallow, they are not intuitive, they are not fair and almost always I find myself on the loosing end of such agreements, those I just choose to take the risks and ignore the whole thing.

For f"#$ sakes I don't want to become a lawyer to buy grapes, or open emails.
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Anonymous Coward, 15 Jul 2010 @ 6:38am

Re: Re: EULA != contract
Every retail store I've worked in the States from sea to shining mother efing sea will not return your open software packages for years now. Sure late 90s I think there were a few places that did but havn't been in a store or worked in a store in a decade that didn't laugh at you for trying to return an opened box with software.
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Anonymous Coward, 15 Jul 2010 @ 6:42am

i must say too the video is horrible. it portrays every piece of software out there as some sort of trick, some sort of nasty government supported hack attack that will turn your machine into a brick if you do something bad. it is self-serving, self justifying crap, and probably more of a lie than most eulas, imho.
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Anonymous Coward, 15 Jul 2010 @ 7:28am

Re:
So does Apple, except Apple took it a step further and put at least one company out of business using its EULA. (see: Psystar)

But hopefully you're a *nix man of some sort.
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senshikaze (profile), 15 Jul 2010 @ 7:49am

Re: Re: Re: Bogus
Of course not, their entire business model is to hold the user in duress.
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AdamR (profile), 15 Jul 2010 @ 8:12am

Re:
So you're saying that they need those ridiculous EULA's to protect themselves from their own stupidity?
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senshikaze (profile), 15 Jul 2010 @ 8:21am

Re: Re:
I am!
GPL FTW!
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senshikaze (profile), 15 Jul 2010 @ 8:23am

Re: Nice animation..
every windows user i know complains about EULA's, especially the long ones that require you to scroll to the bottom. I think seeing "End User License Agreement" get the point across effectively.
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Foffth, 15 Jul 2010 @ 8:33am

Re:
"...it portrays every piece of software out there as some sort of trick, some sort of nasty government supported hack attack that will turn your machine into a brick if you do something bad..."

Like use what you bought? 'Cause that's all I saw the little round critter do.
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AdamR (profile), 15 Jul 2010 @ 8:56am

Re:
You can't be that dense, show me one good EULA and I'll show you 25 that say they can do whatever they want on your on personal property(Comptuer/Game console).
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nasch (profile), 15 Jul 2010 @ 9:03am

Re: Re: EULA != contract
I agree with you, but some courts do not. I hope that more court cases invalidate EULAs.
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nasch (profile), 15 Jul 2010 @ 9:06am

Re: Re: Nice animation..
every windows user i know complains about EULA's

But are they complaining that they have to tick a box, or scroll to the bottom? Or are they complaining about having their rights taken away? ie is it a convenience issue for them, or a justice issue?
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Anonymous Coward, 15 Jul 2010 @ 12:48pm

Re: Re:
no, they write them that way to protect themselves from the stupidity of end users. as i said, the terms are there in part because of lawsuits, legal judgments, laws, consumer information laws, disclosure requirements, and yes, protection against lawsuits for unintended results of their software.

we are in this place because of your rights, because of your government(s), and because your courts have made it that way. you would think that someone like lessig would be smart enough to know this.
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Crosbie Fitch (profile), 15 Jul 2010 @ 1:16pm

Re: Re: Re:
Ahem.

We are in this place where copyright holders pretend EULAs may bind recipients of copies because our right to copy has been suspended in order to grant publishers the privilege of a reproduction monopoly.

I would indeed think that Lawrence Lessig is smart enough to know this, but for some reason he remains a staunch advocate of copyright.

The judiciary, being largely sympathetic to publishing corporations, is also willing to err on the side of their copyright vs the individual's natural right to liberty.
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AdamR (profile), 15 Jul 2010 @ 3:10pm

Re: Re: Re:
"no, they write them that way to protect themselves from the stupidity of end users. as i said, the terms are there in part because of lawsuits, legal judgments, laws, consumer information laws, disclosure requirements, and yes, protection against lawsuits for unintended results of their software."

So you mean that releasing buggy software, making promises of what the application will but doesn't, not fixing issues but instead coming up with a new version that forces people to upgrade at some cost, and abandoning support are not the reasoning why they need EULA'S.
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Alias (profile), 15 Jul 2010 @ 3:16pm

Can a brutha get a link?
Can we get a link to this vid? I'd love to post it on FB.
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Nina Paley (profile), 15 Jul 2010 @ 5:02pm

Re: Can a brutha get a link?
That archive.org player doesn't make it easy, does it? I'm not sure it plays in Facebook at all. Luckily the cartoon is also on Youtube:
http://www.youtube.com/watch?v=W04LFvH1K8Y&feature=player_embedded

The EFF page:
https://w2.eff.org/ninapaley/

The "share" page to embed the ogg cartoon on html sites:
https://w2.eff.org/ninapaley/share.php

Thank you for sharing!
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abc gum, 15 Jul 2010 @ 6:49pm

Re: Re: Re:
Your generalizations tend to gloss over the many abuses perpetrated upon the unsuspecting public by EULAs. For example, by clicking the check box and installing the software you might be agreeing to the installation of spyware, the removal of which is in violation of the EULA. One outfit installed their spyware even if you clicked no. Then there is the EULA in which you agree to allow the collection and sale of your surfing habits. Some website TOS claim copyright upon all user submitted content. The hit parade goes on and on. So in summary, your one sided point of view is quite myopic.
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Slim Jim, 15 Jul 2010 @ 6:55pm

Re:
You must be real hit at parties
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Crosbie Fitch (profile), 16 Jul 2010 @ 1:14am

Re: Re: Can a brutha get a link?
Presumably there's also a link to a download? Perhaps even a .torrent?
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btrussell (profile), 16 Jul 2010 @ 4:20am

Re: Re:
PCLinuxOS
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packrat (profile), 16 Jul 2010 @ 4:28am

EULA
bad law is bad law. Their property rights end when you buy it.

monopoly, ownership and control from rights to interest?

it's STILL bad law.

packrat

ah... keep up the animation. the human animal being what it is, etc, hit 'em at the highest common factor.
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Nina Paley (profile), 16 Jul 2010 @ 6:12am

Re: Re: Re: Can a brutha get a link?
Archive.org page here:
http://www.archive.org/details/EffanAnimatedThankYouFromEffAndNinaPaley

Please torrent away!
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