Mon, May 5 2008 9:27 AM aheram

The Validity of End User License Agreements

Wendy Grossman explains the legal gray area that surrounds End-User License Agreements (EULA) that Microsoft et al slaps on every piece of software it sells to consumers:

If you did read the terms, you might be surprised. Eulas typically specify that the software's publisher is not liable if anything goes wrong. They typically specify the publisher's preferred jurisdiction for legal disputes. And some are even more restrictive: some graphics packages have been known to specify that they cannot be used in the production of pornographic images. Yet these licences are, as Hanlon complained, not really contracts: you generally cannot read them before you buy (rather than use) the software, and you can't negotiate terms.

One of the problems that needs to be resolved in the copyfight is the validity of licenses, which not only includes all EULAs, but Creative Commons and open-source licenses like the GNU as well. An argument cannot be made that the consumer and seller participated in a voluntary-exchange, when often the terms of the EULA are not agreed to prior to the purchase. How legitimate are the claims of manufacturers that consumers are merely buying the CDs and not the permission to install and use the software for which the consumer (rightly, I might add) believed he is paying?

We do not accept that Ford or American Eagle (a clothing company) has any say in how we use the products they sell us after it is sold to us. Why then do we give software companies this right?

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# re: The Validity of End User License Agreements

Monday, May 5, 2008 4:53 PM by jtucker

thank you for raising this point, which had only vaguely occurred to me. It does seem strange doesn't it? However, restrictive covenants do this all the time with houses for example. You buy the house in a particular neighborhood and it is really yours. but you can't paint your shutters pink and you have to mow your grass and can't leave a sofa on the porch etc. Why can't EULAs amount to a sort of covenant? I want to believe that you are right, but I'm not sure.

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# re: The Validity of End User License Agreements

Monday, May 5, 2008 6:15 PM by George P. Burdell

The problem is that We the people have not allowed them.  Almost no one in the general public is aware of EULAs, and few computer industry people are either aware or care about the terms and legal precidence regarding EULAs.  The problem is that judges have failed to apply basic Common Law principles to EULAs as contracts.

# re: The Validity of End User License Agreements

Friday, May 9, 2008 2:28 PM by came

Some EULAs are legitimate, and useful to resolve conflicts. For example, the EULA of a MMORPG game prohibits installing the game on multiple computers and prohibits robots. These restrictions make the game servers more efficient because of restrictions. It is an important aspect to resolve scarce resources (like clock cycles and bandwith limits).

# re: The Validity of End User License Agreements

Friday, May 9, 2008 2:42 PM by Cork2

Microsoft can place EULAs on software, because some parts of the software can connect online and waste their bandwidth. So all EULAs must be legitimate because the user is impossible to tell whether it can connect online or not (or waste some other resources).

However, EULAs on patents are ideas on not legitimate. Knowledge should be natually redistributed from the inventor to others immediately. EULAs on patents stunts innovation.

# re: The Validity of End User License Agreements

Wednesday, May 14, 2008 2:03 PM by aheram

My main concern regarding EULAs is that it is often not agreed to before purchase. How legitimate is a contract if you must first purchase the product it pertains to before knowing the terms of it?

# re: The Validity of End User License Agreements

Friday, May 16, 2008 3:53 PM by Cork2

"My main concern regarding EULAs is that it is often not agreed to before purchase."

If the government didn't enforce EULAs, then the companies would use some methods to make sure that the user had been agreed. Anyway, abolishing government involvement of EULAs is a good idea.

# re: The Validity of End User License Agreements

Tuesday, July 8, 2008 9:01 PM by GNUMD

That is why www.gnu.org exists!

Freedom is supporting Free/Libre software alternatives.