EULA's worthless?

[sarius]

Link

"The Eleventh Circuit in the case of Snow v. DirecTV held that a webmaster may not exclude certain persons from his site merely by telling them their access is unauthorized."

Someone commented that EULA's wouldn't be touched, but I'm not so sure.  Since we have quite a few legal minds around here, please opinionate.

[Llava]

[Strazos]

Heh, well this should be interesting.

[Righ]

No, it doesn't make all EULAs worthless, although it does maintain that worthless EULAs are worthless. I think that the precedent for metaphorically slapping people who present baseless claims in court was already well established.

(Why does the spell checker want me to put an apostrophe in EULAs? Just because an error is common doesn't make it less of an error.)

[JoeTF]

99,99% EULAs manage to break Polish copyright law four times within first few paragraphs.
I mean, our law defines License Agreement as formal premission to distribute given material.   

[Stephen Zepp]

This one kind of blows me away--so I guess NO TRESPASSING signs are next? Or how about those signs on military bases: NO UNAUTHORIZED ACCESS, LETHAL FORCE APPROVED.

Pre-emptive Haemish blocker: Obviously, that's a joke. But their are probably some interesting parallels.

[eldaec]

No tresspassing signs simply inform the potential tresspasser rather than purport to change the legal relationship or form a contract. It's not the sign that makes it tresspassing.

It's also a fairly unremarkable feature of most legal systems that it is very difficult to prosecute trespassers on the basis of a sign without a decent fence or other clear physical barrier.

As mentioned above there are plenty of jurisdictions out there where typical EULAs include unfair contract terms (eg. by attempting to prevent secondary sale) or simply can't be considered a contract (because they aren't presented until after the purchaser has purchased the software, and do not deliver any additional benefit to the end user, in which case agreeing to it is not a contract, merely an undertaking). But I doubt this decision makes much difference to EULAs, it's likely the courts would consider that illegal use of software to be more like property theft (permanently depriving someone of their royalties) than trespass.

On the other hand if the principle were applied to age limited sites, it could have more interesting consequences.

[bhodi]

There's some decent commentary on slashdot on this. yeah, I read the comments. I'm a masochist that likes wading through sewage. I do read the WoW boards, after all.

a few salient quotes should do the trick:

The SCA is a federal statute, passed by Congress & signed by the President. It applies only when the conditions specifically described in the statute are met. In this case, those conditions are access of stored communications "without authorization". The text of the statute also contains an exception, which says that even if stored communications were accessed w/o authorization, the statute does not apply if those communications are "readily acessible to the general public." According to the Eleventh Circuit, merely requiring the user to click a button saying they agree that they are not something does not prevent a site from being "readily accessible to the general public." Contract law is hundreds of years old, based on the English common law, and modified somewhat by state legislatures. Under the common law of contracts, there are three elements to a contract: 1) An offer 2) An acceptance 3) Consideration (meaning that both parties agree to give something up) Because contract law is governed by state law, it is rarely raised in federal courts, such as the Eleventh Circuit (there are exceptions, under something called "diversity jurisdiction" or "supplimental jurisdiction" but I imagine the readers of Slashdot don't want me to give them an entire semester's worth of Civil Procedure). When a contract claim is raised in the proper court, however, a contract will generally be deemed to exist if the three elements mentioned above exist.

Karearea~ A commenter on the linked to site left this remark about EULAs, which I believe is a correct statement of the law:
    EULAs and the like are governed by contract law, which is a completely different ballgame than the SCA. Under contract law, an agreement is valid if one party offers something to another, the offer is accepted, and both parties agree to give something up. In the context of a EULA, the text of the EULA is the offer, clicking on "I Agree" is the acceptance. That means that so long as the last requirement (both parties give something up) is met, that click-through agreements are valid for EULA purposes.

In short, this case only dealt with the meaning of a particular statute (the SCA). EULAs rely on contract law, which are a totally different area of the law. This decision should not effect EULAs.

Step-Saver and Gateway hold otherwise. You can't EULA around the warantee of merchantability (or fitness for purpose) but otherwise, you're golden. I'm sure Todd Rakoff would agree with you, but not everyone else would. (In Easterbrook's court, you'd be laughed at....) Modern contracts doctrine has done away with many instances of consideration, one of the few places where it is required is to form binding (i.e. non-revocable) option contracts. There are plenty of places where "consideration" isn't really needed.... [Unilateral contracts, promissory estoppel, the UCC....]

The money you pay is your consideration.

In the case of boxed software the consideration is made to the retailer for a piece of physical property, not to the rights holder for the license.

And a license is not a contract. A license is a grant of limited rights. A license may be a valid license without being a contract at all, as most commercial EULAs are not.

They are often worded in doublespeak as if they were asking you to give something up, such as saying that you cannot copy the program to more than one computer, but this is actually a grant to copy to one computer. You are not giving up the right to copy to more than one computer because you never had that right in the first place.

EULAs are very carefully worded to give the impression that they are contracts without ever actually including any legally enforceable (certain commercial obligations of the licensee and rights held by the licensor cannot be altered by contract, they are a matter of law) contractual terms.

The GPL, oddly enough, is both a valid license and a contract, because it fully spells out the articles of consideration by both parties, the permanent assignment of what would otherwise be exlusive rights of distribution.

[HaemishM]

The funny thing about EULAs is that until challenged in court, they could mean just about anything. They MAY be legally enforceable, but if I'm not mistaken, courts have ruled against them sometimes when the EULA tries make someone give away rights that the EULA shouldn't. Companies should know that their EULA's might get challenged, and just may not mean what they think they mean. And consumers should realize that the EULA's that they never read really MIGHT mean something, even if that something is completely ridiculous.

As for the No Trespassing signs, even those clear, simple signs don't mean much LEGALLY. Because legalese is an entire other language where words only mean what you think they mean if there is precedent for such.

[CmdrSlack]

I got the impression that basically the guy let ANYONE register for his site, and they were just promising not to be someone he didn't want on the site.  However, the guy didn't do even a tiny bit of verifying.

I think this is more a case of "Dumbass loses in court" than "OMG NOES EULAS ARE TEH DOOMZORED!!@!@!!"

[Rhonstet]

How often do you purchase a software product BEFORE being aware of the EULA?  Always? 

I can't think of another industry, service or otherwise, that uses such formalized agreements that you are only allowed to see, let alone forced to agree to, after money changes hands.

[schild]

EULAs are nearly unenforceable. More than that, I can't return software once opened. So if I don't agree with the EULA, which I only see after opening said software, the company who made the software owes me $xx.xx. Or at least, that's how my warped my looks at it.

[CmdrSlack]

EULAs are nearly unenforceable. More than that, I can't return software once opened. So if I don't agree with the EULA, which I only see after opening said software, the company who made the software owes me $xx.xx. Or at least, that's how my warped my looks at it.

Too bad that many courts still uphold 'em.  Making statements like, "EULAS are unenforceable" is foolish since they are generally dealt with on a case-by-case basis -- just like clickwrap and shrinkwrap agreements.  EDIT -- There are ways to write very enforceable EULAs and very unenforceable ones.  Most people drafting them go too far, IMO and I think they should be reformed a ton.  At the same time, I calls 'em like I sees 'em.

It's good to see that your POV is still popular on the internet though.  It means more work for people like me for quite some time.  ;)

EDIT2 -- IIRC, Best Buy got smacked a few years back for not accepting returns on opened software when someone chose to not accept the EULA.  Most successful EULAs provide for a refund.  If the retailer won't, I'd imagine that the company selling the software would.  At least, that's how it is supposed to work.  It's certainly part of how many shrinkwrap and clickwrap agreements have been found enforceable -- giving the option to return the stuff if you don't agree is rather key.

As far as not expecting one....I think that in this day and age they're a lot less surprising than they were in 1996.  And, really, there's plenty of agreements and licenses that you aren't aware of until after purchase -- take concert or sporting event tickets for example -- they have terms to which you are assumed to have agreed, but you won't see 'em until after you bought the damn thing and its in your hands.

[Margalis]

The problem with software EULAs is that most of them say, in effect:

The software you have paid for is not guaranteed to do anything whatsoever.
We are not liable for anything the software does or does not do.

According to many EULAs they could be selling you blank disks and that would be ok. Or disks that just erase your HD.

[eldaec]

EULAs are nearly unenforceable. More than that, I can't return software once opened. So if I don't agree with the EULA, which I only see after opening said software, the company who made the software owes me $xx.xx. Or at least, that's how my warped my looks at it.

Too bad that many courts still uphold 'em.  Making statements like, "EULAS are unenforceable" is foolish since they are generally dealt with on a case-by-case basis -- just like clickwrap and shrinkwrap agreements.  EDIT -- There are ways to write very enforceable EULAs and very unenforceable ones.  Most people drafting them go too far, IMO and I think they should be reformed a ton.  At the same time, I calls 'em like I sees 'em.

If this has actually happened anywhere (I'm not aware of any actual cases?) you'll probably find they were where the defendent knows damn well what they are doing is illegal and are way over the line of what is reasonable. Being caught on the 'don't copy me' provision is a hell of a lot different to (for example) the 'no secondary sales' provision.

Courts have struck down individual provisions of EULAs before now.

[CmdrSlack]

IMO, there's a long way to go with fixing EULAs.  Like Margalis points out, the massive liability disclaimers are insane.  I actually found a case out of Wash. State that basically said, "Making software is HARD, so it's ok to not promise anything."

Cases that strike down individual clauses are great, but still a far cry from fixing things.  It's too bad that tech changes so fast -- a UCC-esque set of rules for EULAs would go a long way.  Of course, so many companies just copy and paste other EULAs to write their own that we already have a very uniform EULA.....