Are eulas contrary to property rights?
One of my favorite blogs on Mises.org is Copyfascism Watch because it always raises challenging questions and offers great arguments and documentation. Today, the top item concerns End User License Agreements: "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?"
On the other hand, maybe eulas can be considered a kind of covenant with the user, and we readily accept such restrictions when buying homes, for example. I want to think that the blogger is right but I'm not sure. Thoughts?
Comments (38)
I see no problem with such contracts... I'm willing to be persuaded otherwise, but they seem legitimate to me.
Published: May 5, 2008 5:31 PM
I think there is nothing shocking about the idea that software is sold with covenants attached to it. Since reading them is costly, consumers can resort to the usual tricks : get info from the Web, buy what everyone else is buying and, occasionally, file suit.
One issue with copyright-like EULAs, though, is that there is no obvious solution to enforce the covenants. In some cases, it seems that their enforcement is extremely difficult and costly for the editor. Technical measures are inefficient and expensive, spying on the user through the Web is unpopular, etc. In other commercial activities, when things get so unpractical, entrepreneurs work around the problem by forgetting about the covenants and changing their business model. But in this case, they somehow fail to do so. Simultaneously, they are tempted to socialize the costs by asking the judiciary to be in charge of (and pay for) the enforcement of the covenants.
It looks a bit like a homesteader who would say : "Well, this land is not worth much to me, certainly not enough to pay for a fence surrounding it. Let's ask the City Council to pay for the fence!"
Published: May 5, 2008 5:41 PM
The problem I've always had with EULAs is that they're just too damn long. It is unreasonable to assume that someone's going to read it. Every year, I imagine that the number of non-lawyer end-users who read, for example, the Microsoft EULA for any one of their myriad projects, is numbered in perhaps the dozens. Tops.
I tried it once. I got about halfway through before my eyeballs shorted out in an effort to preserve what sanity remained.
If we had to read our EULAs, however would we get anything done?
For this reason alone, most EULAs should be laughed out of court, if an effort were made to prosecute violations.
Published: May 5, 2008 5:47 PM
I wonder why the concepts in EULA aren't widespread in physical property: "You have bought the right to use this flashlight, but in doing so you agree not to reverse engineer it, neither to use it to look at porn (under the bedcovers), etc."?
Published: May 5, 2008 5:48 PM
In theory, EULAs are nothing but contracts. The problem with EULAs are the way they are used in the market. First, EULAs are unconscionable contracts because of the common formatting of the terms, the imbalance of the terms, the fact that the terms are boilerplate, the lack of verifiable and mutually understood consent, and the fact that EULAs often attempt to enforce provisions that can not be legally enforced due to legal statutes. Second, I think there is a problem of agency with EULAs. When you purchase software, you are not buying the software from Microsoft, for example, instead you are buying it from Walmart, who bought it from Microsoft. Therefore, Microsoft has no right to enforce a contract directly on you, because they are not selling the software to you, Walmart is. Now, Microsoft could require Walmart to force you to agree to the EULA as a term of their distribution agreement, but that is not done, because then Walmart might bargain on the terms in order to provide a deal or experience for their customers, which would mean that Microsoft would have less control.
GNU and Creative Commons are slightly different animals because they are licenses controlling the republishing and use of code in a developers own software. So, some of the contract issues under Common Law that apply to common EULAs are not applicable to free software licenses, etc. However, the sole existence of free licenses is because courts no longer recognize public domain and an authors right to place his/her work in the public domain. If courts and statutes would recognize public domain, most likely free software licenses would become less prevalent.
Published: May 5, 2008 6:13 PM
Hiya George! Long time, no C.
"Microsoft could require Walmart to force you to agree to the EULA as a term of their distribution agreement, but that is not done"
Actually, it is. I looked into becoming a Microsoft reseller last year, and they do in fact require this. Microsoft's entire business model is tied up in three things:
1) Proprietary API
2) EULA
3) OEM agreements
It's how they've done business since it was just Gates & Allen, and it's how they've done what they did. They'll never allow variations willingly.
The thing is, Walmart wants a piece of that enormous pie, so they agree to those terms readily. It's worked out well for both parties, don'cha think?
"If courts and statutes would recognize public domain"
If one can establish that a work exists prior to opening it up to public domain, then the courts should have no problem. This is why you can go download Moby Dick and no one would ever take seriously the claim that the text has suddenly entered the realm of Joe Bag O. Doughnuts' copyright claims.
However, for most software you can't make this claim. A releases their IP into the wild, but B then takes it, slaps a copyright header onto it, and then claims that A stole it from B.
Unless the IP in question was already released to the public, there's a claim that has to be satisfied. If A wants to sue B for infringing on an article of public domain, A will have to provide proof that there is a prior claim. A CC or other copyright can achieve this far better than a public domain claim.
In a lawsuit, A would probably prevail. Maybe. However, there's a lot more legal protections on the books pertaining to copyright than there is for public domain. And here is the method to the GPL madness: it *is* a copyright. Rights are reserved, and judiciously granted, just like they are in a traditional copyright -- only much more permissively.
~jaq
Published: May 5, 2008 6:42 PM
"I wonder why the concepts in EULA aren't widespread in physical property . . ." - ed42
Isn't selling a property with restrictions rather similar? A nature reserve with a promise not to develop it? A house or building with a heritage listing with a promise not to modify it?
Published: May 5, 2008 10:41 PM
Same socialist argument from the same IP socialists.
In my country socialists meddled with the credit card contracts too, with the same lame arguments. The contract is too long, it is printed with small letters, customer is duped, etc etc. O the government stepped in of course.
Nobody is forcing you, using coercion or threat of coercion, to use the software and agree with the contract. There are plenty of "free" software around. They are made free by the creators, they are given away. Use them instead.
Stop trying to give excuses for theft and parasitsm.
Published: May 6, 2008 2:33 AM
And why Ford doesn't tell you how to use the product after they sold you, and software companies do.
Software companies dont sell you the software, the lease it on certain conditions. If you want to buy Office from Microsoft that would cost you around 50 billion dollars, not a couple hundered.
This is also, how people pay 3000 dollars a month for a million dolar home. By making a contract that has conditions tied to it.
Published: May 6, 2008 2:39 AM
And why Ford doesn't tell you how to use the product after they sold you, and software companies do.
Software companies dont sell you the software, the lease it on certain conditions. If you want to buy Office from Microsoft that would cost you around 50 billion dollars, not a couple hundered.
This is also, how people pay 3000 dollars a month for a million dolar home. By making a contract that has conditions tied to it.
Published: May 6, 2008 2:41 AM
I don't really see a problem with it, a contract is a contract, and we have empirical evidence that this is bothering customers and the market have already reacted to it: some Open Source software got really neat and user-friendly and a perfect replacement for their EULA'd counterparts: instead of PhotoShop, you can try Paint.NET, instead of the myriad media players for the myriad formats (+ DVD), you can try VLC Media Player, instead of myriad instant messengers, you can try Pidgin and so on. Even Outlook can be replaced by Mozilla Thunderbird + Sunbird + Sync Kolab, though it's a bit awkward, we'll sure see some improvements here in the coming years.
Published: May 6, 2008 3:33 AM
A side note on covenants: all examples cited above are related to a particularly geographic area. Maybe this is the only way in which they are truly compatible with private property. The agency of enforcement owns the common areas, such as a subdivision. This is why you don't have covenants with other consumer goods, i.e. you don't buy a head of lettuce and promise only use to French salad dressing.
Published: May 6, 2008 6:20 AM
The issue, as I see it, is really one of implied rights.
I see nothing wrong with the law implying certain commonly accepted rights in the absence of agreement to the contrary.
If I buy a railway ticket, then the fine print on the back does not bind me to some ridiculous clause - e.g. no bags allowed. It would, however, bind me if it were written in large letters at the ticket office.
Likewise with software. Once I've bought it (or the right to use it), it's too late for them to tell me that I can't copy it - even to make a backup. The EULA is binding only if I agree to it before purchase.
A house is different, because it is commonly understood to be subject to encumbrances. It's the buyer's job to find out what they are. It would be silly to change the law to imply a similiar obligation for software purchases, since the effort required would be disproportionate to the cost of the product.
Published: May 6, 2008 7:10 AM
EULAs are unenforceable in my view. First, there is no way to prove that the user accepted the EULA (many of them can be circumnavigated without clicking 'accept'). Second, the idea of a hidden contract is just spooky. It would be one thing if it was readily available for reading before purchase, but how can it be rational to enforce 'secret' contracts than can be viewed only after purchase?
Published: May 6, 2008 7:57 AM
I don't think it matters what is being bought or sold, whether physical property or software. The manufacturer or current owner of the item has the right to dispose of it in whatever way he or she pleases, which may mean restrictions on its use after the exchange. The buyer and seller are still entering into a voluntary exchange, the terms of which will most certainly affect the subjective valuation of the item in question. Restrictive EULAs or covenants must be considered part of the cost of the item, so they must be known prior to the exchange.
I think, though, that setting a legal requirement for the EULA to be of a certain length, or written so as to be understood by the "average person" naturally opens the law to broad interpretation. What is an "average person", and how does one determine whether or not a particular EULA can be understood by them? The terms of the EULA must be concrete enough that a simple re-interpretation thereof wouldn't yield an entirely different meaning, but I believe a hard line should be drawn on what the EULA actually says, rather than whether or not it's easily understood. I think consumers would respond to this hard line by being more discriminating against software that bears a long, complicated EULA, and opting instead for something sold on simpler terms. This would force manufacturers to simplify their EULAs in order to attract buyers who don't want to chase through pages and pages of restrictions.
Just my two cents.
Published: May 6, 2008 8:06 AM
Since the EULA isn't revealed until after the buyer has handed over his money, of course it shouldn't be considered a valid agreement. All the examples of convenants I know of are presented to the buyer before the sale, but a EULA is more like a legal Trojan horse that restricts the use of property one already owns.
After the sale, the buyer already owns the physical copy of the software and needs no further permission to put it in his computer and run it. Even by the software companies' own arguments this is true. In order to even see the EULA in the first place, the user has to put the CD in his computer and run setup.exe or some other program. So he must already have the right to access the software as soon as he purchases the disk. This makes sense anyway. Did you accept any EULA before you could use the embedded software in your fuel injection system or your microwave? How about your motherboard's BIOS?
There is also the possibility of stripping the EULA from the installer or bypassing it entirely by unpacking the files manually. Anyone with some technical knowledge can do this. The only thing forbidding such modifications is the EULA (and arguably the DMCA, but I hope no one here defends that), which isn't binding until it's accepted.
Of course, software companies could always ask buyers to sign a contract before the purchase, but they don't, and I suspect retailers wouldn't want the hassle.
Published: May 6, 2008 8:11 AM
Libertas: "First, there is no way to prove that the user accepted the EULA (many of them can be circumnavigated without clicking 'accept')."
Isn't there some responsibility on the part of the purchaser to understand and agree to the terms of the exchange before agreeing to it? Personally, I've never read a EULA in my life, but I've bought plenty of software that includes them. What I accept, however, is that I am bound by the agreement even though I didn't read it, and that I can't very well complain if I violate the agreement and am taken to task for it.
"It would be one thing if it was readily available for reading before purchase, but how can it be rational to enforce 'secret' contracts than can be viewed only after purchase?"
Here, I absolutely agree. If one party cannot know the terms of an exchange prior to entering into it, then the exchange is not voluntary. If the seller springs some new terms onto the buyer post-purchase, then the exchange has been made under false pretenses, and it constitutes fraud. This is why the EULA is always presented to the user prior to installation, and is typically printed somewhere in the documentation that comes with the software itself.
Published: May 6, 2008 8:22 AM
Also, I should add that the GNU GPL and Creative Commons licenses are not really EULAs in that they don't apply to end-users. The GPL grants you new rights that you wouldn't normally have under copyright law. You are free to decline the GPL to your heart's content and still use the software (see Section 9). It's just that copyright law prohibits you from distributing it without the permission the GPL gives you.
You do not need a special right merely to access content once you own a physical copy. Anyone who thinks otherwise can send me 1oz. gold for the privilege of reading this post. :)
Published: May 6, 2008 8:25 AM
"Since the EULA isn't revealed until after the buyer has handed over his money, of course it shouldn't be considered a valid agreement."
Interesting point. If a product has a defect that comes to light after it's bought the buyer is entitled to a replacement or the money back. By the same logic an EULA could actually be binding because the customer could abort the installation and return the CD and get the money back. I'm not a lawyer though.
Published: May 6, 2008 8:45 AM
One other thing I gotta say: I think that as consumers we've become very lazy and irresponsible. By and large, rather than make sure we know what we're getting into, we rush into transactions with blinders on, agreeing to the seller's terms without doing our part to understand those terms. Then, when we're blindsided by some part of the agreement due to our own failure to make an informed exchange, we use the legal system to shift the costs of our own laziness onto the seller. The result is ever-greater effort on the part of manufacturers and sellers to protect themselves from lazy consumers...thus the long, incomprehensible EULAs that are so prevalent.
Don't get me wrong. I fully realize that some sellers and manufacturers are sneaky about dictating the terms of every exchange, and still others are downright fraudulent about it. Nor do I agree with patent and/or IP laws. I do believe, though, that consumers, combined with a primarily socialist legal system bear a great deal of the responsibility in getting us to the point where manufacturers feel they must resort to such trickery. If the general public accepted that seller and buyer each bear equal responsibility in every exchange things wouldn't be nearly so complicated. Unfortunately, that's not the prevailing viewpoint.
Published: May 6, 2008 9:24 AM
I don't think that's the same thing. A store's return policy is normally posted prominently so that it is clearly visible before the sale. Sometimes the clerk has even told me, "You have 7 days to return this." You would think that stores that go through the trouble of writing a separate return policy for software would also mention that you must accept a license before you can use it, but that has never happened in my experience.
Published: May 6, 2008 9:27 AM
And in many business, it takes an act of god to spend $10 and buy something but any idiot can bind the company to an EULA. Perhaps if each EULA had to go through corporate legal first...
Published: May 6, 2008 10:07 AM
Ron, I couldn't agree more.
Published: May 6, 2008 12:13 PM
Having bought a copy of Microsoft Vista because it was pre-installed on the machine I wanted, this EULA thing has recently been important to me.
I do not use Vista, nor do I want it. So I looked at the Vista EULA to see how to get a refund.
There is no refund for Vista. In the EULA it states specifically that the one and only remedy is to return the hardware too. Period.
The GPL indeed cannot be compared to the Microsoft EULA. The GPL does not apply to end-users at all. It only applies to someone who wishes to re-use or re-distribute the code, which someone else wrote.
And that requirement is only that the same source code be available, on the same terms, as it had when it was received.
That's a "contract" I can live with.
Now, don't get me started on the GPLv3, which violates one principle of the GPL to make no restrictions on how the code is used. So it turns out that the Free Software Foundation is just as susceptible to the temptation of trying to regulate the actions of others as anyone else is. Human nature?
Published: May 6, 2008 4:00 PM
Ron, you are quite right but a bit naive.
The reason of this post and many of the comments about the "sneakiness" of the EULA's for software is about IP not the contracts themselves.
If this was about credit card contracts, which have usually the same characteristics, this kind of post would not have been made it here. People would mostly say what you said about this. That since both sides get into it voluntarily, it is their responsibility to evaluate the terms.
But..
This is an effort of legitimizing IP theft or parasitism by contract technicalities.
So your comments miss the point a little.
Published: May 7, 2008 2:15 AM
Okay, ktibuk, let's look at it this way...
Let's say you buy a vehicle from Ford, and the top speed of the vehicle is electronically limited to 90 MPH. Does this not, in effect, limit the manner in which you may use the vehicle after purchase? Sure, you could probably bypass the electronic component that limits top speed, but doing so would most likely void your warranty. The fact is, there are lots of vehicles on the market that are limited in just this manner, but no one is suing the manufacturers for it.
The point is that it's naive to think that every transaction will be simple, perfectly clear, or free from any conditions, including conditions that persist after the transaction is completed. Nor is there any reason, as far as I can tell, to believe that's the way it "should" be. Far from "legitimizing IP theft or parasitism", such contracts actually simplify the process, IMO. Rather than debating endlessly over whether or not party A thought of something before party B or party A copied the idea from party B, or whether anyone "owns" the products of his or her imagination, the entire debate can be boiled down to whether or not one party or the other was in breach of contract.
In truth, I'm kind of in agreement with you, Ktibuk, in that most of the arguments against IP laws sound, for lack of a better way to put it, like children whining because they can't do whatever they want with a piece of software or digital media once they've bought it. The same arguments have been made against technologies that were designed to protect content providers, such as the HDMI interface. It prevents copying of DVDs and other digital media, so it's been widely adopted by the digital media industry.
But anti-IP'ers often claim that it's illegitimate for a manufacturer to protect its interests in this manner as well. It is my opinion, though, that this is perfectly legitimate. No one has any obligation to provide their content in any and every format in existence, or to ensure that it is capable of being transmitted in any way the user chooses. IP laws, on the other hand, amount to a third party dictating the conditions under which two other parties may enter what would otherwise be a voluntary transaction, and are therefore incompatible with liberty.
Published: May 7, 2008 9:04 AM
Jeffrey,
You wrote:
"A side note on covenants: all examples cited above are related to a particularly geographic area. Maybe this is the only way in which they are truly compatible with private property. The agency of enforcement owns the common areas, such as a subdivision. This is why you don't have covenants with other consumer goods, i.e. you don't buy a head of lettuce and promise only use to French salad dressing."
Great questions. I think that this disparity in the use of restrictive covenants between land and moveable goods probably has less to do with ownership of the common areas (after all, there need not be any common areas in order to have an enforceable restrictive covenant, just one or more burdened estates and one or more benefited estates).
The real reason, I think, has more to do with the locational fixity of land (which, in turn allows for the enforceability of restrictive covenants even against innocent third party purchasers without actual notice of the encumberances on the land): If one wants to buy a certain parcel of real property located at spot X within a given locale, he or she can simply go down to the local recording office, and conduct an examination of the chain of title to the property located at spot X (to find out if any restrictions have been imposed upon the use of the land). Given this ease of title examination, if one were to fail to due one's due diligence, he or she would have no grounds for griping that when he or she bought the land he assumed that he or she was free to use the land in any way whatsoever.
With moveable, tangible personal property, say a brick, just because it is nearly impossible for a prospective purchaser to figure out just which brick this is, and the relevant aspects of its provenance, it is far more difficult to justify the enforcement of restrictive convenants against innocent third party purchasers without actual notice of the restrictions which were originally laced upon the property.
That said, I can think of one major way producers/sellers of personal property could structure their dealings so as to promote the covenant restrictions that would legitimately be found to run with a piece of personal property: If the object being sold were to contain a unique serial number and an address to a webpage by which one could readily discovery what restrictions have been placed on the object. This is perhaps similar to the way EULA's work, but in the latter case, unless EULAs are customary, I think it might be necessary for retail sellers to make the terms of the EULA available to purchasers before sale or to allow returns of software containing EULAs that are atypically draconian.
Published: May 7, 2008 5:23 PM
An interesting case in the world right now is the 'locking' of mobile phones. The use cannot change providers or the software used on them because the company (speifically in my example i-phone) have decided that you should stay with their system.
All fine and good. BUT what about when you sell your i-phone second hand to your mate - can he 'unlock' it? If you sell your computer to your friend can he 'fiddle' with the software?
Published: May 8, 2008 4:25 AM
EULAs are completely indefensible, and there are cases on record of companies arguing against the validity of their own EULAs in order to avoid penalty for violating them.
They're elaborate and unfunny jokes, even disregarding the invalidity of clicking an "I accept" button as a surrogate for a notarized signature. Suppose two people click it at the same time. Are they both bound by it now? Suppose I get 20 people to touch the mouse with me, like with an Ouija board. Are the spirits of the dead now bound by the EULA? They're elaborate and unfunny jokes.
Published: May 8, 2008 4:32 AM
I just wanted to pop in and note how quickly some hardcore libertarians, and I'm not going to name any names[1], start making clearly socialist arguments about how gosh-darn inconvenient it is to adhere to terms of a contract you agreed to and so you get to unilaterally violate them.
[1] A name is a term used to refer to a proper noun. An example might be "Curt_Howland".
Published: May 8, 2008 2:45 PM
Ron said: "In truth, I'm kind of in agreement with you, Ktibuk, in that most of the arguments against IP laws sound, for lack of a better way to put it, like children whining because they can't do whatever they want with a piece of software or digital media once they've bought it"
When I buy something I expect to be able to do anything I want with it (short of violating someone else's natural rights). Having bought it, it is now my property. That is what the bill of sale (and the USCC) says. I have the right to take apart a toaster I own, but I cannot disassemble Vista. I have the right to resell my toaster at a yard sale, but I cannot legally do that with Vista either. Those are just two examples of property restrictions on Vista.
Yes, I have the option of not choosing Vista. Which is what I have done. But that does not deny the fact that Microsoft is pretending to sell a product when they are in fact actually leasing it under terms undisclosed until after the transaction is finalized. And not just Microsoft, but nearly every shrinkwrap software vendor out there.
I am fine with EULAs if they are presented to me *before* purchase, and the software is not represented as the good being sold.
Published: May 9, 2008 1:53 AM
I don't entirely disagree with you, David. You're right in that purchasing a piece of software is different from purchasing a toaster, in that you're not really buying the software itself but rather a "license" to use it in a certain way.
I'm a SQL Server (Microsoft product) database administrator by trade, and that's exactly how enterprise-level software works. Anyone can go to Microsoft's website and download a copy of SQL Server for free. It even includes a trial license that allows you to use the software for a period of time before it quits working, but if you want to use it indefinitely you must purchase a license. Licensing is different for every vendor. Some license by server, others by the number of processors in a server (which is how SQL Server is licensed), and still others by the number of users that will access the product. We have one physical copy of the software, but it's licensed and installed on hundreds of servers. There is no outrage expressed over this whatsoever. It's simply the way the model for software works, and I believe it's perfectly legitimate.
The point is that consumers are used to a particular "purchase model", and they are having a hard time adjusting to the alternate model presented by digital or printed media. We're used to, as you said, going to a store, buying an item, and then being the legitimate owner of the physical item, able to dispose of it thereafter as we please. For most things this works just fine, as the activity of copying a toaster or an automobile is naturally resource-intensive and knowledge-specific. Digital media, however, is easily copied, so manufacturers had to devise other methods to protect their interests.
Now, I am firmly against IP laws and patents, as they involve the use of coercive government force to dictate the terms of an exchange, but I fully support a manufacturer's efforts to protect itself otherwise, provided that the terms of the purchase are knowable before the fact. I agree that a EULA that is completely hidden until after the purchase commitment is fraudulent, but there exists a responsibility on the part of the consumer to research the terms of the purchase beforehand and decide if he or she finds them acceptable. As far as I know, every EULA from every manufacturer, for every software or digital media product in existence, can be obtained by some means, whether this means visiting the manufacturer's website, calling the manufacturer to have a copy sent to them, carefully reading the packaging prior to purchase, or even getting a copy of it from someone else who has bought the software already. IMO, there is no obligation on the part of the manufacturer to spoon-feed everything to the consumer, nor should there be. However, were it not for IP laws it would be in the best interest of the manufacturer to make such information as plain and readily available to consumers as possible, as doing so would increase consumer confidence in the product, decrease litigation costs, and thereby lower the price of software licenses in the process.
Published: May 9, 2008 9:27 AM
''...you're not really buying the software itself but rather a "license" to use it in a certain way.''
Maybe for Microsoft SQL Server, which is sold primarily to corporations with legal departments. But not for any of their shrink-wrapped software sold to the general public. When I go into a store, hand over some money, and walk out with a shrink-wrapped box of Microsoft Vista, I have a sales receipt that says "Microsoft Vista". The receipt does NOT say " License For Microsoft Vista". Nor does it say "Opportunity to Install Microsoft Vista, During Which Time a License Will Be Presented to You."
Vista is being sold under the toaster model, so I expect to get the same rights as if I bought a toaster.
Yes, I can check up what the EULA says before hand. I can also check up on the burglary rates in a neighborhood before I move there, but that doesn't make burglary morally acceptable.
Published: May 9, 2008 2:26 PM
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).
Published: May 9, 2008 2:33 PM
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).
Published: May 9, 2008 2:35 PM
David: "Vista is being sold under the toaster model, so I expect to get the same rights as if I bought a toaster."
Again, this strikes me as lazy consumerism. Your expectation of certain entitlements is based on a false assumption...one that is easily rectified through a bit of research. You expect the same rights as if you bought a toaster because you've assumed that you're buying a toaster.
I fail to understand why this is considered somehow different from buying anything else. Nearly every item sold in any store comes with some kind of restriction on the item's use. Witness all the warning labels on electrical appliances, lawn equipment, baby paraphernalia, etc. They, in effect, limit the manner in which you can use those items. If you ignore the warning label on your lawnmower, stick your hand under the deck while it's running to retrieve a mutilated dog ball, and lose some fingers in the process, you can expect to fully bear the cost thereof...namely, the fingers you once had. You would have no recourse (I should hope) to shift the cost of your mistake to the lawnmower manufacturer. You contend, though, that Microsoft has created a lawnmower that is designed to cut off your fingers and done their damnedest to keep it a big secret.
I realize this is an extreme, hyperbolic analogy, as no piece of software will (hopefully) cause someone physical injury. The point, however, is that I'm sure you fully understand why you can't or shouldn't stick your hand under a lawnmower, but you believe that you should be able to use a piece of software in whatever manner you please while expecting the software manufacturer to absorb the cost.
"Yes, I can check up what the EULA says before hand. I can also check up on the burglary rates in a neighborhood before I move there, but that doesn't make burglary morally acceptable."
This presumes that what Microsoft is doing is a crime, with which I disagree. It would be more appropriate to state that you could research the architectural covenants in a neighborhood before you move there. You could then decide whether or not you wanted to live in a neighborhood where you're not allowed to paint your house purple.
As a side note, I do feel that by not buying Vista you have acted as responsible consumer. You considered all of the costs of the purchase and based your decision upon them. We should all be behaving thus, rather than making a purchase and complaining about it after the fact because we don't like the terms we didn't take the time to understand in the first place.
Published: May 9, 2008 3:04 PM
I believe that in the absence of an explicit contract, custom and context should decide the nature of the agreement. If a buyer or seller wants to deviate from the customary form of a transaction, fine, but then the burden is on that party to make his intentions known up front. It is not lazy for a retail customer to assume that if he takes an item off the shelf, hands it to the cashier, pays for it, pays sales tax, and gets a piece of paper with 'sales receipt' written at the top, then he now owns it.
Keep in mind that not all intellectual works have EULAs. Not even all software--not even all software for IBM-compatible PCs--has them. It is only a narrow sub-sub-sub-class of sellers demanding that a very one-sided exception to the centuries-old custom of purchasing an item from a store be carved out specifically for them.
Published: May 9, 2008 3:51 PM
The only software I buy is computer games. I'm looking at the EULA for one of them right now (when I was younger, I actually used to read every one before clicking "Accept").
Quite frankly, I'm not sure I understand the issue here. The point is to tell you that you can't make copies and sell them, which is the simplest way I know to explain it.
Here's a part of it:
"THQ grants you a non-exclusive, non-transferable license to use one copy of the Software in the country in which you acquired the Software for your own personal, non-commercial use, but retains all property rights in the Software
and all copies thereof. All other rights are expressly reserved by THQ. You may: (i) use the Software on any supported computer configuration, provided the Software is used on only one (1) such computer; and (ii) permanently transfer the Software and its documentation to another user provided you retain no copies and the recipient agrees to the terms of this Agreement. You may not transfer, distribute, rent, sub-license, or lease the Software or documentation, except as provided herein; or alter, modify, or adapt the Product or documentation, or any portions thereof."
And more about who really owns the software:
"OWNERSHIP: All right, title and interest and intellectual property rights in and to the Software (including but not limited to any titles, computer code, themes, objects, characters, character names, stories, dialog, catch phrases, locations, concepts, artwork, images, photographs, animations, video, sounds, audio-visual effects, music, musical compositions, text and "applets," incorporated into the Software), the accompanying printed materials, and any copies of the Software, are owned by THQ or its licensors. This Agreement grants you no rights to use such content other than as part of the Software. All rights not expressly granted under this Agreement are reserved by THQ."
So is the issue here intellectual property rights? They don't want you to sell the product they made?
Published: May 10, 2008 5:16 PM