7 ms·

That sounds a little better than the ridiculous Autodesk decision, however it sounds trivial to circumvent by simply putting a 'term of license' clause in the E

That sounds a little better than the ridiculous Autodesk decision, however it sounds trivial to circumvent by simply putting a 'term of license' clause in the EULA. I'd go so far as to say I don't think EULAs should be considered a valid legal instrument.

chmod775 9y ago
In the EU it is impossible for normal consumers to sign away most rights intended to protect the consumer. Misleading the consumer in any way about that can even end in fines.
phkahler 9y ago
>> I'd go so far as to say I don't think EULAs should be considered a valid legal instrument. Agreed. The EULA is not even mentioned at the point of sale. Most notably, the company that sold the software often has no idea who has entered into such an (alleged) agreement with them. I thought acknowledgement was a critical part of contract law, but somehow clicking a virtual button in private is claimed to qualify.
- awinter-py 9y ago
  contract-wise it seems from case law they're on pretty steady ground. Of consideration + capacity + intent, capacity is probably the trickiest when you're not in person with the counterparty. I think the more interesting angle of attack is by calling this a contract of adhesion, i.e. saying that the vendor is using their superior market position to force a long and disadvantageous contract on customers. At the point where EULA was being invoked for many or most buyers, you could probably file a class action claiming the product was falsely advertised (i.e. it costs not $9.99 but $9.99 plus 100 hours of legal fees). The uniform code of commerce is very concerned about terms hidden in long contracts, which is the reason some parts of long EULAs are in caps.
  - phkahler 9y ago
    What if I say aloud "No, I do not agree to the terms of this EULA, but I'm going to click this button in order to install the software anyway." How about that? You may say "but clicking the button indicates agreement" to which I say it does not unless I actually agree to the terms of the EULA. The EULA is the only thing defining the meaning of clicking the button... Lets suppose a techo-archeologist in 2100 finds an old PC and some MS windows install disks. Wow! he says, I've found a major artifact from a hundred years ago in the heyday of the internet! He gets it to power up and loads the disks in. He finds the EULA and takes pictures and uses OCR software to document his findings and then says "Huh, I wonder how anyone would ever read all that or agree to it, I sure don't agree with it, but I've got my research to do." And he clicks "I agree". Did he just enter into a contract? With whom? Suppose Microsoft went under completely in 2075. How does this clicking a button equate to him entering a contract? It seems incredibly absurd to me.
    - arcbyte 9y ago
      It depends. Law is generally meant to be "reasonable" and much depends on the particular facts.
    - labster 9y ago
      He'd enter into a contract with whoever bought Microsoft's IP, presumably OracleApple or Teslabet. Old corporations never die, they just fade away.
    - deong 9y ago
      Well, if you sign the contract and the contract is legally "fair" (i.e., you weren't coerced, nothing fraudulent took place, etc.), then it doesn't matter what you say. The EULA isn't the only thing defining what agreeing to the contract means. The general framework of contract law in your country defines it as well. We can quibble over whether EULAs are enforceable contracts due to one reason or another, but you can't just say, "Well I don't agree with the meaning of the EULA, therefore I'm not bound by the agreement".
      - codedokode 9y ago
  - kevin_b_er 9y ago
    You have cited class action and the uniform code of commerce. If EULA contains mandatory binding arbitration and a no class action clause, both your ideas are dead in the water. Per the SCOTUS contract law supersedes class action. Your idea for a class action is dead. Mandatory binding arbitration is not required to follow any law but the AAA. The arbiter may ignore the UCC. The UCC concerns are now dead as well. Even the _legality_ of a contract itself probably does not stop mandatory binding arbitration: http://www.law.com/sites/davidmgersten/2014/08/01/arbitration-follow-justice-or-follow-law http://www.law.com/sites/davidmgersten/2014/08/01/arbitratio...
    - awinter-py 9y ago
      I'm not a lawyer nor a consumer law expert. My theory of the case is that if the goods delivered were known to be unfit by the vendor, consideration was not met and the contract wasn't formed. Some of these contracts waive the implied warrant of merchantibility. Not sure which jurisdictions allow that. Not sure if the warrant of merchantibility is still 'implied' if a specific use is advertised and the product isn't fit for that use. I suspect the unconscionability test in contract law is stronger in contracts of adhesion.
      - awinter-py 9y ago
        actually ignore the above. I just read your law.com/davidmgersten source and I clearly have no idea what I'm talking about.
  - matt4077 9y ago
    To quote my law professor on EULAs in the EU: "I never read them. They are either fair, or unenforceable".
EpicEng 9y ago
My uneducated opinion is that it wouldn't matter, in the same way that you cannot sign away your right to warranty in the EU.
moomin 9y ago
Shouldn't be, but most definitely are as a matter of settled law in the US. :(
- pbhjpbhj 9y ago
  This is a good test of democracy surely. What proportion of the population want EULAs, want not to own stuff they bought? Yet the USA as a supposed democracy has laws that contradicts that position with arguably no benefit to society.
doikor 9y ago
EULAs in EU are a joke. A "normal" consumer cannot even sign away most of the consumer protection rights even if he wants to.
- jakc 9y ago
  A funny joke, like, do they make EUlaugh?
Tuna-Fish 9y ago
In the EU, that doesn't work. Specifically because none of the conditions of the EULA apply to the sale unless you were presented it before you paid for the product. If it's possible to purchase the product in such a manner where you are not presented the EULA before you bought it, you can ignore a lot of it's conditions.
- vixen99 9y ago
  its conditions
- codedokode 9y ago
  If a seller wants to impose some conditions of course he should do so before selling his product rather than try to deceive a customer after purchase. Only a dishonest seller would do such a thing.
  - pbhjpbhj 9y ago
    IMO any company that is using words like buy, sell, sale, purchase, get, of a product and not specifying they are selling only a _license agreement_ are committing a heinous fraud and should be fined no less than a years median profit (or, let's say, 5% of revenue as an underpin). Sure, advertise "get license to use Wandows for a limited period, further restrictions on use apply" but if you say "get Wandows for $100" then you sold it and no EULA or other additional restrictions can apply; and no, small-print doesn't count.
- brlewis 9y ago
  U.S. statute is supposedly the same. A valid contract involves consideration from both parties. After you've bought something the contract is set. One party can't subsequently say, "oh in addition you have to agree to this." Unfortunately law isn't what got written into statute or precedent yesterday. Law is what happens to you in court today.
  - kevin_b_er 9y ago
    Please stop talking about "valid contract" or "consideration" here. The EULA almost certainly contains a provision on mandatory binding arbitration. The validity of the contract may be ignored. Under "BUCKEYE CHECK CASHING, INC. v. JOHN CARDEGNA, ET AL." and "Rent-A-Center West v. Jackson" mandatory binding arbitration overrides a challenge to the validity of the contract. The arbiter will decide if the contract is valid. Under "Hall Street Associates, L.L.C. v. Mattel, Inc." the arbiters "manifest disregard of the law" is not enough to overturn an arbitration award against you. So, no, a valid contract is not required, so long as an otherwise invalid contract contains an mandatory arbitration provision, the "contract" will be decoded by mandatory binding arbitration. If you are a human vs a corporation, your win rate is 0.2% in the national arbitration forum. A purchase is not required to be locked into a mandatory binding arbitration agreement, because a whether you'd made a purchase would be part of the validity of the contract.
kevin_b_er 9y ago
A surprise contract that most don't pay attention to and severely limits the rights of the target human is an American standard.
zurn 9y ago
Also in most business contexts employees have no right to sign contracts on behalf of their employer.

chmod775 9y ago

In the EU it is impossible for normal consumers to sign away most rights intended to protect the consumer. Misleading the consumer in any way about that can even end in fines.

phkahler 9y ago

>> I'd go so far as to say I don't think EULAs should be considered a valid legal instrument. Agreed. The EULA is not even mentioned at the point of sale. Most notably, the company that sold the software often has no idea who has entered into such an (alleged) agreement with them. I thought acknowledgement was a critical part of contract law, but somehow clicking a virtual button in private is claimed to qualify.

awinter-py 9y ago
contract-wise it seems from case law they're on pretty steady ground. Of consideration + capacity + intent, capacity is probably the trickiest when you're not in person with the counterparty. I think the more interesting angle of attack is by calling this a contract of adhesion, i.e. saying that the vendor is using their superior market position to force a long and disadvantageous contract on customers. At the point where EULA was being invoked for many or most buyers, you could probably file a class action claiming the product was falsely advertised (i.e. it costs not $9.99 but $9.99 plus 100 hours of legal fees). The uniform code of commerce is very concerned about terms hidden in long contracts, which is the reason some parts of long EULAs are in caps.
- phkahler 9y ago
  What if I say aloud "No, I do not agree to the terms of this EULA, but I'm going to click this button in order to install the software anyway." How about that? You may say "but clicking the button indicates agreement" to which I say it does not unless I actually agree to the terms of the EULA. The EULA is the only thing defining the meaning of clicking the button... Lets suppose a techo-archeologist in 2100 finds an old PC and some MS windows install disks. Wow! he says, I've found a major artifact from a hundred years ago in the heyday of the internet! He gets it to power up and loads the disks in. He finds the EULA and takes pictures and uses OCR software to document his findings and then says "Huh, I wonder how anyone would ever read all that or agree to it, I sure don't agree with it, but I've got my research to do." And he clicks "I agree". Did he just enter into a contract? With whom? Suppose Microsoft went under completely in 2075. How does this clicking a button equate to him entering a contract? It seems incredibly absurd to me.
  - arcbyte 9y ago
    It depends. Law is generally meant to be "reasonable" and much depends on the particular facts.
  - labster 9y ago
    He'd enter into a contract with whoever bought Microsoft's IP, presumably OracleApple or Teslabet. Old corporations never die, they just fade away.
  - deong 9y ago
    Well, if you sign the contract and the contract is legally "fair" (i.e., you weren't coerced, nothing fraudulent took place, etc.), then it doesn't matter what you say. The EULA isn't the only thing defining what agreeing to the contract means. The general framework of contract law in your country defines it as well. We can quibble over whether EULAs are enforceable contracts due to one reason or another, but you can't just say, "Well I don't agree with the meaning of the EULA, therefore I'm not bound by the agreement".
    - codedokode 9y ago
- kevin_b_er 9y ago
  You have cited class action and the uniform code of commerce. If EULA contains mandatory binding arbitration and a no class action clause, both your ideas are dead in the water. Per the SCOTUS contract law supersedes class action. Your idea for a class action is dead. Mandatory binding arbitration is not required to follow any law but the AAA. The arbiter may ignore the UCC. The UCC concerns are now dead as well. Even the _legality_ of a contract itself probably does not stop mandatory binding arbitration: http://www.law.com/sites/davidmgersten/2014/08/01/arbitration-follow-justice-or-follow-law http://www.law.com/sites/davidmgersten/2014/08/01/arbitratio...
  - awinter-py 9y ago
    I'm not a lawyer nor a consumer law expert. My theory of the case is that if the goods delivered were known to be unfit by the vendor, consideration was not met and the contract wasn't formed. Some of these contracts waive the implied warrant of merchantibility. Not sure which jurisdictions allow that. Not sure if the warrant of merchantibility is still 'implied' if a specific use is advertised and the product isn't fit for that use. I suspect the unconscionability test in contract law is stronger in contracts of adhesion.
    - awinter-py 9y ago
      actually ignore the above. I just read your law.com/davidmgersten source and I clearly have no idea what I'm talking about.
- matt4077 9y ago
  To quote my law professor on EULAs in the EU: "I never read them. They are either fair, or unenforceable".

EpicEng 9y ago

My uneducated opinion is that it wouldn't matter, in the same way that you cannot sign away your right to warranty in the EU.

moomin 9y ago

Shouldn't be, but most definitely are as a matter of settled law in the US. :(

pbhjpbhj 9y ago
This is a good test of democracy surely. What proportion of the population want EULAs, want not to own stuff they bought? Yet the USA as a supposed democracy has laws that contradicts that position with arguably no benefit to society.

doikor 9y ago

EULAs in EU are a joke. A "normal" consumer cannot even sign away most of the consumer protection rights even if he wants to.

jakc 9y ago
A funny joke, like, do they make EUlaugh?

Tuna-Fish 9y ago

In the EU, that doesn't work. Specifically because none of the conditions of the EULA apply to the sale unless you were presented it before you paid for the product. If it's possible to purchase the product in such a manner where you are not presented the EULA before you bought it, you can ignore a lot of it's conditions.

vixen99 9y ago
its conditions
codedokode 9y ago
If a seller wants to impose some conditions of course he should do so before selling his product rather than try to deceive a customer after purchase. Only a dishonest seller would do such a thing.
- pbhjpbhj 9y ago
  IMO any company that is using words like buy, sell, sale, purchase, get, of a product and not specifying they are selling only a _license agreement_ are committing a heinous fraud and should be fined no less than a years median profit (or, let's say, 5% of revenue as an underpin). Sure, advertise "get license to use Wandows for a limited period, further restrictions on use apply" but if you say "get Wandows for $100" then you sold it and no EULA or other additional restrictions can apply; and no, small-print doesn't count.
brlewis 9y ago
U.S. statute is supposedly the same. A valid contract involves consideration from both parties. After you've bought something the contract is set. One party can't subsequently say, "oh in addition you have to agree to this." Unfortunately law isn't what got written into statute or precedent yesterday. Law is what happens to you in court today.
- kevin_b_er 9y ago
  Please stop talking about "valid contract" or "consideration" here. The EULA almost certainly contains a provision on mandatory binding arbitration. The validity of the contract may be ignored. Under "BUCKEYE CHECK CASHING, INC. v. JOHN CARDEGNA, ET AL." and "Rent-A-Center West v. Jackson" mandatory binding arbitration overrides a challenge to the validity of the contract. The arbiter will decide if the contract is valid. Under "Hall Street Associates, L.L.C. v. Mattel, Inc." the arbiters "manifest disregard of the law" is not enough to overturn an arbitration award against you. So, no, a valid contract is not required, so long as an otherwise invalid contract contains an mandatory arbitration provision, the "contract" will be decoded by mandatory binding arbitration. If you are a human vs a corporation, your win rate is 0.2% in the national arbitration forum. A purchase is not required to be locked into a mandatory binding arbitration agreement, because a whether you'd made a purchase would be part of the validity of the contract.

kevin_b_er 9y ago

A surprise contract that most don't pay attention to and severely limits the rights of the target human is an American standard.

zurn 9y ago

Also in most business contexts employees have no right to sign contracts on behalf of their employer.