5 ms·

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 i

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
    The contract should be signed before buying the software, not when a consumer has already paid for it or wasted his time and Internet traffic to download it. Imagine if you bought something and then learned that you have to pay again to be able to use the item. A contract should be beneficial for both parties. But EULA only limits consumer's rights without giving everything in exchange.
    - johncolanduoni 9y ago
      Most contracts limit a party's rights without giving everything in exchange.
    - deong 9y ago
      It gives the consumer access to the software. I agree that the fact that you only see them after the sale is a problem, though one that would be "solved" to some degree if every vendor could be reliably relied on to honor the terms that say "if you don't agree, return it to the vendor for a refund". There are bunches of problems around EULAs, but the general concept of an agreement you must adhere to in order to legally use the product doesn't seem especially legally shady to me. Or at least not in the ways referred to by the commenter I was replying to.
  - Retra 9y ago
    If you don't agree to the terms of the agreement then you don't have an agreement. Half the software I use has EULAs that were "agreed to" by some other third party.
- awinter-py 9y ago
  Or yeah, what if I speak a language similar to english except the word 'EULA' means 'none of the following applies'. Or what if I dance around in a circle reciting green eggs & ham whenever I sign anything? Let me know when you find the court that is willing to hear these questions. Unfortunately the 'had my fingers crossed' test from SCOTUS US v every 5 year-old was recently struck down.
  - tripzilch 9y ago
    Pretty sure that last one would go the other way, actually.
    - awinter-py 9y ago
      trey gowdy did say that james clapper only committed perjury after lying about the same thing 3 times. Fortunately congressmen's statements don't carry the weight of law.
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".

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
  The contract should be signed before buying the software, not when a consumer has already paid for it or wasted his time and Internet traffic to download it. Imagine if you bought something and then learned that you have to pay again to be able to use the item. A contract should be beneficial for both parties. But EULA only limits consumer's rights without giving everything in exchange.
  - johncolanduoni 9y ago
    Most contracts limit a party's rights without giving everything in exchange.
  - deong 9y ago
    It gives the consumer access to the software. I agree that the fact that you only see them after the sale is a problem, though one that would be "solved" to some degree if every vendor could be reliably relied on to honor the terms that say "if you don't agree, return it to the vendor for a refund". There are bunches of problems around EULAs, but the general concept of an agreement you must adhere to in order to legally use the product doesn't seem especially legally shady to me. Or at least not in the ways referred to by the commenter I was replying to.
- Retra 9y ago
  If you don't agree to the terms of the agreement then you don't have an agreement. Half the software I use has EULAs that were "agreed to" by some other third party.
awinter-py 9y ago
Or yeah, what if I speak a language similar to english except the word 'EULA' means 'none of the following applies'. Or what if I dance around in a circle reciting green eggs & ham whenever I sign anything? Let me know when you find the court that is willing to hear these questions. Unfortunately the 'had my fingers crossed' test from SCOTUS US v every 5 year-old was recently struck down.
- tripzilch 9y ago
  Pretty sure that last one would go the other way, actually.
  - awinter-py 9y ago
    trey gowdy did say that james clapper only committed perjury after lying about the same thing 3 times. Fortunately congressmen's statements don't carry the weight of law.

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".