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So if I put some small text into a 100 page EULA that says I may break into your house and take whatever I can carry, then I only have to make you click-through

by slrz 9y ago

So if I put some small text into a 100 page EULA that says I may break into your house and take whatever I can carry, then I only have to make you click-through and I'm all set? Awesome. Unfortunately for me, things don't work that way. For most of Europe at least, you'd be perfectly justified in treating my 100 page EULA like the garbage it is and basically ignore everything in it that isn't already prescribed by law anyway.

abtinf 9y ago
Your example is not persuasive. There are perfectly enforceable EULAs that contain terms potentially far in excess of the value of your home and all of its contents. And there are enforceable EULAs that contain rather onerous audit provisions. And in this case, it is hard to see the comparison to physical action. I am not familiar with the flight sim license in question, but there are a number of general terms it might contain that would allow for the collection behavior. Telemetry, anti-piracy, anti-cheat, audit, fitness of purpose, and many other provisions could cover this particular behavior. Further, if their claims are to be believed, they only initiated this action against a someone in already in breach of contract, so the law isn't going to protect the pirate anyway. Again, I think the company's behavior is unethical - they should have contacted law enforcement. But illegal? That is not at all clear.
- madez 9y ago
  EULAs are not generally enforceable nor legally binding at least in Europe. I personally have acknowledgment in a legal dispute that parts of even a signed contract were void and invalid because they were considered an EULA (AGB).
  - grkvlt 9y ago
    No, click through EULAs are not always enforceable. But generally, EULAs are certainly a valid and enforceable form of contract throughout Europe - how else would things work, if not through a contract describing an agreement with the end user to license the software, i.e. an EULA?
    - madez 9y ago
      An individually negotiated agreement that fulfills all the legal requirements of a contract is a valid way to ensure enforceability. But just repeating a part in many contracts is enough to make a court say that it is not individually negotiated and is therefore treated differently (AGB in German). A seemingly endless text wall with non-negotiabile terms that is considered agreed to by a click on "I have read this and agree to it" might only be binding to very limited extent, if at all. In my contract I mentioned a part was considered invalid because it was an issue that cannot be agreed to in an AGB, and the part was considered to be sufficiently AGB-like. To give another scenario, someone offers me a proprietary software. I don't know the terms and condition but I know that I need to pay for it. I then pay and receive the software. Upon starting it, it presents me with terms and conditions I need to agree to. In this scenario, the terms and conditions in the software are entirely void because the contract was established when the software was exchanged for money and the terms were not agreed to at that point. Only what is agreed to when the contract was established counts. If the software doesn't work for the intended purpose, I am free to modify it such that it does.
      - grkvlt 9y ago
        Sure, that's right, and my point was pretty much the same; any EULA that the end user is forced to or has to accept automatically is invalid, such as click-though or shrink-wrap licensing. It's really just the terminology, since EULA has a much wider meaning here, I think.

by slrz 9y ago

abtinf 9y ago

Your example is not persuasive. There are perfectly enforceable EULAs that contain terms potentially far in excess of the value of your home and all of its contents. And there are enforceable EULAs that contain rather onerous audit provisions. And in this case, it is hard to see the comparison to physical action. I am not familiar with the flight sim license in question, but there are a number of general terms it might contain that would allow for the collection behavior. Telemetry, anti-piracy, anti-cheat, audit, fitness of purpose, and many other provisions could cover this particular behavior. Further, if their claims are to be believed, they only initiated this action against a someone in already in breach of contract, so the law isn't going to protect the pirate anyway. Again, I think the company's behavior is unethical - they should have contacted law enforcement. But illegal? That is not at all clear.

madez 9y ago
EULAs are not generally enforceable nor legally binding at least in Europe. I personally have acknowledgment in a legal dispute that parts of even a signed contract were void and invalid because they were considered an EULA (AGB).
- grkvlt 9y ago
  No, click through EULAs are not always enforceable. But generally, EULAs are certainly a valid and enforceable form of contract throughout Europe - how else would things work, if not through a contract describing an agreement with the end user to license the software, i.e. an EULA?
  - madez 9y ago
    An individually negotiated agreement that fulfills all the legal requirements of a contract is a valid way to ensure enforceability. But just repeating a part in many contracts is enough to make a court say that it is not individually negotiated and is therefore treated differently (AGB in German). A seemingly endless text wall with non-negotiabile terms that is considered agreed to by a click on "I have read this and agree to it" might only be binding to very limited extent, if at all. In my contract I mentioned a part was considered invalid because it was an issue that cannot be agreed to in an AGB, and the part was considered to be sufficiently AGB-like. To give another scenario, someone offers me a proprietary software. I don't know the terms and condition but I know that I need to pay for it. I then pay and receive the software. Upon starting it, it presents me with terms and conditions I need to agree to. In this scenario, the terms and conditions in the software are entirely void because the contract was established when the software was exchanged for money and the terms were not agreed to at that point. Only what is agreed to when the contract was established counts. If the software doesn't work for the intended purpose, I am free to modify it such that it does.
    - grkvlt 9y ago
      Sure, that's right, and my point was pretty much the same; any EULA that the end user is forced to or has to accept automatically is invalid, such as click-though or shrink-wrap licensing. It's really just the terminology, since EULA has a much wider meaning here, I think.