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Can anyone with background in law in some of EU member states share their take on enforceability of the DeWitt clause[0]? I know it popped up quite a few times

Can anyone with background in law in some of EU member states share their take on enforceability of the DeWitt clause[0]? I know it popped up quite a few times here, but very few commented on it in the context of EU. [0]: https://en.wikipedia.org/wiki/David_DeWitt https://en.wikipedia.org/wiki/David_DeWitt

tpxl 8y ago
AFAIK EULA's are unenforcable in the EU. Disclosure: IANAL
- bunderbunder 8y ago
  I doubt it's anywhere near that simple. The EU, being a loose confederation of independent countries that had all been doing their own things for a very long time before joining up, has a wildly heterogeneous legal environment. Even in a single country like the US, whether a EULA will be considered enforceable depends heavily on a plethora of factors, including what court the case is being tried in.
- majewsky 8y ago
  IANAL. This is not legal advice. AFAIK, in Germany a EULA is enforceable. But if you are only presented with the EULA after having bought the product (e.g. if the software came on DVD in a shrink-wrapped box, so you couldn't look at the EULA at the store), you're entitled to a refund if you don't agree to the EULA.
  - stefan_ 8y ago
    EULAs are enforceable, but surprising or unreasonably discriminatory clauses are not. When it comes to contracts with private customers, judges tend to interpret that highly restrictively.
- mg794613 8y ago
  Eula's are enforceble. However they need to adhere to some standards. For the Dutch for example;general eula aka 'algemene voorwaarden' can not be 'unfair' this is quite ubiquitous, but still you cannot suddenly put 'anything' in there. This specific case would not hold as it is not fair to the customer. (faulty hardware has been supplied and this firmware is nothing but a correction to their shortcoming) I'm sorry that I cannot give a more elaborate explanation of this. IANAL.
CaptainZapp 8y ago
The problem with enterprise software, such as data management software, where this clause is most often used, is that it doesn't come with an EULA, but with a full blown contract negotiated between the software manufacturer and the client. Such contracts can run into dozens of pages and can be very specific. It usually contains clauses specifying precisely what the customer is allowed to do with the software and what not. A good example would be SAP, who sued Diageo for using the software in a way, which was not licensed. A court awarded the software provider north of 50'000'000 £ for allowing indirect access to the software[1] If you think you're better off by using Oracle I have a license to sell you, but I digress. Since those are full blown contracts negotiated between professional entities it's a quite safe bet that they are upheld by the courts. [1] https://www.computerworlduk.com/it-vendors/sap-indirect-access-explained-3671760/ https://www.computerworlduk.com/it-vendors/sap-indirect-acce...

tpxl 8y ago

AFAIK EULA's are unenforcable in the EU. Disclosure: IANAL

bunderbunder 8y ago
I doubt it's anywhere near that simple. The EU, being a loose confederation of independent countries that had all been doing their own things for a very long time before joining up, has a wildly heterogeneous legal environment. Even in a single country like the US, whether a EULA will be considered enforceable depends heavily on a plethora of factors, including what court the case is being tried in.
majewsky 8y ago
IANAL. This is not legal advice. AFAIK, in Germany a EULA is enforceable. But if you are only presented with the EULA after having bought the product (e.g. if the software came on DVD in a shrink-wrapped box, so you couldn't look at the EULA at the store), you're entitled to a refund if you don't agree to the EULA.
- stefan_ 8y ago
  EULAs are enforceable, but surprising or unreasonably discriminatory clauses are not. When it comes to contracts with private customers, judges tend to interpret that highly restrictively.
mg794613 8y ago
Eula's are enforceble. However they need to adhere to some standards. For the Dutch for example;general eula aka 'algemene voorwaarden' can not be 'unfair' this is quite ubiquitous, but still you cannot suddenly put 'anything' in there. This specific case would not hold as it is not fair to the customer. (faulty hardware has been supplied and this firmware is nothing but a correction to their shortcoming) I'm sorry that I cannot give a more elaborate explanation of this. IANAL.

CaptainZapp 8y ago

The problem with enterprise software, such as data management software, where this clause is most often used, is that it doesn't come with an EULA, but with a full blown contract negotiated between the software manufacturer and the client. Such contracts can run into dozens of pages and can be very specific. It usually contains clauses specifying precisely what the customer is allowed to do with the software and what not. A good example would be SAP, who sued Diageo for using the software in a way, which was not licensed. A court awarded the software provider north of 50'000'000 £ for allowing indirect access to the software[1] If you think you're better off by using Oracle I have a license to sell you, but I digress. Since those are full blown contracts negotiated between professional entities it's a quite safe bet that they are upheld by the courts. [1] https://www.computerworlduk.com/it-vendors/sap-indirect-access-explained-3671760/ https://www.computerworlduk.com/it-vendors/sap-indirect-acce...