Adult conversation about this whole EULA issue.

[mdwh2]

MarkTime wrote:
1.) Buy a License to run Mac OS X on Apple Branded hardware for $120
2.) Copy Microsoft Word which you didn't pay for and run it.

Act 2 is piracy, right?

1.) Buy a License to run Mac OS X on Apple Branded hardware for $120
2.) Copy Mac OS X to your Pegasos and run it, though you don't have a license to do so.

The situation being discussed here is:

1.) Buy a License to run Mac OS X, which you then install on your Pegasos. A piece of text (be it in the manual, or a pop-up box on the software) tells you that you're only allowed to do certain things with it. Irrelevant, since you've already paid for a license to use it according to the law.

Now, with that said, in just a very few countries you have a few extra options, even if the contract says otherwise, but UK and Germany are not on the list of countries that allow you to change the license to run on any machine that you want.

But it's the companies who stick these EULA in who are the ones who want to change the license to what they want, *after* the contract of purchase has taken place, and despite the fact that the End User may not wish to Agree with their changed license.

Oh, and anyone who replies to this thread automatically agrees to give me lots of money

[mdwh2]

@iamaboringperson

You are correct in that there are various ways for a contract to be made. IANAL, so I'm not sure on the exact conditions, but I find it hard to believe that the EULA-style "click an Okay button" would count.

For starters, there's no evidence that the user properly understood what he's agreeing to, and indeed, that he is agreeing to something. If I'm signing my name, that's widely known to be a method of signing a contract. If I go to a website, select "Purchase", then type in my debit card number, it's pretty clear that I was fully consenting to want to make a contract of purchase. In a verbal contract, the people involved can make clear in words that they both agree to the terms. With an EULA, the user may not agree with the terms at all, and I don't think the fact that the user is using the software is any proof *since he is fully entitled to use his legally purchased software, without having to agree to any post-purchase conditions*.

Furthermore, there's the fact that you are forced to click the "I agree" button in order to use the software, so it's not really a contract entered into freely and without coercion.

What if I block someone's way and say "If you walk past me, you agree to pay me £100", or perhaps put a sticker on my head saying "Anyone who shakes my hand must pay me £10 a week for the rest of their life". These seem silly examples, but I'm finding it hard to see how these differ from EULAs. Indeed, if EULAs are found to be legally enforceable anywhere, then I'm writing software that sticks "You agree to pay me lots-of-money" in the installer - I'm sure I'll get quite a few people who don't read the small print;)

Lastly there are other reasons why the EULA can never have been considered to be agreed too, for example if the user does a manual installation (or somehow bypasses that bit of the installation), or if someone else installs it for him.

A lot of people seem to be emphasing that a EULA is a License - may I also remind people that the A stands for Agreement, so without free agreement from both sides, there is no EULA.

[mdwh2]

iamaboringperson wrote:
(Sorry, whats IANAL?)

I Am Not A Lawyer

As with a hard-copy contract, there is no guarantee that it was read - or understood, however since above the space above the dotted line (!!) there are usually words that read somthing like: "I have read [the contract] and agree to the above... bla bla bla, sign here:". It's pretty much the same as pressing a button, and should be treated the same in court - should the matter ever arise

True, but "sign on the dotted line" is widely known to be a method of signing a contract, clicking on a button isn't, which is why I argue that there needs to be extra consideration as to whether it really counts. It would seem a rather bizarre situtation if *absolutely anything* can be counted as meaning agreement, and that one side gets to decide this method, without worrying about what the other party thinks.

Not quite true. You buy the licence, and if you find that you disagree, you can't(or shouldn't) just continue using it, you should send it back.

I think this is a crucial part of the argument - is it the case that the user buys a licence to use the software, and then afterwards the software tries to enforce additional terms and conditions (the argument being that if they can be enticed into clicking "I agree", then they can be enforced)? Or are you saying that the user buys the licence without being allowed to see the terms and conditions until after the money has changed hands?

Well, if Amiga Inc wishes to send me £30, plus a bit extra to cover p+p, I'll send them back OS3.9 since I don't agree with the EULA, and I'll be glad to know that I'm doing my bit in helping the Amiga market;)

What coercion? Who's coercing you? It is exactly the same as signing a document before you are allowed to drive away in a new car, or live in a new appartment.

I sign these things before I hand over the money. If I came home one day to find that I wasn't able to get into my flat because the locks had been changed, and the landlord said he'd let me back in only when I signed some new conditions, I'd be furious! And this would be downright illegal for him to do. The fact that I might have the choice to move elsewhere is irrelevant - we already made a contract.

There would have to be a concious effort to do so. Such an agreement is fine if the other party agree's  with out dures etc...

Really? Does this mean you will send me money for posting to this thread? (see my earlier message)

Just remember that it is exactly as having a representative from Microsoft(for example) comming into your home and asking you to sign a document before you use the software.

Yes, I agree, it is like that. And if a Microsoft representative turned up at my house saying he wanted me to sign something for software I've already paid for, I'll tell him to piss off, and be well within my rights to do so.

If on the other hand people were being asked to sign contracts before we paid for them, then that would be fair enough. And then hopefully people would wonder why they're being asked to sign legal documents to use software, when we don't have to do this for any other common product.

[mdwh2]

iamaboringperson wrote:
IMO if you don't like to sign - don't sign, if you don't like to click - don't click. Some people would see clicking on 'I agree' as being much more convenient than signing a document and sending it through the post for example.

So how do I use my software without clicking the "I agree"? If this was done as a seperate option, so that the software was still installable and useable without having to agree, then I agree that such a contract would be fair and enforceable.

Well, imagine if you had to sit in the computer shop and sign on the dotted line there? There are not many other alternatives, that I can imagine. Especialy not ones that are as convienient for the end user.
I believe that these clickable contracts(hey I invented a term there!) are mainly there for the end users convenience, i think some old software just had registration cards to send in.

Signing versus clicking isn't the issue. The issue is seeing the terms before paying, versus seeing these terms only after paying. The issue is being given the choice of whether you want to agree or not, versus finding out that the thing you paid and made a contract for doesn't work until you give into this additional contract.

Really? Does this mean you will send me money for posting to this thread? (see my earlier message)

What it means is that if you said "I sell XYZ product, send me an email telling me that you want it, I'll send it out to you and bill you for it", and if I were to do as you instructed, I have made an order, a contract(or agreement) has been made, and you would be obliged to send what I ordered, and I would be obliged to pay for it.

But EULAs don't work like you describe at all! In your example, the terms are laid out before payment, and a fully working product is then sent out without requiring additional hidden contracts. What we have is an arbitrary action that is legal for the user to do, and an action that they would probably want to do even if they don't agree to some contract (be it posting to this thread, or installing the software). Someone saying "if you do this, then you agree with that" doesn't make it a contract, unless "this" is something that they would only do because they actually agree with "that".

Do you think it should change?

I think that either: The terms should be available before payment - if it's online, you should be made to agree to them via an "I Agree" click; if it's offline, the salesperson should draw the person's attention to them, and state that they must agree to them before as part of the purchase. Or alternatively, the software should be installable and useable without having to agree to an additional contract.

You'll see that nowhere am I suggesting we go through the process of signing a contract, so the argument that a EULA is more convenient doesn't hold. It's only more "convenient" for the company :/

Most other products are not subject to some of the legal problems that software is, eg. Piracy.

But Piracy is covered by law. How does an additional contract help matters here? The only use I can see is that it clarifies what they can and can't do (as opposed to trying to define the law itself).

Did you know that when you buy an item from a shop, they give you the item, you give the money - there a contract has just been made.
If you use a vending machine, contracts still applicable.

Exactly! The contract has already been made when I'm sitting here trying to install my legally purchased software. Which is why there is no need to agree to *another* contract.

[mdwh2]

pixie:

"it got a sticker!!"

In fact, the licence says "Amiga-labeled or Amiga-licensed" .. I've got a few Amiga labels lying around here, I could always stick them to my PC if necessary

Hmm, whilst reading through, I noticed an interesting bit at the end:

"No amendment or modification of the License will be binding unless in writing and signed by Amiga."

I like that. Whilst we are assumed to have agreed to the License merely by reading it or using the software, we have to resort to strict official measures if we want to get Amiga to agree to anything. Why can't I just post a copy of my preferred License to Amiga, and say "If you don't send a letter back saying No, I'll assume you agree with it"? If EULAs are supposedly for the consumer's convenience to avoid the hassle of signing, why doesn't the same logic apply to Amiga?

[mdwh2]

DaveP wrote:
You don't use the software if you cannot agree to the Ts and Cs under which it is sold. Send it back. Simple.

But it wasn't sold under those Ts and Cs.