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Author Topic: Adult conversation about this whole EULA issue.  (Read 14564 times)

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Offline iamaboringperson

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Re: Adult conversation about this whole EULA issue.
« on: August 21, 2003, 10:58:47 PM »
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A EULA would be a valid contract if you signed it, but since in most cases you do not, its not a valid contract.
Wrong. Many things can make a valid contract. A verbal contract is perfectly valid. A 'contract' is basically a fancy name for agreement
By breaking open that seal that came with your software, you are 'agreeing' to the terms of the contract written thereon. By saying yes to a salesmans offer, you are agreeing to the discussed contract.
Writing your signature is only one of the many ways a person may agree to a contract.
Remember those annoying direct mail promotions you get sometimes? (Readers Digest stuff for example) Do you know how you get the labels that they ask you to place in a particular area of one of the envelopes? When you pick a label from thing, and place it in another area, you are effectivly agreeing to a contract(or at least when you send it in, anyway).

I studied a bit of contract law this year, and I know there is more than one way to make a contract(or 'agreement'), there is also more than one way to break a contract.

 

Offline iamaboringperson

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Re: Adult conversation about this whole EULA issue.
« Reply #1 on: August 22, 2003, 02:49:15 AM »
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Step wrote:
@iamaboringperson

Sorry, my point was to say that a EULA could be valid, if handled correctly. The problem is, they are not.
Take the windows update as an example, theres usually an EULA involved, what happens when the OS decides to bug when the interaction with the user is to take place, and hit the i agree button itself, would the user be tied to the agreement ?, ofcourse not.
Theres all sorts of problems with electronic stuff like this and unlike a signature on a paper, where the actual agreement and the signature is tied to eachother, an electronic "i agree" button does not say who actually pushed the button, nor if that person is of legal age etc...

If it doesn't work, I would say the contract is invalid.
If the person who pushed the button was under age, I would say the same conditions apply as though a signature were required.
 

Offline iamaboringperson

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Re: Adult conversation about this whole EULA issue.
« Reply #2 on: August 22, 2003, 03:18:11 AM »
@mdwh2
(Sorry, whats IANAL?)
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but I find it hard to believe that the EULA-style "click an Okay button" would count.
Apparently placing a sticker, or using your fingerprint are two other ways of 'signing' a contract, so I would imagine it does count.

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For starters, there's no evidence that the user properly understood what he's agreeing to, and indeed, that he is agreeing to something.
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
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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*.
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.  It is also quite possible to disagree with the terms of a hard-copy contract, yet still sign it. Signing or pressing a button are both ways to seal the agreement, therefore the contract is made, which means there is assumed to be an understanding and agreement. Like I said: a "contract" is just a fancy name for agreement, and a contract isn't really made unless all parties agree to somthing - that is all a contract is.
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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 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.
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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".
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...
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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.
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. I guess a button is more convenient for all parties concerned. Just imagine if in the future, you had to actually sign a document. There is really not much difference. Except for the convenience

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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.
Agreed! :-D
 

Offline iamaboringperson

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Re: Adult conversation about this whole EULA issue.
« Reply #3 on: August 22, 2003, 03:33:21 AM »
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If that's true, then I can't install OS3.9 on my Amiga 1200--it didn't come with an OS pre-installed. :-/
Actually it did. All Amigas newer than the A1000(except some A3000s) came with the OS installed. The Kickstart ROM is .5 meg of an OS! That is alot!!
 

Offline iamaboringperson

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Re: Adult conversation about this whole EULA issue.
« Reply #4 on: August 22, 2003, 06:22:43 AM »
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sign on the dotted line" is widely known to be a method of signing a contract, clicking on a button isn't,
Actually it's just more traditional, we live in a time where there are all sorts of new technologies, and in most countries we are lucky enough that contract law allows for a variety of ways to make a contract.  Did you know that in Australia illiterate aboriginal people sometimes sign documents using nothing but a 'cross' on the piece of paper. How this would effect a court case I don't know. But it's nice to know the flexability is there.

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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.
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.
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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.
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.

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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.
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If on the other hand people were being asked to sign contracts before we paid for them, then that would be fair enough.
Do you think it should change?
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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.
Most other products are not subject to some of the legal problems that software is, eg. Piracy.

@all
IMO it is really helpful for everybody if they learn a bit about contracts.
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.

There is a wider definition of the word 'contract' than most people think. :-)
 

Offline iamaboringperson

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Re: Adult conversation about this whole EULA issue.
« Reply #5 on: August 22, 2003, 06:37:23 AM »
http://law.freeadvice.com/general_practice/contract_law/
:-) Found a resouce that might help, I don't know how good it is however :-)
 

Offline iamaboringperson

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Re: Adult conversation about this whole EULA issue.
« Reply #6 on: August 22, 2003, 08:28:34 AM »
So who's tintin?