About Eulas

#21

Quote:You own the physical media, not the license to do anything with the content on the media. You're arguing two different things (as are they). The purpose of "returning the media" is to remove the content from your hands, not to remove the media from your hands. Content is an intangible entity that people buy all the time, but we get confused when we think of not owning something tangible. We're a culture of tactile consumers, but we're moving into an intangible area in terms of property rights.

Right, but that's what I meant by my "lot of room" comment. My original post was framed around what (little) I'd read about reverse engineering. Reverse engineering, within limits, is perfectly legal. EULAs often prohibit reverse engineering.

Starting to see my point?

#22 More like... fat chance of that NOT holding up in court. If you break the seal, youv'e agreed to whats written on the seal. Likewise, if you've downloaded and installed the software and it is clearly stated that there even was a EULA that you are agreeing to, it is your responsibility, NOT the companies, to ensure that you understand and follow it.

Anyone who buys a game engine, regardless of how cheap it may be, for any purpose, should definitely read the EULA. If someone intends to distribute a product, it seems downright stupid not to check what you are and are not allowed to do within the grounds of that EULA.

I myself read the EULAs for:
Artistic software
Development software
Engines
Music Composition software

I don't read the EULAs for:
Video Games
Operating Systems
Generic Apps

Seriously, people who don't read the EULAs have no one to blame but themselves...

#23 Http://www.gripe2ed.com/scoop/story/2004/12/20/8257/4850

I made a post in reply to David Blake's on-target post above that the board ate, making the very same point made at that link, that the shrinkwrap licence (at least as it existed in 2003) isn't a kosher business practice.

#24

Quote:
Fat chance of that holding up in court.

It holds up. That's why they started doing it. And it's why they keep doing it.

I didn't say I like it or I agree with it. Just that they do it.

EDIT:
As Ed Foster's article says, the mfrs. now make the EULAs available for public viewing before purchase, but the shrinkwrap still says so-and-so.

#25 Http://www.sethf.com/infothought/blog/archives/000173.html

I did find this. I don't recall any shrink-wrap notices on my games, which begs the question, how can one agree to a contract when one doesn't even know one is agreeing to a contract?

I think, given the extraordinary nature of software licensing (you pay to buy a product you don't own), that software companies should be made to provide their EULAs up-front. Not inside the box, not in the installer, not on a Website, but up-front.

Why should the customer bear the burden of returning the software at his own cost (gas, postage, restocking fee, whatever) when the company won't even make a good faith effort to make known the licensing agreements in their contracts (non-negotiable contracts designed by the company I might add)?

#26 For the hell of it, I just grabbed 3 random Cds and started the install process. Each of which said that I must agree to the eula to install

#27 Well, yeah...afaik 100% of them do.

#28 Yeah, I just remembered that many of the games I've ordered online weren't even in shrink-wrap (just paper sleeves, OEM style)! This sort of moots the discussion, when games commonly shrink-wrapped are offered for sale in a non-shrink-wrapped form.

Then there's the question of resale. Don't some (most?) game EULAs allow resale? What then? I'm assuming most such sales don't involve tearing open shrink-wrap that has already been torn open and discarded long ago.

#29 I think the resale clause of most EULAs says you're allowed to resell the product as long as the new buyer agrees to be bound by the terms of the EULA as if he were the original buyer. (But I'm not about to go reciting the EULA to a buyer when I sell used SW.)

#30 It's the same thing as buying music CD's. It doesn't have a eula but it does state in the sleave that you cannot sell or rip songs and give them to other people.

It's also the same thing as being served legal papers. As soon as you touch it, your bound to comply with it.

Even if there is no CD cover or whatever, the Eula is on the CD. And as long as it is, there is no court that will take your side on the situation.Unless the agreement itself is misleading or unlawful.

When you buy something, you know that you are in a agreement if there is a agreement on there.

If you don't agree with it, then return it. Just like it says.

I work as a contract support specialist for a very large internet company. You can take my word on this

#31

Quote:Even if there is no CD cover or whatever, the Eula is on the CD. And as long as it is, there is no court that will take your side on the situation.Unless the agreement itself is misleading or unlawful.

I'm not broaching the subject of egregious contracts (e.g., a EULA that says I must give up my firstborn if I agree).

The EULA very well may be on the CD, but so what? An unsigned contract is not legally binding, a EULA that has not been agreed to is not legally binding either. The shrink-wrap license may hold up in court, but if there's no shrink-wrap or its equivalent (I'll have to see if I can dig up those old paper sleeves b/c I can't remember) then there's nothing to hold up in court.

Quote:If you don't agree with it, then return it. Just like it says.

This goes to the heart of the matter: when you buy a shrink-wrapped CD, you've agreed to nothing except to exchange $x for a shrink-wrapped CD; when you buy a game with a EULA and no shrink-wrap license you've agreed to nothing except to exchange $x for a game you can only install if you accept its EULA (actually not even that much).

#32 I would love to go back and forth with you on this all night but the fact is that I am right and you are not.

I'm not being a jerk. it is the way it is. I deal with over four hundred active contrats and I can tell you that what I am saying is the trurth.

Look up media content laws if you don't believe me

#33 You're not going to convince me that a contract that doesn't exist can be binding. I've already explained the "exceptions" above so I don't really have anything else to add.

I don't think you're being a jerk.

#34 I quite clearly recall recall a case that made it to the federal appeals level (6th circuit, if IIRC) about a website EULA that could be bypassed without agreement due to a bug in the website's coding.

It was found that it wasn't binding on those customers that had navigated around it.

Take that as you will - there have been several rulings on both sides of the issue since. The courts are can be fairly inconsistent on the subject of click wrap and shrink wrap EULAs.

#35 What's great is all the (mostly windows installer type apps) apps that present the GPL to you upon installing.

You don't have to agree to the GPL (And you can't put extra restrictions on GPL apps) to use a GPL application, so there's no EULA whatsoever on them.

(It's only when you have the source code to the app that it kicks in, or rather when you distribute your changes, which is why you obviously can't use GPLed code in Torque based games.)

#36 Umm, in the UK as part of the 1987 Consumer Protection Act :
'You cannot prepare legal terms and conditions which contravene this act, or try to impose your own rules.'

So I'm held to an EULA that I have never seen and even the retailer probably wont know what it is?

Oh, and at least in the UK, when I buy software from a shop, I enter into a contract with the retailer for him to supply me with xxxxx item, unless the retailer specifies explicitly that there are licencing issues etc, how can I be bound?

And further the The Sale of Goods Act 1979 (as amended) states :
'Satisfactory quality' covers minor and cosmetic defects as well as substantial problems. It also means that products must last a reasonable time. But it does not give you any rights if a fault was obvious or pointed out to you at point of sale.

'As described' refers to any advertisement or verbal description made by the trader.

'Fit for purpose' covers not only the obvious purpose of an item but any purpose you queried and were given assurances about by the trader.

If something you buy from a trader does not meet these conditions, you are entitled to a full refund if you return the goods soon after purchase. Otherwise you are first and foremost entitled to have the goods repaired or replaced.

If these remedies are inappropriate, then you are entitled to a suitable price reduction, or to return the goods and get a refund (reduced to take account of any wear and tear).

So, in theory, I am able to get a refund on Tribes : Vengence (good job I didnt bother with it). There was a patch being worked on to make it work properly, and they are not going to release it, so I should be entitled to a refund. But as Microsoft products are obviously flawed I'm not (and yes, I'm being facetious now :-)

I think I'll retreat now (Ducks under table).

#37 Mark,

I believe the 1987 Consumer Protection Act for UK does not cover SW. It covers many things including:

Quote:
primary agricultural and horticultural products, clothing, medicines, DIY tools and equipment, household goods, food and drink, nursery goods, motor vehicles and chemicals and pesticides

Are you sure SW is in the scope of that law?

#38 AFAIK it does not specifically include or otherwise software. But good luck in trying to do anything about it. However, the media the software is supplied on is covered.

It is the same as a product warranty can be up to six years regardless of what the manufacturer may say, of course you will have to take them to court to do anything about it. It can be done though, and people have taken suppliers and manufacturers to court and won in cases involving washing machines a year and more out the stated warranty.

This would be interesting with an HD for example, which has a stated MTBF (mean time before failure). Five years down the line, if you have used it for less time than the mtbf indicates you can legitimately claim it has not lasted as long as it can be expected to.