EULAs and contracts [LWN.net]

EULAs and contracts

Posted Feb 7, 2006 7:36 UTC (Tue) by giraffedata (subscriber, #1954)
In reply to: Don't expect any patches from the students in Bolzano by Ross
Parent article: Linux in Italian schools - five months later

I have a small correction. An EULA isn't just basically a contract -- it's completely a contract. The "A" stands for "agreement," which is a legal synonym of "contract." Clicking "I agree" is as good a manifestation of assent as various other ways people form contracts, including signing a piece of paper. I'm not aware that EULAs are especially unenforceable, or ever were.

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EULAs and contracts

Posted Feb 9, 2006 16:11 UTC (Thu) by arcticwolf (guest, #8341) [Link]

It very much depends on where you're from, actually. In some countries, you do need to accept the license to be able to (legally) use the software your purchased (the USA is one of these, AFAIK), but it's not true everywhere - there are also countries where *purchasing* the software already gives you the right to use it, so the EULA is basically meaningless. I know Germany is in the latter category, and I wouldn't be surprised if other European countries were as well, so it might well be that the same thing's true in Italy.

On a side note, it arguably makes more sense that way, too. When I pay a thousand bucks for Photoshop, then I *should* have paid for the right to use the program - not just for a few (physical) CDs and a printed manual. I shouldn't be required to enter into another contract with Adobe just to use a piece of software I paid the dealer a grand for already.

EULAs and contracts

Posted Feb 9, 2006 17:35 UTC (Thu) by giraffedata (subscriber, #1954) [Link]

In some countries, you do need to accept the license to be able to (legally) use the software

Careful here. You mean you have to have a license, with means you have to accept the EULA. (You accept the license too, but that is of no consequence since it doesn't commit you to anything). The EULA offers you a copyright license in exchange for various promises. When you accept that offer, you have the copyright license and are committed to make good on those promises. If you don't accept the EULA, you have no obligations, but also don't have a copyright license, and thus can't copy the software.

I haven't heard of any places where you need a license to use software. The copyright license covers only copying it. I know some publishers write the EULA as if you need a copyright license to copy the CD onto your disk or make a backup copy, but from what I've read, the jury in the US is still out on that, because it might also be fair use of the one copy the publisher gave you.

I can believe that the courts have already decided that issue in Germany and elsewhere, making these EULAs superfluous.

This is getting fairly academic, though, because if Adobe can't trade you a copyright license for those promises about how you'll use the software, Adobe can just change the wording and instead of having a license agreement, have a purchase contract. To get that CD, you have to pay $1000 plus promise to use it a certain way. There was a time when the license agreement was thought to be the easiest way to do a store-shelf transaction, but now that shrink-wrap contracts are enforceable in the US, a straight purchase contract would be as easy.

EULAs and contracts

Posted Feb 10, 2006 19:53 UTC (Fri) by quintesse (subscriber, #14569) [Link]

You say "I haven't heard of any places where you need a license to use software. The copyright license covers only copying it" which is true, but you also say "The EULA offers you a copyright license in exchange for various promises. When you accept that offer, you have the copyright license and are committed to make good on those promises" which basically means that they are affecting how you can use their product.

Which gets me to the other thing you say "If you don't accept the EULA, you have no obligations, but also don't have a copyright license, and thus can't copy the software" because it does not only affect your right to copy but a host of other things that are commonly found in EULAs, like Microsoft saying that you MUST upgrade if they tell you to or you lose the right to use the product.

So we get back to what I understood is the norm in several european countries:

- the first is that you can not add restraints or additional requirements AFTER having bought the product. You are only bound to the requirements known to you at the moment of the sale. In that case a judge would most likely agree with the buyer ignoring an EULA.

- the second is that sometimes EULAs require you to make promises which go against certain rights given to the buyer by local laws and in that case local law trumps EULAs. The interesting thing would be to see if a judge would agree with a buyer selectively ignoring parts of an EULA or that you can only accept or reject the whole of it.

Of course IANAL, just relating what I think I heard a vague friend of a cousin of mine say at a party where we were all lying stoned around the swimming pool. But it could be true though :-)