305: Self-serving Small Print

[Douglas Heaven]

Self-serving Small Print

Odds are pretty good you don't bother to read every EULA you agree to, and odds are even better that someone is counting on that fact.

Read Full Article

 

[Frybird]

Well, that's a really complicated topic.

After all, it's not only about whether or not one cares for the EULA presented to him, but how much he wants to use the service/game/product that's lurking behind the "agree" button.

If i'd decline every EULA that i'd slightly would disagree with, i hardly could play any games. It's not like i can go and argue with whoever set the agreement up because in the end, i'm not a customer (yet) and even if i were, that person/group/company still wouldn't want to bother negotiating a new agreement that is at least satisfactory to me.

In the end, for the customer, those things are about either losing or not winning. There is just nothing to gain because, in the end, me not agreeing with a Term of a EULA on such a widespread product is ultimately pointless.

 

[Petromir]

I think a judge ruling on this could be a disastor. What this needs is staute, decided by elected goverments, in consult with the industry and consuemers.

Define the basics whats reasonable under a EULA, produce an ombuudsman to regulate things, and provide a court of arbritration before things go to full on courts. Define what rights each side has, and in turn what responisibilities.

Make it clearer on boxes that it is a license you are buying, not the item.

 

[Lord_Jaroh]

I think a judge ruling on this could be a disastor. What this needs is staute, decided by elected goverments, in consult with the industry and consuemers.

Define the basics whats reasonable under a EULA, produce an ombuudsman to regulate things, and provide a court of arbritration before things go to full on courts. Define what rights each side has, and in turn what responisibilities.

Make it clearer on boxes that it is a license you are buying, not the item.

I think making it clearer as to what the license allows would also help. Having consumers be trampled upon by supposed rights they are not allowed is silly. I believe it should be a physical object rather than a license myself, especially allowing me to return the damned thing if it does not work, or is a terrible product, first and foremost.

 

[DonTsetsi]

And it's getting worse. How long until PCs come with agreements not to install a different OS?

 

[Petromir]

I think a judge ruling on this could be a disastor. What this needs is staute, decided by elected goverments, in consult with the industry and consuemers.

Define the basics whats reasonable under a EULA, produce an ombuudsman to regulate things, and provide a court of arbritration before things go to full on courts. Define what rights each side has, and in turn what responisibilities.

Make it clearer on boxes that it is a license you are buying, not the item.

I think making it clearer as to what the license allows would also help. Having consumers be trampled upon by supposed rights they are not allowed is silly. I believe it should be a physical object rather than a license myself, especially allowing me to return the damned thing if it does not work, or is a terrible product, first and foremost.

In the case of software it gets tricky here, the part that is worth anything really isnt a physical object, and its difficult to find a way of proving it doesnt work, and that you are actually returning it.

To solve the backup issue the regualtor should offer guarentees of all replacement media, pref free, if not at cost. On the does not work, I cant see that many ways to prove it without really bad DRM.

 

[Plinglebob]

Make it clearer on boxes that it is a license you are buying, not the item.

I think making it clearer as to what the license allows would also help. Having consumers be trampled upon by supposed rights they are not allowed is silly. I believe it should be a physical object rather than a license myself, especially allowing me to return the damned thing if it does not work, or is a terrible product, first and foremost.

This is the defining issue in this argument, but its never really addressed unless its part of a discussion about the EULA. As I don't have the the knowledge to research the topic myself, an article on how games (and other software) ended up being licenses to use instead of physical products would be really interesting.

And it's getting worse. How long until PCs come with agreements not to install a different OS?

While this may end up being the case with store bought PCs or specifically enclosed systems(like Netbooks or Macs), it would be close to impossible for it to happen to PCs generally because pretty much anybody with a working brain and a set of instructions can build a working PC from individual components. The only way it would is for Windows and Apple to stop selling their OS's as single items and even then, there's always Linux.

 

[CM156_v1legacy]

Is anyone really shocked at license agreement lengths anymore?

What?s one of the first rules of law? Get everything in writing.

That being said, I do wish they could condense it down to ?Don?t pirate stuff?, or in the case of online games ?Don?t sue us if our servers go down?

 

[bdcjacko]

How many people actually go out of their way to make their ps3 into a linux machine. Isn't it easier to just get a real computer, install linux, and then sit smugly knowing that you are better than those knuckle dragging counsel players*?


*I was just making a joke, I barely even know what linux is, it is a short tailed endangered cat from Portugal right?

 

[ForsakenUK]

wouldn't installing another OS stop you from connecting to PSN anyway?

seeing as it would overwrite the current one etc? or would the OS install onto a partition?

 

[Jhereg42]

Here is another problem with the present system.

You buy a PC game for $50 at your local retailer. Go home, start to load it. Read the EULA, and just cannot agree to the draconian idea that you don't own your disks that you clearly now own. So, since you cannot accept the EULA you responsibly box it back up and try to return it. Only, retailers are very nasty about returning opened PC games. They simply assume you pirated it and want to return it now for a full refund. (a lot of companies will not accept a PC game with the wrap opened.) Correct me if I am wrong, but I believe that the same is true with digital distribution like Steam.

Whoops, now you are up the creek. You paid for your product, do not accept their contract that is only available for examination AFTER you've paid for it, and you cannot return it.

I think that is why EULAs are going to be shot down by courts in the end. They force the user to agree to terms after the license has been purchased, not before. There is a understanding on the part of the buyer that they are purchasing a finished product at retail, not a license to operate another person's product.

 

[de5gravity]

The thought crossed my mind a couple of times, but I always dismissed it and now I'm kind of worried about it: if Valve decides one day to get out of the distribution business (for whatever reason, I'm not arguing whether or not it's remotely realistic), do they have all the right in the world to pretty much stop us from accessing the games we paid for?
That's a very scary thought. Or maybe we should start viewing Steam as some kind of Netflix: you don't really own the content, it's there as long as we are.

 

[beema]

Here is another problem with the present system.

You buy a PC game for $50 at your local retailer. Go home, start to load it. Read the EULA, and just cannot agree to the draconian idea that you don't own your disks that you clearly now own. So, since you cannot accept the EULA you responsibly box it back up and try to return it. Only, retailers are very nasty about returning opened PC games. They simply assume you pirated it and want to return it now for a full refund. (a lot of companies will not accept a PC game with the wrap opened.) Correct me if I am wrong, but I believe that the same is true with digital distribution like Steam.

Whoops, now you are up the creek. You paid for your product, do not accept their contract that is only available for examination AFTER you've paid for it, and you cannot return it.

I think that is why EULAs are going to be shot down by courts in the end. They force the user to agree to terms after the license has been purchased, not before. There is a understanding on the part of the buyer that they are purchasing a finished product at retail, not a license to operate another person's product.

This is the same point I was going to make.
Simply put, by the time you are asked to agree to a EULA, you have generally already purchased the item/service. It's completely absurd. If you actually don't want to agree with it, you are faced with a return, which may or may not even be possible (sometimes places will do exchange only, but that doesn't help since it's the same EULA).

I really don't like that EULA's are increasingly stripping away more and more user rights. Because of these agreements we no longer own half of the things we buy.

It's akin to buying a house and having to agree that the home-builder can take it back, without compensating you, whenever they want. Or that the home-builder can come by one day and knock down your bedroom wall because they feel like it.
The entire concept is completely one-sided and infuriating.
Don't some EULA's imply that, by purchasing the product, you have already agreed to their terms? Before even reading anything?

Yes, it is our faults for continually accepting them. When you examine the way they are presented, it's hard to place the blame on consumers though.
The entire system is contrived so that there is no reasonable way for the consumer to protest. The agreements are long and worded in legalese, usually presented at a time when you do not have the time/desire to read through them, and if you don't like one aspect of them, you technically cannot use the product whatsoever. There is no negotiation, no leeway. Their way or get fucked.

Everyone loves Steam, but as the paranoid guy in me keeps saying:
At any time, Steam could decide to deny you access to all your games, and there is NOTHING you could do about it. You are renting them. You don't own anything.

 

[Delusibeta]

Here is another problem with the present system.

You buy a PC game for $50 at your local retailer. Go home, start to load it. Read the EULA, and just cannot agree to the draconian idea that you don't own your disks that you clearly now own. So, since you cannot accept the EULA you responsibly box it back up and try to return it. Only, retailers are very nasty about returning opened PC games. They simply assume you pirated it and want to return it now for a full refund. (a lot of companies will not accept a PC game with the wrap opened.) Correct me if I am wrong, but I believe that the same is true with digital distribution like Steam.

Whoops, now you are up the creek. You paid for your product, do not accept their contract that is only available for examination AFTER you've paid for it, and you cannot return it.

I think that is why EULAs are going to be shot down by courts in the end. They force the user to agree to terms after the license has been purchased, not before. There is a understanding on the part of the buyer that they are purchasing a finished product at retail, not a license to operate another person's product.

And the best part is that Activision has introduced similar EULAs to their console games that are auto-accepted as soon as you put the disc in the drive. (Check the manuals if you don't believe me)

 

[Worgen]

I maintain that the end user license agreement has no real sway and doesnt matter at all, really if you read them for pc games they specifically state that if you do not agree with the elua then you can return the game for a refund but when farcry 2 was on sale on steam and I discovered that it had drm after purchasing it I couldnt get that refund from either steam or ubisoft, ubisoft said the distributer was responsible for the refund and steam said there were no refunds, clearly against the terms of the elua for the game so therefor they dont matter at all

 

[Griffolion]

Like the article said, we tacitly agree to these conditions, i'm guilty of that like everyone else. If we ALL stopped buying games in demand of fairer EULA's etc then I think stuff will change, but I doubt that will ever happen.

 

[Emergent]

I maintain that the end user license agreement has no real sway and doesnt matter at all, really if you read them for pc games they specifically state that if you do not agree with the elua then you can return the game for a refund but when farcry 2 was on sale on steam and I discovered that it had drm after purchasing it I couldnt get that refund from either steam or ubisoft, ubisoft said the distributer was responsible for the refund and steam said there were no refunds, clearly against the terms of the elua for the game so therefor they dont matter at all

This. This should be said more. EULA's are literally meaningless.

If an empowered employee (i.e. one given written permission to make binding decisions on behalf of the corporation) of the publisher wants to stand on hand in the real world with two witnesses and a Notary Public at the point of purchase (how would we do that online, again?) so that we can sign a legally binding agreement before I give anyone any money, we'll talk. Until then, gtfo please, EULA's are not legal documents.

 

[Irridium]

Here is another problem with the present system.

You buy a PC game for $50 at your local retailer. Go home, start to load it. Read the EULA, and just cannot agree to the draconian idea that you don't own your disks that you clearly now own. So, since you cannot accept the EULA you responsibly box it back up and try to return it. Only, retailers are very nasty about returning opened PC games. They simply assume you pirated it and want to return it now for a full refund. (a lot of companies will not accept a PC game with the wrap opened.) Correct me if I am wrong, but I believe that the same is true with digital distribution like Steam.

Whoops, now you are up the creek. You paid for your product, do not accept their contract that is only available for examination AFTER you've paid for it, and you cannot return it.

I think that is why EULAs are going to be shot down by courts in the end. They force the user to agree to terms after the license has been purchased, not before. There is a understanding on the part of the buyer that they are purchasing a finished product at retail, not a license to operate another person's product.

Yes, this.

Frankly, I'm both amazed and appalled that EULA's have been going along as much as they have.

EULA's are completely bullshit. For PC games, you have to buy it, take it home, and start installing to see it. At that point you can either agree to this anti-consumer agreement, or not play a game and be out $50.

For console games, you agree to it right when you buy it, without seeing it at all.

Try this with any other industry, and that shit would be shot down damn near instantly.

 

[JaredXE]

I never accept EULAs. Yet I still play games. How? My 'cat' accidentally clicks the accept button, I never accepted it, I didn't even know one popped up. Oh well, guess it can't be proven that I accepted the license.

 

[JDKJ]

I maintain that the end user license agreement has no real sway and doesnt matter at all, really if you read them for pc games they specifically state that if you do not agree with the elua then you can return the game for a refund but when farcry 2 was on sale on steam and I discovered that it had drm after purchasing it I couldnt get that refund from either steam or ubisoft, ubisoft said the distributer was responsible for the refund and steam said there were no refunds, clearly against the terms of the elua for the game so therefor they dont matter at all

This. This should be said more. EULA's are literally meaningless.

If an empowered employee (i.e. one given written permission to make binding decisions on behalf of the corporation) of the publisher wants to stand on hand in the real world with two witnesses and a Notary Public at the point of purchase (how would we do that online, again?) so that we can sign a legally binding agreement before I give anyone any money, we'll talk. Until then, gtfo please, EULA's are not legal documents.

You may think that "EULAs are not legal documents," but the courts of a number of different jurisdiction in the United States, as represented by the sampling of opinions listed immediately below, have considered the issue and concluded that EULAs are binding and enforcable.

See ProCD, Inc., v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996) (upholding the validity and enforceability of a shrink-wrapped EULA).

See Hill v. Gateway2000, Inc., 105 F.3d 1147, 1149 (7th Cir. 1997) (holding that contract terms inside a box of software were binding on consumer who subsequently used it).

See Mudd-Lyman Sales and Serv. Corp v. UPS, Inc., 236 F.Supp. 907 (N.D. Ill. 2002) (ruling that plaintiff accepted terms of license by breaking shrink-wrap seal and by its on-screen acceptance of terms of software license agreement).

See M.A. Mortenson Co. v. Timberline Software Corp., 140 Wn.2d 568 (Supreme Court of Washington, 2000) (holding that the licensing agreement set forth in the software packaging and instruction manuals was part of a valid contract).

See Arizona Cartridge Remanufacturers Ass'n v. Lexmark Int'l, Inc., 421 F.3d 981 (9th Cir. 2005) (upholding the validity of a shrink-wrapped license because the box provided clear notice of the terms and the box had been opened).

See Brower v. Gateway 2000, Inc., 676 N.Y.S.2d 569 (New York Supreme Ct. App. Div. [Aug.] 1998) (holding that a shrink-wrapped contract was formed when the plaintiffs retained the software for longer than the 30 day "approve or return" period).

See Rogers v. Dell Computer Corp., 2005 WL 1519233 (Okla. June 28, 2005) (holding that a contract was formed when a computer was ordered by telephone and terms contained in box were disregarded).

See Levy v. Gateway 2000, 1997 WL 823611 (N.Y. Sup. Ct. 1997) (holding that consumer assented to EULA by keeping the product).

See I-Systems, Inc. v. Softwares, Inc., 2004 U.S. Dist. LEXIS 6001 (D. Minn. Mar. 29, 2004) (denying summary judgment in part by upholding I-Systems' click-through and shrink-wrap licenses).

See Net2Phone, Inc. v. State ex rel Consumer Cause, Inc., 109Cal. App. 4th 583 (Cal. App. June 9, 2003) (implicitly upholding Net2Phone's forum selection clause, even though the user agreement was formed only through a hyper-linked contract with the language "by using the site or materials, you agree . . . .").

See Lively v IJAM, Inc., 2005 OK Civ. App. 29 (2005) (holding that an enforceable contract was formed when a computer was ordered by telephone and terms contained in box were disregarded).

See Rinaldi v. Iomega, 1999 WL 1442014 (Del. Super. Sept. 3, 1999) (enforcing a disclaimer of warranties contained inside product packaging when there was a refund opportunity).

See Westendorf v. Gateway 2000, Inc., 2000 WL 307369 (Del. Ch. Ct., March 16, 2000) (enforcing licensing agreement contained in the packaging even though the computer was paid for by someone else).

See Vernor v. Autodesk, No. 09-35969. DC No. 2:07-cv-01189-RAJ (2010) (concluding that a shrink-wrapped EULA created a license rather than a sale of the underlying software).