Consumer group slams 'unfair' software licenses

About time....

as has previously been mentioned on the Register how can you purchase a license for software without knowing what the terms are (i.e. the EULA).

Hopefully, this will result in clearer guidelines for licenses and software sales.

Suggest that if a EULA is more than 1 A4 sheet of 12 pt Times New Roman at 1.5 line spacing then the drafting lawyers should automatically face £1m fines or the product can not be sold in the UK. That should focus their attention!

Coat at ready...

About bloody time is all I can say!

I bought a PDA/TomTom bundle several years back and went to sell it on eBay but TomTom told them to take it down! Assuming I'm not illegally copying the software or anything like that, I don't see why I can't resell it like I can resell a CD.

They are dodgey..

Just read any SLA and you will see they have a point.....

"If the sky falls, the world explodes and you can prove it's a direct result of a fault in our software, don't come running to us".

Unless the software is free, how can this be fair.

Let's not forget...

The "You can't transfer this license to another computer!"

OR

Sorry, we don't recognize your legitimate license key. Er WTF?

I have recently concluded that between the poor state of computer software these days and the fact that I am sick and tired of NOT being able to install my software on my machines. I am going to start pirating software...

If you're not going to let me use the software and hardware I legally buy, than I am not going to abide by your "legal". If you have a problem, please talk to my lawyers...

Horace Smith and Daniel B. Wesson

@Pete

Good show.

Simple solution.

If the problem is that the EULA isn't visible at point of purchase, mandate that all restrictive[*] Ts&Cs must be displayed clearly and legibly (no small print) on the outside of the package for off-the-shelf consumer products. This would either mean impractically large packaging, or shorter, simpler EULAs.

Anyone wanting to have a more complicated agreement should be forced into contract negotiations.

End result? Three clause SLAs, with each clause short and to-the-point. Most likely, the agreements would look like this.

Clause 1: Number of licenses and commercial vs non-commercial use.

Clause 2: Refunds/returns policy.

Clause 3: Limitation of liabilty.

@Pete

I think I can summarise even more succinctly - "Pay up and feck off!"

Licences might not be quite what you think...

A licence is what enables you to use a piece of software. If you break the terms of the licence, you may no longer use it. This works both ways: if you no longer use it, you may break the terms of the licence (subject to law, copyright, etc.)

So while it may read that you can't transfer it to another computer, you can still uninstall it from your current computer, and then you're not bound by that instance of the licence any more. Fortunately, when you install it on another computer, the software is usually nice enough to offer you a nice, fresh, new licence for you to use.

IANAL, of course.

No EULA can be considered legal

Simply state that no post payment licence terms are valid (as should be the legal position anyway). The feeding frenzy of people claiming on microsoft for consequential damages would make the companies realise they have been getting away with murder for years.

If Ford build a car that crashes, they get taken to the cleaners in court. Microsoft should be no different.

The new, Plain English Microsoft EULA

You want to use the software on WHO'S computer?

That's right. MICROSOFT's computer.

Why can't I sell it

I've always thought it was odd that I can't sell software after I no longer use it. Is there another product I can't sell once I am finished with it?

I am glad that someone is finally looking at these one sided contracts. I've read many times that a contract that is overly weighted to benefit on party is not a valid contract.

This will never be looked at in the USA because the software lobbyist's pay a lot of money to the government officials.

Good to hear this and it is about time!!!!!!!!!!!!!!!!!!!!!!

And...

And at least here in the US stores, the return policies do not help much, if I remember correctly... Software (and a bunch of other stuff like media) can only be returned if unopened. So, if you don't agree with the EULA, you'd better not open that package. Oh, wait...

Not that is matters to me, yay!

In the Greatest of Democracies........

You, the peasant, are the willing contributor to the coffers of the corporate feudal lords.

1) You WILL follow the rules or bend over and take it like a man.

2) You WILL like, promote and use exactly what you are forced to use in the exact condition it was forced upon you.

3) You WILL like it, embrace it and perpetuate it at the risk of legal action which you can not afford to fight.

4) You WILL NOT complain about, attempt to oppose or otherwise denegrate said product/institution at risk of prosecution for treason.

In the event that you fail/refuse to heed the above, men in dark, ill-fitting suits and Gargoyles (TM) will appear at your home/place of work/local brothel or wherever you may be and pummel you into conformity......and you're gonna like it.

Thank you for attempting to use OUR product.

@Sniper

You may want to retract that statement.

A license is only needed to make a copy disallowed by copyright. The owner of the copyright or the distrubutor (through their copyright license) do not need a license.

Now, under the Berne agreement, any copy that is an inherent part of USING the item is not a copyright controlled copy. So that's why it is at base possible to view a DVD, which requires a copy of the datastream to be made and held without needing a license.

Now even if that weren't the case, who is doing the copying of software? Not you. The program doing it is the installer. It decides what you copy when how and where. That is created by either the distributor or the original copyright holder who, as I've said before, don't need a license.

You can tell this because if it were you installing, you'd be able to tell it where when and how because it would be YOU doing the copying. Additionally, since the game didn't need copying when playing on an XBox or PS2, why does it need to make ANY copy? So you don't have the choice of NOT copying. So you can't be the one copying, else you'd have the choice. That the game can still be played without installation on a PS2 shows that the copy isn't REQUIRED technically.

The EULA gains its application purely because a judge screwed up and said that installing a game is a copy. Well, without a copy to the hard drive, how do you use the product?

Please also note that some rights are taken away that you have even if you don't agree to the "license". As such it is a contract. And, under UK law, you have 28 days non binding cooling off period.

So where's my cooling off period?

EULA's

On the very very rare times I have managed to struggle through the whole EULA (which are of course in minute print in minute windows that you cannot expand) I often come across something which says that I can't (according to the terms of use) use the product for the purpose that I really want it for.

The whole thing is very much like buying a packet of cigarettes which has written on it "Not to be inhaled when lit". You ignore it at your peril but if you want it to do the job just light up and press next LOL.

@pete, and more.

@pete,

Oh my god, so true. I haven't laughed that hard in ages, and the reason for that is I actually READ the windows licence agreeement once (the whole thing!) to settle an argument.

You've managed to sum X many pages of bollocks up in about 10 lines!

(text not coke I hasten to add, otherwise we'd be here all night! :D )

To be fair, it's about time that this happened though. I have signed several 'contracts' and 'terms and conditions' recently that I know to be in breach of at least my statutory (possibly my human) rights.

Companies seem to feel that writing on paper, and making you sign sh*t like that makes it legal. Nope, sorry guys.

Hound-Dog

"Microsoft is committed to dealing fairly with consumers!"

Bill is a lawyer from a family of Lawyers why would anyone expect them to deal fairly,

We will soon be blackmailed into buying "Vista" which we don't want and don't need, it is not going to do any of our work any better than XP. so thanks Bill for shafting us once again.

Agree or waste your money...

I bought a game a couple of years ago with no mention of the EULA on the box, however I knew there would be one. I installed the product, went to run it and then it said it would only run once I installed StarForce copy protection. AAAARGH! I went back and read the EULA and there was no mention of StarForce as part of the 'agreement', so I asked UBISOFT for a version where I was not obliged to install SuckForce. Guess what.... no answer, no refund from the shop (it was opened, duh!!!) and virtually no-one that knows the law well enough to help me with my £30 game...

After-purchase 'licences' void anyway?

Unless something has drastically changed in English Statute law, conditions added after the contract is formed (which is when the buyer & seller agree the transaction) are specifically excluded and void.

I believe the law gives examples such as restictive terms on the back of a delivery note, but it would apply to anything included with the item rather than known before the purchase.

There was only one very specific exclusion which was for bus & train tickets that have details on the back.

Your contract & agreement is solely with the seller. The only rights the manufacturer has are re. intellectual property - you can't make & sell copies etc., other than that you can do what you like.

As it stands, software makers exactly the same rights to tell you how you use their products as a furniture maker has to tell you what you can put on one of their tables after you've bought it...

Reminds me of some sales T&Cs I saw this week...

.... which essentially said "any changes you made to the Terms and Conditions of your order, written or otherwise, agreed by us or not, are null and void - and only this copy of the T&Cs you **received with THIS product** shall apply" (paraphrased, of course). All this from a very big, well known, online memory company (with generally very good service, I may add - but this does make me worry).

No reporting of product performance

My favorite is the .Net EULA which prohibits benchmarking the software and reporting on the results.

I am afraid that requirements of EULA statement up front will translate to a website link on the box. Even more unlikely that Joe User will take the time to go home, pull up the website, if he remembers it, read the EULA, go back to the store and purchase the item.

And what about ordering online? I do not recall any online retailer which posts EULA information on its software products.

Paris, because there is no easy way to know what you are getting into there, either.

The Windows OEM EULA

only appears to exist in software form. It's apparently unavailable from the microsoft websites, you can only get the boxed EULA, and it never seems to come on paper with a pre-built computer. Even so, it includes a return clause, which states that if you disagree with any of the clauses, you should return it to the reseller for refund, or if there is a problem with that return it to microsoft.

Of course, returning Windows is notoriously difficult. The retailer denies it having anything to do with them and the computer manufacturer tells you that you can't return the OS without the computer because "what would you return? You've not got any discs", and that no, you can't buy the same computer with no/a different OS, that would be silly. And so you go to Microsoft, who just say talk to the retailer, OEM's nothing to do with us...

I'm fairly sure that a contract broken by one side is voided, but then, I'm not a Lawyer.

Scope

To misquote Sam Goldwyn, EULAs aren't worth the paper they're written on.

For online ordering, the distance selling regulations apply so you can cancel within 7 days of receiving the goods with no questions asked and get a full refund within 30 days. If the retailer wants the goods returned, they have to pay the postage. Dabs.com got caught out by these regulations last year: http://www.oft.gov.uk/news/press/2007/96-07

However, it's worth remembering that consumer legislation (the sale of goods act et al) only applies to consumers and not if someone buys something in the course of business. If I buy a copy of MS Office from PC World for my own use, the legislation applies. If my employer buys a copy for me to use, it doesn't.

Soft product licence

Here what it should look like for software, music, movie (but it won;t)

1. If you are not satisfy please return the product, (opened or not) to the place of purchase for a full refund.

2. Any problems to your computer resulting the use/installation of our software will be fixed at our cost

3. This software will perform as described on the box and file created with it are compatible with older version and future version of the software

4. The software can be installed on any computer you own

5. The software is free from any DRM, copy protection of any other kind of anti-consumer mesures,

6. We will fix any bug from our software as soon a notify and a not cost to you

The Software Vendor License Agreement

The Software Vendor License Agreement - a counter-agreement for those shrink-wrap or "clickwrap" EULAs (End User License Agreements) software companies make you agree to. Highly recommended reading:

http://cexx.org/svla.htm

Fix the according laws.

That worked in several countries. IANAL, btw., but I know that e.g. in France and Germany, approx. half of Microsoft's EULAs for Windows and Office is void because it contradicts existing laws and fair practice rulings. The non-reselling paragraph in particular has been successfully defeated in the courts (reasoning given was that once you buy a license, it is yours to do with as you like, which includes selling it to a third party. If the supplier doesn't like this, it shouldn't sell the product in the first place).

Similar rulings several years ago have led to Adobe changing their licensing terms so you can install one license on several computers and they'll accept your word that you won't abuse this goodwill.

@David Wiernicki: "Just out of curiosity, what unusable software did you successfully write that oh-so-biting post with?"

My guess is he was using some OpenSource bit of software, like e.g. Firefox.

@Ed

"@No EULA can be considered legal

Not in the US. Check your case law."

Correct me if I'm wrong, but the article refers to the UK, where, despite the US governments wishes to the contrary, US law (case law or otherwise) does not apply?

@Richard Drystall

Well we have a different case law not to draw on: even though the computers agreed access, accessing an unsecured WiFi must be agreed by the PEOPLE who owne each computer.

Also, note that I'm not saying that the program copied it: the program supplied by the distributor (the people who tell the developers they will use StarForce) copeid and therefore THE DISTRIBUTOR is making the copy. This would mean that in the Bill Gates email defense, the email program that Bill Gates used send the email yet, since the producer of the email program didn't decide what bill gates put IN the message, the MESSAGE is from Bill Gates (note that if the *message* wasn't the issue, then Bill does no work and no agreement is binding.Even a written message is "written by the pen". And we know a verbal agreement isn't worth the paper it's written on).

Just to add a little aside, I had a little epiphany with DVD licensing. The blurb says something like "this DVD and its contents are licensed for home use only...". Well, Im not the licensee for distribution, the distributor is the distribution licensee. So, doesn't this mean that if I decide to make a public performance, the DISTRIBUTOR has broken the terms of their license. The "license message" isn't from the seller and I only have a contractual relationship with the seller (the argument I used to get my Windows license refund: the EULA says that the seller will refund and if the seller didn't want to be bound by this, they could have not installed the software), so the license terms cannot apply to me.

Of course *copyright law* may say I cannot do this, but that's not what the unskipable blurb says, is it and you can waive rights under a contract, so it can be argued that by saying the distributor is licensed and they have replaced copyright law with the license law (which would make sense because DRM is a replacement of copyright law: it doesn't expire and remains illegal whether it is copyrighted or not to bypass). I could at least make Fox et al pay mucho dinero proving it and clear up who has what right at the same time. On their dime.

NOTE: The reason why I cannot accept XP or Vista is because the EULA tells me that MS have the right to add or remove what they like from my computer in the agreement. And even though I could say it isn't legally enforceable, the program is closed and written by MS too and IT decides what to do when installing updates. Unless I sue for MS deleting or adding stuff I didn't agree to, it gets done whether it's legally agreed to or not.

Never had a problrm with licences

I've never had a problem with software licences.

All the ones I've ever used say stuff to the effect that if you make and distribute copies, you must include a copy of the licence with the software; and some say that if you pass on copies, you must make arrangements for the recipients to get the Source Code from you. Which, since I only ever pass on copies of software in the form of a Source Code archive (which invariably contains the licence in a handy text file), I know I'm complying with.

Isn't that what they all say?

@BOB JOHNSON

> Is there another product I can't sell once I am finished with it?

Beer?

legalese

"the typical EULA is a dozen pages long and written in impenetrable legalese"

You must, of course, remember that the EULA is written by lawyers, and like all good Land Sharks, they do exactly what they are paid for. The software companies have paid a lots of money to some very clever people for these EULAs. If the companies had wanted them to be readable, then they would be very plain and simple. They are complex and impenetrable because that is what the software companies want.

The more complex the EULA is, then the more it will cost to fight against it in court. So less people will be able to afford to fight these so called contracts.

Paris, because.

Just because alright!!

Unfair Contracts

an EULA is a form of contract and in the UK cannot be unfair.

http://www.oft.gov.uk/advice_and_resources/resource_base/legal/unfair-terms/what-is-unfair

I am sure if you buy a bit of software and it does not do what it should, and you cannot get it replaced or refunded ( which retailers are oblidged to do by law if the disk is faulty) then a quick pettion to the small claim court will have your money back.

No problems with EULA here!

My Ubuntu 7.10 ISO didn't make me sign or agree to anything. All quirks and malfunctions gladly accepted with an emphasis on giving me freedom and in turn motivating me to actually give a toss about fixing it!