back to article Consumer group slams 'unfair' software licenses

Some of the world's biggest software companies are facing possible investigation by the UK's Office of Fair Trading because their licensing agreements are unfair. The UK's National Consumer Council (NCC) checked 25 products, including Microsoft Office for Mac 2004, Corel WordPerfect Office X3, Apple iLife, Adobe Photoshop, …


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  1. The Other Steve

    I laughed so hard...

    "Microsoft is committed to dealing fairly with consumers"

    ... a little bit of wee came out.

  2. Pete Silver badge

    if they did write the licenses in plain english ...

    ... they'd probably read something like this:

    You've just paid for our software, but

    - we make no guarantee that it will work

    - if it doesn't work, too bad. You're not getting your money back

    - we won't fix any bugs

    - you can't sell it, back it up, let anyone else use it, or use it for business purposes (even if you were told you could)

    - if the CD gets scratched, you'll have to buy another copy

    - if you change or upgrade your computer, you'll have to buy another copy

    - it could completely break any other software you're using, including other products from us.

    - it probably won't be compatible with the next version

    - you'll have to upgrade a load of other things (including mandatory "service packs" that will stop other, random, programs from working

    - the manual will be completely irrelevant and unintelligible

    - if your computer is more than 6 months old, it's run too slowly to be any use

    Now just press "I accept", close your eyes, cross your fingers and hope.

    Have a nice day

  3. James

    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...

  4. Neil Docherty
    Thumb Up

    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.

  5. Anonymous Coward

    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.

  6. Jason The Saj

    Let's not forget...

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


    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

  7. Anonymous Coward
    Thumb Up


    Good show.

  8. Anonymous Coward

    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.

  9. Richie M

    @ The Other Steve

    LMAO :-D

    Seriously though, I think they should be forced to show return/refund information if you press the "I Disagree" button!

  10. Red Bren


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

  11. Anonymous Coward
    Anonymous Coward


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

  12. JeffyPooh

    It doesn't matter...

    Because I can blog:

    More-or-less evens things up nicely.

  13. Someone

    BioShock DRM Fiasco

    The title says it all.

  14. N


    "Microsoft is committed to dealing fairly with consumers"

    yep I agree with that...

    Fairly indifferently or fairly arrogantly, or is it both?

  15. Morely Dotes

    This happened when?

    "Microsoft is committed to dealing fairly with consumers"

    Odd. In my roughly 2 decades of dealing with Microsoft as a consumer, I can't remember a single incidence of them treating me fairly.

  16. Snipper

    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.

  17. Anonymous Coward

    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.

  18. Ash

    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!!!!!!!!!!!!!!!!!!!!!!

  20. J


    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!

  21. Nick Woodson

    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.

  22. Mark


    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?

  23. Barry Rueger

    Copyright BS

    "if I remember correctly... Software (and a bunch of other stuff like media) can only be returned if unopened."

    I despise the signs at every store claiming that "due to copyright law" they will not accept returns. This is complete and utter nonsense and there is nothing in copyright law preventing them from accepting returns on software that doesn't work.

    If retailers were forced to accepts returns and provide refunds for every software item that doesn't work as advertised, doesn't work on a specifc computer, is too slow to use, has lousy technical support, or breaks something else, we would likely see overall quality jump pretty damned fast.

    As it stands now the end user is asked to drop $200, $300 or more for non-returnable disc with no promise whatsoever that it will actually do what's expected. Is it any surprise that tech savvy people choose to shop at Pirate Bay before laying out cold hard cash?

  24. Anonymous Coward
    Anonymous Coward

    Licenses for downloaded software

    Will they force people to read licenses and agree to them before downloading software purchased online?

    How will they get around the "Purchase order issued by purchasing department" not knowing whats fair agreeing to what the IT department have to obey?

  25. Anonymous Coward


    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.

  26. Matt

    over a barrel

    most retailers wont refund any software where the outer packaging has been opened... but to get to the EULA it requires the opening of the packet... so your damned if you do and damned if you dont!!! you buy software and dont agree, the only choice you have is to bin off the product and pay full price for something that you do agree with!

  27. Stone Fox

    @pete, and more.


    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.

  28. Beau


    "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.

  29. Ed

    @No EULA can be considered legal

    Not in the US. Check your case law.

  30. Matt

    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...

  31. Anonymous Coward

    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...

  32. Matt

    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).

  33. Alan W. Rateliff, II
    Paris Hilton

    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.

  34. Michael

    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.

  35. mh.


    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. got caught out by these regulations last year:

    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.

  36. Mectron

    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

  37. James Henstridge


    For something like that, your next step would be to file a case in the small claims court.

    If you feel they are breaking the law in a civil matter like this, then it is your responsibility to follow it up as the plaintiff.

  38. Anonymous Coward
    Anonymous Coward


    "Now even if that weren't the case, who is doing the copying of software? Not you. The program doing it is the installer."

    I thought (IANAL disclaimer), that as far as law was concerned, computer programs or mechanical devices didn't do things - only their end users. So for example, the rather famous comment by Mr Gates "The computer sent [the email]" is not legally valid - he sent the email. The installer doesn't make a copy, you - the user that directed the installer to run - did it.

  39. Celtic Ferret
    Thumb Up

    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:

  40. Ole Juul


    Any EULAs that I've seen are unrealistic to the point of being humour. In fact some are sheer poetry that no sane person would take seriously. Unfortunately some vendors take the joke too far.

    I've only once bought a Microsoft product. It was XP-home and it came preinstalled on a computer. I don't know what the software cost, (in fact I don't know what got into me) but it did make the hardware rather expensive and I'll certainly never do that again. There was no obvious EULA, but it turns out that to have the capabilities that one would expect on a modern computer, it would have been necessary to purchase additional software which would have made my project a complete economic disaster. The worst part was that when I tried to copy the OS on to another machine for some kids to use, it wouldn't let me! Rude pythonesque legalese is one thing, but when they start writing their EULAs right into the software's functionality, I stop laughing. I know Microsoft is not alone in this, but I don't like getting ripped off. So they had a good laugh on me... good for them, but obviously I won't be buying any of their products ever again.

    It's not just EULAs we have to get rid of. It's the ripoffs that go along with them.

  41. Paul Wilzbach

    @Ben Johnson

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

    Software EULAs have been an active topic in U.S courts. Unfortunately, the interpretations have been conflicting. The Second Circuit court said you own a copy of the software you bought, while the Ninth Curcuit Court confirmed you owned only the license to use it and that license may trump 'fair use'. In Adobe vs Softman a US District Court judge ruled consumers can resell unsed bundled software regardless of what the EULA stipulates.

  42. stizzleswick

    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.

  43. Anonymous Coward


    "@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?

  44. Mark
    Dead Vulture

    @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.

  45. A J Stiles

    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?

  46. Anonymous Coward


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


  47. James Condron


    yeah, toilet paper

  48. Peter Fielden-Weston
    Paris Hilton


    "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!!

  49. Steve

    Unfair Contracts

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

  50. Aaron Browne

    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!

  51. Karl Lattimer

    MS EULA says...

    MS EULA says you can get a refund if you refuse to accept the license...

    And it is prohibitively difficult to get a refund and in fact, if you contact microsoft about this on the email address they'll simply ignore your request.

  52. ImaGnuber

    @A J Stiles & Aaron Browne


    Microsoft users whine and weep and rage... and then continue to buy M'soft and related software products! I've reached the point where I've started thinking they deserve exactly what they get.

    Why should any of those companies change their EULAs when they know that 99% of their users are too stupid and lazy to go somewhere else?

  53. Jason Clery


    "and virtually no-one that knows the law well enough to help me with my £30 game"

    Google your local trading standards and complain to them about the retailer.

  54. Vaidotas Zemlys

    @ James Condron

    You CAN sell used toilet paper. The problem is to find a buyer:)

  55. The Other Steve
    Gates Horns

    This does not affect your statutory rights.

    Interestingly (and if IIRC from my law classes at school many moons ago) it is not possible for any contract to remove or modify a consumer's statutory rights as laid sown in the Sale Of Goods Act (SOGA) and the Sale Of Goods and Services Act (SOGASA) and possibly other legislation that I can't remember just at the moment.

    These include things like the ability to return goods and get a refund if they are defective or if they are "unfit for purpose" (e.g. you buy product X to fulfil function Y and it turns out not to be able to do so to your satisfaction). From the general tone of the comments on El Reg whenever the Beast Of Redmond is mentioned, I guess many folks feel that both of these conditions apply).

    Retailers in general try quite hard to avoid allowing consumers their rights (seemingly restrictive return policies, etc), and they mostly get away with it because consumers are generally ignorant of the relevant statute law, which is why we have Trading Standards and the OFT.

    There are also, as someone mentioned, rules governing how contracts can be structured, I can't remember what they are in any great detail, a google of "construction of contracts" with a UK filter should help the curious, but IIRC their must be something called "valid consideration". This is quite complicated, but basically means that contracts must provide something of worth to both parties in order to be valid, I think.

    I've no idea how this would apply to a EULA, but I can imagine it would do for at least a few clauses.

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

    Well remembered that man. In fact, ISTR that the actual judgement goes further than that and allows, under certain circumstances, for Ts&Cs to be merely 'available', e.g as long you can (at least in theory) get hold of a copy to read before you purchase, then they are valid. I haven't got a rail ticket handy, but I believe they have something like "issued under the terms of the conditions of carriage" written on them. The conditions of carriage are (in theory) available from the operator.

    I really can't remember the circumstances of the case, so I don't know if this could be applied to shrinkwrap licences on software.

    Either way, I'm pretty sure that an impartial UK legal beagle could render most of the MS EULA invalid with a bit of effort.

    But imagine the consequences if MS (et al) are made liable for defects, you think Office is expensive now ? Wait until you have to purchase it with the price of a perpetual liability insurance policy added.

    As an aside, I wonder how copyright law applies to the EULA itself ? I've worked for a number of ISVs who just cut 'n' pasted EULA.txt

  56. SPiT
    Gates Horns

    Law of contracts

    English law on contracts says some interesting things in relation to the process by which a consumer contract comes into being. This is especially awkward for the supplier for consumers rather than commercial purchasers.

    In particular,

    The contract terms are those which the parties reasonably believed were the terms when the contract was formed.

    The offer of variations on the contract after it has been formed may be rejected by the customer. The EULA is clearly such an offer and may be rejected. The contract with the supplier remains in force leaving an interesting situation. If you entered into a contract to by "Microsoft Office" then you have little come back except to reject the terms and ask for the contract to be cancelled (ie get your money back). If you went into a shop (PC World say) and asked to buy something for a specific purpose and the EULA is not suitable then the contract remains in force and they are required to provide something does meet your purpose. This is a whole new can of worms but the upshot is that the shop you buy from should be grateful if they get away with simply giving you your money back.

    On the issue of software not working. It is required to be of merchantable quality and no amount of statements in the EULA saying they do not warrant it is suitable for a particular purpose will get them out of this. Basically it must be of "merchantable quality" for carrying out the tasks they advertise it for. If their advertisements talk it up then they are making some quality statements about their software. The EULA cannot negate this.

    Unfortunately many of the nuances of the law in this area have simply never been tested in court mostly since if you apply legal pressure you will get your money back and that is the end of it. No industry wants their limited warranties tested in court since this might make consumers realise how invalid they are.

    I have numerous warranty cards for bits of equipment that provide a "free one year warranty repair" for manufacturing defects. The law gives me a lifetime warranty against manufacturing defects.

    From my point of view the key EULA restrictions that will stand up in court (probably) are the consequntial damages and licence transferability clauses.

  57. Chip Mefford

    I keep hearing about how MS EULAs

    aren't enforceable, legal, et al.

    However, I've never heard of one single case where a court of law has overturned any software eula.

    It's also true, that I haven't heard alot about MS pushing for enforcement very hard either, but folks can keep saying this stuff, but until someone actually hands MS their hat, and sends them home on this, it's all just noise.

  58. Chris Cheale

    sounds like X3

    I installed X3 before I'd heard about the StarForce fiasco - and had to replace my DVD drive a couple of months later; could be coincidence but it could equally well have ben tar build-up on the lens ("smoking in front of your PC seriously damages the health of your optical drives").

    Not played X3 since though - just in case.

    Simplest solution is to uninstall the whole kaboodle (especially StarForce), download X3 via Steam and write off £30.

  59. Anonymous Coward
    Anonymous Coward

    @James Condron

    Technically you could resell toilet paper after you'd used it. There generally isn't a restrictive license attached to it (at least not the stuff I buy - yours might be different).

    You might have trouble finding a buyer though.

  60. Anteaus
    Thumb Down

    Grey area.

    The simple fact is, UK software licensing is a very grey area. Most aspects have never been tested in Court, and hence there are no precedents to set the pattern.

    Though, EULA's which make conditions that clearly exceed those of copyright -for example the OEM condition that should the computer fail the software may not be transfered to an identical replacement machine- are extremely questionable, and may even represent an offence under Trading Standards laws.

    The other side of the piracy issue is that most packages come with no identifiable licence-form, and as such it's very hard to pin-down the vendors as to what constitutes a 'licence' to use the software. Microsoft for example say that owning a serial-number or COA sticker does not in itself constitute a licence. I suppose some might argue that if you don't get a proper licence-form in the package then there is no point in paying anyway, since in that case you could still -in theory- be prosecuted regardless of having paid for the software. Or, woudl a till-receipt be sufficient evidence of payment? Unsure. Not a good situation.

  61. Mark

    Re: sounds like X3

    "Simplest solution is to uninstall the whole kaboodle (especially StarForce), download X3 via Steam and write off £30."

    Simpler still, fire up BitTorrent and download it without StarForce, EULA or restrictions on where you can copy it for personal use.

  62. Louis


    These are not technically true, as you could certainly sell the end product. granted it will be in used condition, and there are very few people who would want to buy it, but there are a few freaks out there...


    By Anonymous Coward

    Posted Wednesday 20th February 2008 09:29 GMT

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



    By James Condron

    Posted Wednesday 20th February 2008 09:35 GMT

    yeah, toilet paper

  63. Joe Drunk
    Gates Horns

    End Loser License Agreement

    Is really what these should be called - you lose no matter what. Little has changed since the days of Windows 3.1

    By installing or using this software you agree to the following:

    1) You do not own this copy of the software - instead, you are paying us for the right to use it as we dictate. This 'right' may be terminated by us on a whim with no recourse available to you.

    2) You also agree that by using this software you indemnify us from any damages caused by our product. You agree not to sue if this trashes your data/hard drive/marriage.

    3) Warranty? Ok, if the disc is bad we'll replace it within a specified time. The software itself? pfffttt! As they say in China "Rotsa Ruck!"

    4) If you do not agree to these terms you may return the software for a full refund. Oh wait - if you got this far that means you opened it, no refund! Gotcha!!

    I believe software companies have been getting away with this because few people take the time to disseminate these ELLA's and just click "I AGREE".

  64. Snipper


    The point I was trying to make was that you only need abide by the licence for as long as you are doing something that would otherwise be prohibited by law: for example installing, copying, or using a work that is under copyright.

    After uninstalling said work, you are no longer performing actions that require a licence. Therefore, you can consider the licence terminated.

    Until you reinstall, and need to agree to it again.

  65. Paul Wilzbach

    EULA analyzer

    @Joe Drunk:

    >>I believe software companies have been getting away with this because few people take the time to disseminate these ELLA's and just click "I AGREE".<<

    FWIW, the program EULAlyzer (free for personal and educational use) will 'analyze license agreements in seconds, and provide a detailed listing of potentially interesting words and phrases.' Does NOT provide legal advice.

  66. Mark

    "OEM condition"

    And that's another reason I won't take XP or Vista. Because they need activation, all MS have to do is say "no" when you ask for activation.

    Worse, the programs have been written such that you cannot install on the computer at all, unless you find out what the "secret sauce" they put in the BIOS is.

    That the condition that the software be used on the original computer only is not legally enforceable means nothing because it is enforced technically.

  67. Mark

    Finessing installation

    Reading the EULA if I don't install, I haven't agreed to anything. So I can pass it on to a friend who agrees to install it on one computer only and pass it back to me.

    They are legal because they agree with the clauses of the EULA.

    I do not install, so they are not at fault either.

    But I loan it out to another friend who agrees to the EULA and installs on only one computer. They pass it back to me.

    I do not install.

    And so on.

    OK, that may be against the SPIRIT of the contract, but since when has that stopped any company screwing up the individual?

    As far as I can tell, there's no breech of license, and since all I've *bought* is a license and a bit of plastic (I don't own the software, apparently, not even the one copy on the CD), there's no problem with copyright: I make no copy.


  68. Snipper

    What we've actually bought

    You know, it sometimes makes me wonder if all this arguing about EULAs being unfair is a bit backwards.

    Microsoft may say "you've bought a licence", but let's face it, we're buying a box with a CD in that purports to contain software that has a particular use.

    If that software isn't in the box, then it's not As Described.

    If there is no licence that makes the software usable (as copyright law would demand), then it's Not Fit For Purpose.

    Either of which means you should be able to return it and get your money back.

  69. A J Stiles

    @ Mark

    According to the terms of the EULA, the permission granted under the licence for your first friend to use the software probably was withdrawn when they voluntarily parted with the original installation media.

    What's more interesting is that you don't need to agree to the EULA if you acquired the software subject to the Sale of Goods Act 1979 As Amended. Because according to SGA79, goods must be fit for purpose -- and if using the software for its rightful purpose entails making a copy, then that copy must by definition be non-infringing. Otherwise the goods would not be fit for purpose. Refusing permission to use legitimately-purchased software would void the sale.

  70. Mark

    @AJ Stiles

    Nope, it doesn't say that. The owner of the CD loses the license if they hand it to someone else, but that's me. And I didn't agree to the license. Handing someone a CD isn't copying either.

    And the problem as I put earlier is that most of the onerous restrictions are not legally enforced, they are technically enforced. And you can't rewrite the software.

    PS we need "Evil Overlord" icon..

    I wish.

  71. Anthony

    Parasitic Computer

    I am in the vicinity of several laptops that say they were designed for Microsoft Windows XP. They didn't come with recovery CDs or indeed any other kind of (re)installation CDs, the backup O/S is on a hidden partition accessed at startup via an F key.

    Obviously when you buy a product you have the option of not buying it but it seems to me that there is something inherently wrong here with manufacturers being able to sell this product. As a test, I wiped one of the laptops and tried to put a different OS on it. I then spent 8 hours re-ghosting it back to its original state whilst swearing a lot.

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