Adobe demands 7,000 years a day from humankind I'm not a very good liar, I haven't got the memory for it, which is why it always pricks my conscience whenever I tick the yes box to the prompt "I have read and understood…" when installing software. I am, of course, fibbing. I never read a word. In fact, even though we all tick yes to these agreements every day, unless you're …
I'd always thought that there was a little bit of give-and-take in all of these things. The software vendors just assume that your average Joe (and I include myself in this definition) will just tick the box, and your average Joe just assumes that he won't get taken to court should he fail to remove all copies of Flash from his mountain of backups once he's sold his old PC.
These agreements are mainly in place to stop massive abuses of software theft and copyright abuse, rather than impinge on what the other 99.9% of users are doing with their computers.
> software theft and copyright abuse
Right. Because of course a freely downloadable player will invite "software theft and copyright abuse"
Just assume that it boils down to the kind of give-and-take where they TAKE all your right and GIVE you none.
> a freely downloadable player will invite "software theft and copyright abuse"
Probably more to do with patching the software to make it more beneficial - which might annoy the DRM content crowd.
My personal favourite is the EULA and license for a patches. Why do they need a new license to assent to? Surely it should just say - "This software is covered by the terms of your original license accept/decline?"
Even more fun is reading Apple's licenses on an ipod touch. I think the record I saw was around 75 pages.
Aples EULA actually has a bit in it about not using this software (e.g. itunes) for ... "the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons."
- check for yourself http://www.apple.com/legal/itunes/appstore/dev/stdeula/
Taken literally this means that the US and UK government can not use Apple software and products!
Also I've often wondered how legal a click in a check box, suppose you get your cat, fluffy, to check the tickbox for you, would that work.in a court of law " I'm sorry your honor but it was fluffy my cat what that done it, not me."
... your average Joe just assumes that he won't get taken to court should he fail to remove all copies of Flash from his mountain of backups once he's sold his old PC.
I don't believe 'your average Joe' has even taken a backup in his life, or knows how to.
He may have a USB drive somewhere with copies of some of his more recent correspondence and some of his holiday photographs, but he won't have a backup ... and if he did it wouldn't include his copy of Flash.
By definition, to have seen the Adobe EULA you are already running Adobe software and thus would (presumably) be bound by a EULA you haven't yet read. Don't forget that from the first assembler instruction you are bound by the licensing on that program. Similarly, ToU agreements on websites suffer from the same cyclical dependency - to agree to how to get here, you have to be here.
Similarly, if you are supplied with boxed software, you are sometimes agreeing to the license contained within (that you can't see) just by opening the box.
Thus, in law (and there has been a case with boxed Microsoft software, I believe), it's all a load of baloney. There might be an *implied* contract but asserting that the "I agree" box is legally binding is far from the truth. For a start, prove that I clicked Yes and it didn't just not show me that dialog at all... you can't. It's almost impossible to prove that I actually agreed and not, say, my cat, or my broken keyboard did it for me without me realising.
And that also means that if I can find a way to install the program WITHOUT seeing the EULA and agreeing to it, then I'm not bound by the EULA? I don't think that would wash in court either - and I have seen setup programs that I disagreed with the EULA, clicked the windows-close button and it carried on assuming I had agreed (and I've even seen one that had only an "I agree" box and nothing else).
And even if you think I accepted the EULA, most of it is nothing but legal boilerplate and quite a lot of it is, again, unenforceable in some jurisdictions anyway. They even acknowledge this in most EULA's. This is part of the fuss over "class action" clauses - you know, if there's ever a good reason to have a class action, then that part of the implied "contract" will just be deemed unfair and void anyway.
Making EULA's a binding agreement would be a possibility - but it would also mean that manufacturers would need to FORCE you to read them before having the product in your hands, they would need to be fair, they would need to be local to each jurisdiction, they would need to be provably signed and verified, and only THEN would you be able to provide the software based on the agreement - like good, old-fashioned contracts have always worked.
Nobody's yet contested it properly, because it will create an absolute MESS in the jurisdiction that successfully contests their legality and such things are expensive for everyone. But they are less enforceable than almost anything else you can imagine at the moment because of the grey areas. Most convictions for, e.g. copyright infringement, etc. do not rely on the provisions of the EULA at all because it's just a roundabout way of costing the whole industry a lot of money and pushing impossible restrictions onto the sale of digital good.
Seeing as most EULA's I've bothered to look at also had a clause stating "if any of this contract is bollox, then the contract is basically everything excluding the bollox" - so they can demand the world, your firstborn and whatnot and it's up to you to prove they don't have that legal right rather than pushing the obligation onto them to offer a fully legal contract.
I'm sure a while ago there was a lot of fuss about employment contracts containing illegal clauses (specifically the one about not leaving to work for a competitor). The point was that any such clause rendered the entire contract null and void. The point was made, I recall, that adding a "bad clauses remove only themselves" was itself null and void, you can't just chuck things willy-nilly and hope that the law will remove the bad ones.
I have no idea, I'm not a lawyer (thank goodness) but I suspect if a EULA was tested in court then it could be overturned as a confusing mass of contradictory, unenforceable and unintelligible statements.
My understanding is that a contract is a meeting of the minds. Any so-called agreement that you cannot negotiate but must accept as-is is an adhesion contract and is thus unenforceable. That said, IANAL.
Further, it seems to me that these EULAs can be summarized as 'we have all the rights, you have all the liabilities' (and any draws go to the dealer...)
wasn't there an issue on some early versions of Windows where the code that dimmed the "Next" button on installers until you checked the "I agree to your ludicrous terms" box was by-passable and you could run a small program to un-dim the next button without agreeing to the license?
I would suspect that there was some effort to address that, but I suspect its still possible to get past that check box if you're determined enough. And you're right - they have no way of proving if you did read and agree or not.
When I rented my last accommodation I pointed out several spelling and/or grammar errors in their contract. I strongly suspect I was the first person ever to read it and not just blindly sign it.
I politely disagree on a number of points:
* The case Oracle vs. Usedsoft (decision of the European Court of Justive available here: http://curia.europa.eu/juris/liste.jsf?language=en&jur=C,T,F&num=C-128/11&td=ALL) seemed to at least partly refer to a clause in the EULA. The EULA was not thrown out outright, so calling a EULA invalid from the onset may go to far.
* Your approach to assume circular reasoning is interesting, but I wonder whether it fails to take into account that you may modify an agreement by mutual agreement. Thus, you run (and therefore exercise the right to make a copy of) the installer software/the software under an implied contract with a restricted license which then is modified by the EULA.
* Regarding the fairness test of the general terms and conditions, I assume you are right. However, you agreed to those clauses in the first instance so you may be on the heels with this defense.
* Signature is usually not required for concluding an agreement in most of the EC.
* I agree regarding your view on infringements: Most of the time, the infringement does not necessarily depend on the EULA. Oracle vs. Usedsoft may have been the important exception though.
What I don't get is why Adobe feel the need to force me to agree again for every single update. I've already claimed to have read the license agreement when I first installed the software, this is just an update so it doesn't revoke what I have previously agreed to.
In fact even if Adobe had changed the clauses of the EULA, the fact they don't inform you of this means that they aren't enforceable anyway - as a reasonable person could assume the EULA is the same as the version they agreed to 5 years ago!
Except that most EULAs contain statements like: we reserve the right to update this agreement at any time and you're responsible for continuing to accept any new changes we post to [hieroglyphically long url that is long enough to word-wrap but this isn't handled by our page formatting] or you'll uninstall the software.
Not just Adobe: it's all of them.
I think they have been court tested in NY and it was essentially "companies are expected to read them - individuals are not". That might have been wishful thinking though!
The article makes a bizare claim for Apple ("I have to say I find Apple’s take on things rather interesting."), but as anyone who has updated any app on an iPhone/iPod etc knows, the T&Cs change with great regularity and even greater verbosity: 35 pages or more to get an update from another company, not even apple!
That habit lasted for about 45 minutes, at which point my co-worker ( I was a new hire) told me to stop being ridiculous and just check the box and install the damn software. Later, after everything was installed and running, I calculated that if I had read each license agreement, I would still have been installing software the next afternoon.
"I understand" that this corporate software will open backdoors on my computer and track me till the day I die, and the only thing likely to interfere with Microsoft's, Google's and Adobe's data collection is their falling over each other while trying to simultaneously rake my hard drive. Go for your life.
Richard Stallman is just as bad here as the "proprietary" folks. Have you actually read any version of the GPL? (OK, I haven't read v3, but I did read through v2 many years ago, in a moment when I was feeling bored and wanted something to help me sleep. It worked well.)
The only software license that isn't like this is the "public domain" one -> "This software is in the public domain. Do what you want with it, but don't expect any help either."
Public Domain isn't a licence. When you place something in the public domain you are taking a very specific legal step, you are gifting that something to the whole world. From that moment you have surrendered all rights to it because you no longer own any part of or interest in it, so you can't license anything related to it.
It's a very nice thing to do, but very few people actually do it.
Did you know that you can't do that in all countries? Copyright legislations vary. For example here in Finland our copyright law doesn't recognize Public Domain. There's no mention of it. In Finland the author always retains copyright for their original work, no matter what. The author cannot get completely rid of his/her copyright. Of course the author may state that copying, distributing, modifying and whatnot is perfectly fine and that in the future he/she will never demand any of the rights that the law grants. That may be close to being Public Domain, but not completely, because legally the copyright remains with the author.
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No public domain in Finland? How does that work?
Who owns works whose authorship can't be traced (orphan works)?
Where a work is ancient or every old, created before copyright existed, who owns the rights?
Is Finland signed up to the Berne convention? What does it do regarding public domain works in the rest of then world where they're published in Finland? Assign local ownership based on publication? Even without creative input?
In addition, having No public domain seems evil to me - yeah evil! Everything must be someone's property; no commons. No public culture open to all. The apex of the capitalist wet dream.
Are you SURE Finland has no public domain?
I think the poster who started talking about Finland was confused. There's a difference, in European and international (but not American) copyright law, between "moral rights" and "commercial rights".
Moral rights mean, basically, the right to be identified (or not) as the author of a work, and the right to object if someone distorts it and falsely attributes it to you. Commercial rights cover the copying/distribution/etc. issues that attract all the attention.
In Finland, as in every EU country, "moral rights" can't be sold, but "commercial rights" can.
Hope this helps.
Many countries have no pubic domain - it's intended to protect authors.
With public domain you can always just take some work and say: "I thought it was public domain", where there is none you have to at least show some understanding that it did have an author - even if their rights have lapsed.
It's equivalent to compulsory voting - it seems pointless but makes it harder to prevent people exercising their rights.
Despite it being as long as most proprietary EULAs, the GPL is far superior on this issue because:
* It is written to be a general license, so the exact same text is reused for innumerable projects. Read a version of the GPL once, and you can honestly say that you have read (if not understood) the license for any project which uses it.
* It is static. There are new versions occasionally, but you don't have to re-read "GPL v2" every six months, on the offchance that it's been modified in some way.
(Similar things can be said of any FLOSS license, of course, I just use the GPL as the prime example because of its combination of verbosity and popularity.)
The open-source world had something similar to this for a while, we called it "license proliferation". The community as a whole saw this for the problem it was, and (mostly successfully) urged projects to use one of a smaller set of licenses, rather than everyone coming up with their own.
Proprietary software vendors need to recognise this as a problem, and engage in something like the Creative Commons licensing project; to create a set of simple, discrete, modular, reusable, terms, which any site can adopt. But so long as the lawyers are making bank, I don't see this happening.
How many people download a package with a GPL license and check it wasn't altered? Not many.
If you don't compare to a reference copy, how do you know that it is the proper GPL license and not one that has a "now we own your first born" clause?
Answer: you don't. You just fell into the same trap as people clicking through on commercial licenses.
The only benefit to the GPL or BSD or Apache licenses is that they are (mostly) standard. I'd honestly say the BSD license is better than the GPL in this regard as it is relatively short - the 2 clause version is 29 lines of 80 column text long, with the differences being in whom claims the copyright. GPL v2 is 339 lines according to one local copy. GPL v3 is 674 lines long, again in some local copy from some package or other. To me thats just as bad as an Apple license.
"If you don't compare to a reference copy, how do you know that it is the proper GPL license and not one that has a "now we own your first born" clause?"
Because the package is distributed with the terms "this package is licensed under GPL2" or whatever. In other words it does not bundle it's own license copy, rather instead references a single common immutable document.
"If you don't compare to a reference copy, how do you know that it is the proper GPL license and not one that has a "now we own your first born" clause?"
No because then the contract would be a lie, if it says GL2 then the real GPL2 is what you are agreeing to.
Otherwise it would be like faking a banknote and saying that the other person accepted it so its OK
The basic rules are simple and apply to all GPL and LGPL licenses and many other copyleft ones.
You can use the software however you want but liability is disclaimed. Use it, copy it modify it for your own use and you don't need to worry about the rest of the license.
If you want to distribute it (something that none of the proprietary consumer licenses permit at all) you must distribute the source (possibly to the whole programme).
I think it was Norton who had the only sensible T&Cs I recall....please treat this software like a book, you can install it anywhere but you should only use one copy at a time.
As the article implies, the more you tie these things up in legalese then the less likely people are to even bother reading it to say nothing of complying with any conditions. All these complex regulations/agreements achieve is to create loopholes for people who like loopholes to slide through and 'normal' people to get snagged in.
I agree - the fact that the EULA is non-negotiable means that the end user has no say in the terms and conditions. As a result it cannot be a contract.
The fact that it is written in 'legalese' which no normal person should be expected to understand (if you are a Lawyer then you could be expected to understand the terms and conditions, but most people aren't) just goes to re-enforce that.
It's a waste of a lot of peoples time.
quote: "I agree - the fact that the EULA is non-negotiable means that the end user has no say in the terms and conditions. As a result it cannot be a contract."
A quick wiki for contract reports that "undue influence" is an affirmative defense, and the first lines for Undue Influence being "In jurisprudence, undue influence is an equitable doctrine that involves one person taking advantage of a position of power over another person. It is where free will to bargain is not possible."
I'm pretty sure most people would agree that "tick agree or GTFO" is a position where free will to bargain is not possible. This leads to the interesting assumption that all these highly paid lawyers writing all this EULA boilerplate are actually aware that any EULA presented under "tick agree or GTFO" conditions are by definition unenforceable, if the second party then claims undue influence with intent to void the contract.
I think I might use that one myself, if ever in the position of having to defend a breach of EULA in court :)
The boxed version of Windows 1.03 (or 1.04, I forget. It was 1987 when I experienced the wonder) had a sealed envelope inside it, containing the installation floppies and some paperwork. It was sealed with a thick white sticker upon which were written words to the effect of "by opening this envelope you agree to be bound by the terms contained within it".
For some reason, this was later deemed to be not legally enforceable. No idea why.
autodesk took that on a pace
no warnings on the box but the eula said that opening the box implied agreement to the following terms... .then i lost the will to live.
i seem to remember them getting a bit of a kicking over this, well this and other statements in the eula that made it impossible to resell.
... I read the EULA for a piece of proprietary software (because I was bored, OK?). They had probably cropped some of the text directly from another licence and hadn't bothered to read what was there.
I had a meeting with them a few weeks later and remembered what I had seen. It turned out that we were possibly using the software illegally and I felt that they should be aware of this.
The key phrase was something like ".. in cases of lighting..." instead of "lightning". So the agreement indicated that we couldn't use the software if the lights were turned on and they took no responsibility for any problems if they occurred.
Everyone had a good laugh at this, but it did get me wondering, what would happen if a supplier did try to use an error in an agreement to their advantage.
Never did find out.
I remember some legal mumbo jumbo from a while back claiming that EULA's were completely unenforceable under UK law as the term - 'agreement' meant that both sides had a chance to write their terms. Since EULA's only give a chance for the company to offer it's terms, and the only option is to disagree (especially when you've already brought the software) , there is no agreement, and no enforceability.
At least, that will be my defence in court...
You can have a one-sided agreement (where only one party gets to write the terms and the other one takes it or leaves it). It's subject to unfair terms legislation in the UK (i.e. the terms of the agreement can't be manifestly unfair) and so the more arduous stuff is simply unenforceable. Ok, the agreements normally say that they're California law or similar, not English law, but I don't think that'll get you very far when you know your customers are in the UK.
I remember from my law school days that there was some suggestion that, if the side that wrote the agreement knew that the other side hadn't read the terms and conditions, those terms and conditions weren't binding. Don't think that's ever been properly tested though, so don't bet on it.
These two things, the fact that if the contracts *were* subject to scrutiny they'd open massive cans of worms (as the article has shown) and the billions of hours and dollars it would take these companies to enforce EULAs that everyone was breaching the software just through day-to-day use suggest to me that if you just want to use the software then you're fine to just tick the box.
That the main issue with EULAs is that the terms aren't up front but post-purchase. That is the main issue with them being unenforcable. Basically if stores would provide a contract up front detailing the EULA then that would be legaly binding - it's a take it or leave it thing. If you take it you pay for it and are bound by it. Else you don't. Since you aren't made aware of this before buying it it would certainly breach various laws.
> This agreement does not permit you to install or Use the Software on a computer file server.
Define 'file server'.
By default Windows has a shared folder visible over the network and is therefore a 'computer file server'. Does this mean that a large proportion of Abode's user base are in breach of the T&Cs?
Perhaps a lawerly type can explain to me that the "consideration" (http://en.wikipedia.org/wiki/Consideration) is in an "agreement" such as Adobe's? I can see that there is an (implicit) value to the end user in being able to view content that would otherwise be invisible, but there's nothing of value passing in the other direction. Adobe may well get the benefit of revenue from content developers as a side effect of the existence of content consumers, but they're not a contracting party.
Obviously as the copyright holders in the original software they'd be able to stop people redistrbuting it or making and distributing derived works, but even then surely they'd be hard put to quantify monetary damages arising from unlicensed use of a free giveaway if it came to court. As for the rest, difficult to see how any sort of contract exists.
I think this is a great article, but the link to Niall Ferguson's dreadful Reith Lectures (embarrassing in their partisanship given that he's a serious scholar) is wide of the mark. Surely this is a different case altogether? I disagree with Ferguson that the bankers were over-regulated, but the point is that they were being trusted with other people's money to manage, so need in some form to be watched and to be stopped from misusing that money. Users of a software product are in a completely different position - we're not placed in a position of trust in any respect. OK, it was only intended as a partial analogy, but given that it rests on such dodgy grounds to start with, it doesn't really work.
BSD is really short. GPL V2 is clear and simple. GPL V3 is longer and more complicated, but those three cover the vast majority of software I install. Years ago, clicking on a document activated a network install of Microsoft Office. I decided I was not authorised to agree to the terms on behalf of my employer, so I clicked the "Disagree" option. It installed and worked fine.
If you want some really good terms and conditions, try a porn site. If you accidently subscribe twice, you get charged double. To stop this can call the premium rate number and listen to the prerecorded message. I assume the message says something like "We got your money and we are keeping it". To unsubscribe, fill in the web form and wait for instructions to arrive by email. They should arrive within a decade.
The first place to look in a contract is how to end it. If that bit is missing or complicated, you know it is time to go elsewhere. The other fun clauses:
"If any conditions on this contract are not enforcible then the remainder of the contract will still remain in force." This means: "Many of these conditions are attempts to fool you into thinking you do not have statutory rights."
"This software [a C compiler] will work broadly in line with the printed instructions". The printed instructions were a small card explaining how to install the compiler. Started the installation in Friday morning, and it was still going on Monday morning. Nothing in the 'printed instructions' said installation would complete in under a year.
Free software: automatic no hassle money back guaranty. Proprietary software: If negligence or malice or our part causes your computer to explode and burn down you house or office, damages are limited to the cost of the software or a replacement CD.
"If any conditions on this contract are not enforcible then the remainder of the contract will still remain in force." This means: "Many of these conditions are attempts to fool you into thinking you do not have statutory rights."
There is an accepted legal process for contracts (blue lining) which permits the removal of a clause without it affecting the remainder of the contract.
This generally works if you take the overall spirit of the contract, permitting an unfair clause to be removed without declaring the entire contract null and void (which could lead to more serious repercussions). Agreed it is open to abuse.
...Yet I’ve come to the conclusion that this discontent has less to do with this process troubling an innate honesty. It is more about an increasing feeling of contempt for the 'I agree and understand' approach that, time and again, undermines personal integrity to perpetuate what amounts to a meaningless relationship....
I'm glad people are starting to notice this. These changes in perception and relationships are not easily definable, but they ARE very important. They set the whole tone for how a society works.
In many ways a person from the 1950s would be appalled if they were shown how today's society works. For a start, the assumption in the 1950s was that an MP was honourable. Look at Critchel Down, or the Profumo affair to see what happened if they were shown to have 'slipped'. But politicians (of all parties) since Blair have successfully provided 'leadership' which has resulted in:
- A widespread contempt for the law
- The assumption that bare-faced lies are acceptable
- Operational processes which renders certain sections of the community (mainly the police and politicians) above the law
I think that started pre-Blair, but I wouldn't like to say exactly when. I remember John Major's administration was pretty laid-back, morally speaking. Looking back, I think we could pin quite a lot of blame on 'Yes, Minister'. That was the show that set, for a generation, our base expectation that public servants were ruled by selfish interests, with public service coming (at best) a poor second in their priorities.
The irony about EULAs, as the article hints but fails to say outright, is that they create a regime where the only people allowed to use your software fall into two camps:
(1) IP lawyers with way too much time on their hands
(2) liars and fraudsters.
Which, as you say, sets up the expectation for their ongoing relationship with the customer. They detest and mistrust me, and I'll repay that confidence by screwing them over if I get the ghost of a chance. Nice one.
" That's because they don't want you to read it, you might object to the clause that allows Apple to sew your mouth to the ass of another iTunes user..."
Ah, the centipede clause. It's a classic. My favourite is the Insanity Claus. That's the one where you're required to believe you're a jolly old man with a white beard who brings toys to children once a year.
Mines the one with keys to the sleigh.
With more cars coming with LCD screens instead of dials it is only a matter of time before you're accepting disclaimers before starting the car.
Of course, such a thing may be illegal, but I'm sure there are people lobbying for it, probably Google given their auto-driving technology and love for lobbying.
"..it is only a matter of time before you're accepting disclaimers before starting the car."
That day is already here. My wife's car requires that you click to agree to its software terms and conditions before any electronics beyond the basic speedo and gauges will work, and then another disclaimer that you won't use the GPS navigator while you're driving(!). Then the radio won't work unless you agree to IT'S terms and conditions ... hold the wheel and watch the road for me a minute while I read this ... ah, it says I agree not to use it while I'm driving.
Strangely enough, the vehicle makes no mention of Google.
I often need to rename a copy of a flash ocx file to allow an old corporate screensaver to work. Am I guilty of reverse engineering?
Why Apple don't use Flash article from The Jobs on http://www.apple.com/hotnews/thoughts-on-flash
They really have fell out haven't they! Anything to do with the EULA?
There is a saying that ignorance of the law is no defence, but if the law is so complicated that *no-one* can tell you what it means then there is certainly a moral case for saying that ignorance *should* be a defence.
That's obviously a massive can of worms, but we should not dismiss it out of hand for that reason. Each year, governments around the world add to the pile of "law" in their respective countries and make it less and less likely that even the judges and lawyers (let alone the populace) actually know what's allowed. At some point, the camel's back will give way. Once the judges, lawyers and politicians can no longer give a straight answer to the question "what does that mean", it is a short step from "no-one knows exactly what is illegal" to "nothing I want to do is actually illegal". We probably don't want to be around when that happens.
To be topical, we already have that situation with tax. The result is that sufficiently large corporations can spend a relatively small amount on lawyers and save a huge amount on tax. They are above the law, in practice if not in theory. Yesterday I heard that Starbucks had announced that they were reconsidering their use of tax dodges, not because any of them had been found illegal but because they were worried about the publicity and there have been demos outside branches. It appears that a multinational corporation fears the threat of random acts of violence rather more than the threat of legal action. That's a rather dysfunctional society we have here, then.
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The EULA thing is all very interesting because under English law a contract exists if there is an unambigous offer (software made available) and an unambigous acceptance (ticking the box). However, the unambigousness means it must be clear what the parties actively agreed to and this isn't clear on the consumer's side. Also, even when a contract exists the terms are considered to be whatever the two parties reasonably believed them to be. Supplement this with European consumer legislation which basically says the provider has an obligation to make sure the consumer understands what they are agreeing to and you end up with very little.
The bottom line is that where the agreement is with a consumer (non-commercial user) the fact that Adobe (or whoever) can reasonably determine that the EULA isn't being read the contract can be presumed to be whatever the consumer thought it was - ie yippee, free software - full stop, end of agreement.
So as a home user the likes of Adobe don't have a leg to stand on as far as your obligations are concerned. It might give them some slight protection in terms of liability but I suspect that mostly won't work. If you sued Adobe because a flash install wrecked your computer then their defence is going to have to be the common law defence that the consumer had no reasonable cause to expect Adobe to take liability for their use of free software. The EULA simple backs this up as an "if you insist on looking at the paperwork then its on our side" measure.
As far as I knew, the acronym "SLA" stands for "<a href="http://en.wikipedia.org/wiki/Service-level_agreement">Service Level Agreement</a>", and refers to a warranty from a service provider to give at least a certain percentage of uptime or certain speed of dealing with problems, often with a defined refund of charges when the level of service guaranteed is not met.
I've never heard it being used to refer to a generic EULA before, and don't think it makes much sense in that usage, as most EULAs tend to disclaim any guarantee of functionality - as you yourself refer to "the scope of most licence agreements to relieve the vendor of the responsibility of actually delivering a functioning product".
What did you think it meant?
(ObTopic: As far as I'm concerned, all EULAs I've ever seen are dishonest bordering on fraudulent, unequitable, invalid and unenforceable. Whenever I see a tickbox that says "By clicking on this box you agree that you accept the Ts&Cs", I address my computer thusly: "I wish to negotiate an exemption to all the terms and conditions of the license. By turning checked when I click on your checkbox, you are agreeing that you consent to this waiver". I don't see why that should be any more or less valid a contract than the one I have supposedly agreed to with an inanimate entity.)
These EULA's are written by self declared very smart people who earn of money using their voodoo witchcraft to protect the company from imaginary risks. This actually is the lesser of several evils, the worst being that you let them write procedures that actually matter in they daily business of a company.
Oh, and I fully consider this to be the best license ever:
/*
* ----------------------------------------------------------------------------
* "THE BEER-WARE LICENSE" (Revision 42):
* <phk@FreeBSD.ORG> wrote this file. As long as you retain this notice you
* can do whatever you want with this stuff. If we meet some day, and you think
* this stuff is worth it, you can buy me a beer in return Poul-Henning Kamp
* ----------------------------------------------------------------------------
*/
Almost every time I want to update an app on my iPod Touch, or download a new free app from some 3rd party, Apple pops up a box saying that their Terms & Conditions have changed, and I am required to read and confirm my understanding of a 43-page agreement (yes, 43 pages!) before I can proceed. No clue is offered as to what has changed. Of course I click "I Agree" and proceed with my download, assuming that one of my regular web news feeds will warn me if Apple has done anything too draconian.
My own company sells software and has a EULA. It's 3 paragraphs long, and it basically spells out the terms of licencing in a few brief sentences, states that it's up to you to know what you're doing with the software, and disclaims any responsibility for failure to meet your needs or consequential damages. We do follow legal cases on the enforceability of EULAs, and in some cases judges have decided that if the EULA is too long and cryptic, it is not enforceable. In other cases they have stated that if only a link is given, and not the actual text of the EULA, it is not enforceable. But there is no consistency.
This is hardly the only area in which one must agree to ludicrously extensive legal terms and conditions without reading them. As a small company which bids on government contracts in several countries, we are frequently required to agree to bid and acquisition regulations which run to millions of pages in thousands of separate places, all cross-referencing each other, stating thing such as the minimum size of our bathrooms for disabled women of visible minority race. It all seemed like a good idea to somebody at some time. But today it's beyond impossible to be aware of even a fraction of it, even if you were limiting yourself to contracting in one country. All one can do is keep in touch with your business community and be aware of any issues which have been a problem for others.
When you purchase an OSX install disk you find 4 stickers in the box, each with representation of the Apple logo. The accompanying EULA states that "you are granted a limited, non-exclusive license to install, use and run one (1) copy of the Apple Software on a single Apple-branded computer at any one time".
The reasonable assumption to be drawn is that it is permissible to install the OS on any computer whatsoever, provided the Apple brand logo is attached to the computer. Indeed, most Windows laptops I come across in PC World are branded with a little Windows 7 sticker. Same thing, right?
never will waste my time reading unenforceable junk, so what if a company feels the need to enforce a EULA i just do not care. people should realise though that any software installed will always have a way to phone home and you should do your best to block all applications from seeking their masters over the internet.
Which is one of the nice things about Apache, GPL, BSD, MPL. Once you read it you don't feel guilty about clicking yes the next time you install some piece of software the uses them, as opposed to some proprietary one off agreement containing Gods only know what.
That and they some how feel less restrictive for an end user. Almost as if they trust me to play responsibly.
.. because the idea that the GFC was caused by OVER regulation is itself factually incorrect.
The problem, as has been well documented, was not OVER regulation but the fact that the regulatory regimes relied on banks and institutions acting in their own best interests WITHOUT the force of regulation to coerce this behaviour. As with all ideas, this worked great on paper, where everyone behaves in alignment with the idealists predictions.
But of course, it fell flat on it's face in practice because the "best interests" that were pursued were not those of long term stability, security and growth, but short term gain achieved by fudging, cooking and fiddling the numbers, as was now permitted with the relaxation of regulations.
It was the combination of selfish behaviour and deregulation that caused the GFC. Not lengthy contractual terms and regulatory conditions imposed on the institutions.
None of which alters anything w.r.t the main drive of the article and the pointlessness of EULA agreements.
Although I would argue that it is the ability of a software vendor to abdicate all responsibility for fitness for purpose or "merchantable quality" in their products that is responsible for the failure of the software development profession to lift itself up out of the fly-by-night, formalised hackery that we all practice, to the true heights of an engineering discipline.
At least, not outside of some very limited areas.
Compare and contrast the emphasis on "RAD", "dynamism", "flexibility", "productivity" (bwhahahaa!) etc of the "commercial" software development "industry" (and the quality of the results) with the rigid, detailed and precise requirements and practices of embedded software developers - producing software that HAS to be fit for purpose, and HAS to be of merchantable quality, because once you have launched your Mars Lander orbital delivery system or your washing machine or your motor vehicle, you can't just push out software updates to fix the bugs.
The trouble is, "Quality" isn't sexy. In fact, it's a dirty word, despite the fact that so much of the BS marketing around software development tool chains is about "the Q word".
The real purpose of a EULA is about limiting liability. If, for example, a bug in Acrobat leads to a formula rendering improperly and, as a consequence, a nuclear power station explodes, Adobe, quite rightly, would want to have something in writing absolving them of responsibility, if only to save them having to argue the toss in a court.
EULAs aren't really there to waste your time or force you to be dishonest. They are an evil, but a necessary one. Partly they're to enable revenue protection activities, but mostly they're there to deter those silly chancers who seem tempted to sue every company they've ever heard of for every misfortune they've ever suffered, not all of whom are too poor to win. I won't mention names, but when the world's got a plutocrat in it who's happy to threaten suits against governments, beauty pageants and even their own law firm, it's as well to take precautions.
A EULA may take some minutes to read, but what about the 57 articles of the Montreal convention, the 21 pages you agree to when posting a letter, the 31 pages when buying a rail ticket, or the turgid screeds that accompany (or are deemed to accompany) every insurance policy, pension plan, taxi ride, utility provider, courier service or retailer?. The only reason you're not complaining about them is because, I guess, you've never been clearly given the option to read them. I don't see how that makes them better.
The difference is that I can go to the corner shop and buy a book of stamps, without being asked to sign a form saying that I've read and understood the Montreal convention. Same with the other examples you cite.
And I seriously doubt if the EULA has any effect whatever when it comes to disclaiming the sort of responsibility you're talking about. So far as I can recall, the makers of typewriters never felt it necessary to include disclaimers in case someone used them to write bollocks. In order for Adobe to be at risk in the situation you describe, I'd have to show that when I typed and checked the formula, it said one thing, but when you viewed and printed it, it had transformed into something quite different. In that situation, I honestly think Adobe would have some explaining to do, no matter that their EULA clearly states "This software doesn't actually work, for any meaningful or reliable value of 'work'."
Remember that we're in a society that can have a debate over what the meaning of "is" is.
Each of the lines in an EULA is a scar, the result of a court case where some lawyer argued that they didn't have to pay for the software on account of thus-and-so wasn't specified specifically in the specific specification specs of the User Agreement as being something you couldn't do. Like, the EULA says "don't copy our software", but what is the actual *meaning* of the words "copy", "our", "software", and "don't"?
I do a *heck* of a lot of automation work - I have too many hosts and not enough bodies - oddly - this is a subject I find we trip over a lot.
The number of *server* apps that require a "license agreement" to install is staggering. Even on my target audience, linux and HPUX. I'm not talking about the OS provided stuff.
I've learned most of the tricks and workarounds for my automation tools, and I've had a number of arguments about process with legal beagles over the years... but in pretty much every case, the answer has been, "yeah that works around the need for our "You've agreed to our License" on some sort of screen, but its just fine with us" . This is likely because we are pretty darned aggressive about tracking and reporting where these license agreements have been worked around.
Long and short, there's a crapton of words in there, most of which are there just to make some lawyer warm and fuzzy, almost all of it simply wanting you to be honest and pay for the damned software, but not sue the crap out of the provider when it bankrupts you by buggering up the math, or suing them when it makes your firstborn offspring join a Tibetan monastery in Walla Walla.
The stuff that actually requires a license key -- that makes my hair stand up - thank god for things like cfengine, puppet, chef etc etc.
Anyone ever had deelings with AutoDesk? Have you ever seen their "upgrade clause"? Here's the explanation from them about this in the FAQ:
http://south-apac.autodesk.com/adsk/servlet/index?siteID=1157326&id=9737425#section12
Thus you upgrade to a new version, then (as nearly EVERY time happens) the new version is so bug ridden as to need a year's worth of service packs, you keep using the old version - otherwise your work is non-existent. But that's breaking the license agreement - you have 120 days to uninstall and destroy any hint of the old version. And if asked give proof that you've done so.
Now I can just imagine how a Vista upgrade with such a clause could have caused huge online venting and court battles.
Found this doozy in an Electronic Arts EULA:
"When you play this game offline, EA and its affiliates may collect and store non-personally identifiable data including your Internet Protocol Address as well as game play and software usage statistics. If and when you access online features and/or services, this data may be transmitted to EA. EA may use this information to improve our products and services and may share anonymous aggregate data with third parties."
Not content with keeping track of everything you do online (I now refuse to play EA games online because of their intensive monitoring), but downloading a patch will provoke all your user info to be upoaded.
Hi Bob,
While agreeing (paranoiacally) with your eloquent vivisection of the comatose hyperbody of software's death-support system of legal obfuscation:
I think it is critical to keep in mind that, particularly in the U.S., it is the highly litigious nature of contemporary times that is the source of all this disclamatory verbiage. It is the hordes of hungry lawyers, and their greedy firms, that are ready to bring a class-action suit for anything they can imagine might be lucrative.
We (in the U.S.) are in a culture of ever-increasing "patent wars:" that is nothing new under the sun; many, many, years ago Texas Instruments made far more bottom-line profit from IP and patent legal actions than from selling any tangible electronic device.
But, I am not trying to "shift blame" for all this crap in EULA's, and TOS's, just flesh-out the context.
To me the most reprehensible activities in this whole bloody mess involve the harvesting of personal information, on-line tracking, the egregious cunning by which sites like FaceBook get often naive people to share their address books. I lose track of how many invites to FaceBook, LinkedIn, etc. have been sent to me by the inadvertent actions of people I know, and how much effing trouble it is to get off those sites mailing lists.
Eric Schmidt, Google CEO, in an interview with USA Today describing his "vision" of a future Google: "access to everything ever written or recorded, know everything the user ever worked on and saved to his or her personal hard drive, and know a whole lot about the user's tastes, friends and predilections."
from the bitter chocolate factory, to your ears, Willy Wonka
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