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Jackelope
June 2nd, 2010, 04:11 PM
Howdy. Can an EULA, clickwrap, browserwrap, terms of use, or similar click-though-contract legally enforce something ridiculous? Such as "you will pay Microsoft $500 upon installing this software illegally" or "your soul belongs to Google" or something like that? I'm curious, because after doing some research I've found that these click-through-contracts are in fact legally enforceable and are treated just like a standard paper contract signed in ink. In an ink and paper contract, defining a payment or obligation is legal, so could the same thing be used for an EULA, or are there special rules that govern it? Thanks for the help :)

mickie.kext
June 2nd, 2010, 04:17 PM
If you click "I agree", then yes. You technicaly signed a contract. That is wat it is, it is not a license. You are not bound only by copyright law, but contract law as well. You do not need to copy anything to be in violation.

Is it enforcable... pretty much yes. Even if it is not, you have to be rich to be able to defend yourself.

whiskeylover
June 2nd, 2010, 04:20 PM
A combination of the EULA and local laws govern the limitation. For example, if your local law says that no matter what, you can't sell your soul to anyone, then "Your soul belongs to Google" part of the EULA becomes invalid, but everything else is enforceable.

And yes, click through contracts are just as enforceable.

Frogs Hair
June 2nd, 2010, 04:30 PM
Here is a tool. http://www.spywareguide.com/analyze/analyzer.php

uOpt
June 2nd, 2010, 05:06 PM
If you click "I agree", then yes. You technicaly signed a contract. That is wat it is, it is not a license. You are not bound only by copyright law, but contract law as well. You do not need to copy anything to be in violation.

Is it enforcable... pretty much yes. Even if it is not, you have to be rich to be able to defend yourself.

You are not up to date. Both in Europe and in the U.S. parts of EULAS have been treated in court as not binding even if you click through them and if they don't directly clash with local laws. In the U.S. the recent case against AutoCAD is worth a read for those interested.

fatality_uk
June 2nd, 2010, 05:07 PM
An enforceable agreement is merely when two parties (individuals or businesses) agree on a pre-defined set of terms to which both parties agree to be held to. This can be written, verbal and does require any physical intervention between the two parties, i.e. signing a piece of paper or handshake.

eriktheblu
June 2nd, 2010, 05:21 PM
The degree of enforcement will vary depending on the term as well. If you infringe upon copyright, there may be damages. If there are no damages, then it may simply release the other party from their obligations under the contract.

For example: If I order a cheeseburger at a restaurant, and they fail to provide a cheeseburger, I am under no obligation to pay since the other party did not abide by the terms of the contract.

Sporkman
June 3rd, 2010, 01:32 PM
http://imgs.xkcd.com/comics/faust_20.png

Jackelope
June 4th, 2010, 01:25 PM
http://imgs.xkcd.com/comics/faust_20.png

That's a great idea. And thanks everyone for the input. I think I'll hang an EULA in my apartment that legally obligates all who enter to buy me a drink.

trundlenut
June 4th, 2010, 01:34 PM
That's a great idea. And thanks everyone for the input. I think I'll hang an EULA in my apartment that legally obligates all who enter to buy me a drink.

Hang it on the back of the door.

zekopeko
June 4th, 2010, 01:42 PM
If you click "I agree", then yes. You technicaly signed a contract. That is wat it is, it is not a license. You are not bound only by copyright law, but contract law as well. You do not need to copy anything to be in violation.

Is it enforcable... pretty much yes. Even if it is not, you have to be rich to be able to defend yourself.

You'd be wrong:

http://en.wikipedia.org/wiki/Software_license_agreement

There is not uniform stance on EULAs. They are governed by principles of law and local laws.

samjh
June 4th, 2010, 02:54 PM
Hang it on the back of the door.

Unenforceable. The terms must be posted at a location where the entrant can read it prior to entry (at least, in Australia).

donkyhotay
June 4th, 2010, 03:05 PM
Unenforceable. The terms must be posted at a location where the entrant can read it prior to entry.

You mean like the dialog box while installing software *after* the box is already opened and paid for? Maybe a sign in the middle of the room would be a more accurate example.

lukeiamyourfather
June 4th, 2010, 03:11 PM
Depends on where you are and who the EULA is from. For example in the United States there are laws to protect consumers from certain EULA, like this (http://en.wikipedia.org/wiki/First-sale_doctrine).

In other areas there's no laws protecting end users, or a court to hear a case for that matter. If you violate a EULA on the North Pole I doubt there'd be anyone to prosecute you.

samjh
June 4th, 2010, 03:42 PM
You mean like the dialog box while installing software *after* the box is already opened and paid for? Maybe a sign in the middle of the room would be a more accurate example.

There is no good analogy between click-wrap EULA and traditional contracts.

Generally it's a matter of caveat emptor: buyer beware. Most software retailers will have a sign saying that no refunds will be issued except in cases of physical defect, or something along those lines. The buyer carries the risk of loss in case he or she doesn't want to agree to the EULA (or otherwise unsatisfactory).

Going back to Trundlenut's joke about hanging a sign on the back of a door, the key issue isn't the location of the sign itself. It's whether a person who would be bound by the terms has a reasonable opportunity to understand it and agree to be bound by it. If the sign is hung on the back of a door, with the term that all entrants must buy Jackelope a drink, then an entrant will not have any opportunity to understand and accept to be bound by it, before the term takes effect. If the sign is in the middle of a room, then the question is whether a potential entrant is able to read it, understand it, and agree or refuse to be bound by it, before entering (ie. before the term may become effective). If a potential entrant can do all of the above, then the signage may form a term of a contract, subject to passing the other legal tests of contract formation.





(PS: I never expected a Ubuntuforums.org thread would form part of my revision for an upcoming Contracts exam. :p)

sydbat
June 4th, 2010, 03:49 PM
There is no good analogy between click-wrap EULA and traditional contracts.

Generally it's a matter of caveat emptor: buyer beware. Most software retailers will have a sign saying that no refunds will be issued except in cases of physical defect, or something along those lines. The buyer carries the risk of loss in case he or she doesn't want to agree to the EULA (or otherwise unsatisfactory).

Going back to Trundlenut's joke about hanging a sign on the back of a door, the key issue isn't the location of the sign itself. It's whether a person who would be bound by the terms has a reasonable opportunity to understand it and agree to be bound by it. If the sign is hung on the back of a door, with the term that all entrants must buy Jackelope a drink, then an entrant will not have any opportunity to understand and accept to be bound by it, before the term takes effect. If the sign is in the middle of a room, then the question is whether a potential entrant is able to read it, understand it, and agree or refuse to be bound by it, before entering (ie. before the term may become effective). If a potential entrant can do all of the above, then the signage may form a term of a contract, subject to passing the other legal tests of contract formation.Sorry to point out the flaw in your logic, but...

Most people enter into "contracts" without really knowing what they entail. This is why EULA's are so insidious. They rely on the user to NOT read through it and blindly click "Accept". Therefore, just having the sign somewhere in the room implies that the person entering has implicitly agreed to the terms. However, local laws should have precedence over any item in the EULA, making those items invalid and unenforceable.

HermanAB
June 4th, 2010, 05:04 PM
A EULA depends on people being gullible enough to think that they mean anything. Go and read your state's "Sale of Goods Act". All civilized states have their laws on web sites available for all to read.