Corante

AUTHORS

Donna Wentworth
( Archive | Home | Technorati Profile)

Ernest Miller
( Archive | Home )

Elizabeth Rader
( Archive | Home )

Jason Schultz
( Archive | Home )

Wendy Seltzer
( Archive | Home | Technorati Profile )

Aaron Swartz
( Archive | Home )

Alan Wexelblat
( Archive | Home )

About this weblog
Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.

What Does "Copyfight" Mean?

Copyfight, the Solo Years: April 2002-March 2004

COPYFIGHTERS
a Typical Joe
Academic Copyright
Jack Balkin
John Perry Barlow
Benlog
beSpacific
bIPlog
Blogaritaville
Blogbook IP
BoingBoing
David Bollier
James Boyle
Robert Boynton
Brad Ideas
Ren Bucholz
Cabalamat: Digital Rights
Cinema Minima
CoCo
Commons-blog
Consensus @ Lawyerpoint
Copyfighter's Musings
Copyfutures
Copyright Readings
Copyrighteous
CopyrightWatch Canada
Susan Crawford
Walt Crawford
Creative Commons
Cruelty to Analog
Culture Cat
Deep Links
Derivative Work
Detritus
Julian Dibbell
DigitalConsumer
Digital Copyright Canada
Displacement of Concepts
Downhill Battle
DTM:<|
Electrolite
Exploded Library
Bret Fausett
Edward Felten - Freedom to Tinker
Edward Felten - Dashlog
Frank Field
Seth Finkelstein
Brian Flemming
Frankston, Reed
Free Culture
Free Range Librarian
Michael Froomkin
Michael Geist
Michael Geist's BNA News
Dan Gillmor
Mike Godwin
Joe Gratz
GrepLaw
James Grimmelmann
GrokLaw
Groklaw News
Matt Haughey
Erik J. Heels
ICANNWatch.org
Illegal-art.org
Induce Act blog
Inter Alia
IP & Social Justice
IPac blog
IPTAblog
Joi Ito
Jon Johansen
JD Lasica
LawMeme.org
Legal Theory Blog
Lenz Blog
Larry Lessig
Jessica Litman
James Love
Alex Macgillivray
Madisonian Theory
Maison Bisson
Kevin Marks
Tim Marman
Matt Rolls a Hoover
miniLinks
Mary Minow
Declan McCullagh
Eben Moglen
Dan Moniz
Napsterization
Nerdlaw
NQB
Danny O'Brien
Open Access
Open Codex
John Palfrey
Chris Palmer
Promote the Progress
PK News
PVR Blog
Eric Raymond
Joseph Reagle
Recording Industry vs. the People
Lisa Rein
Thomas Roessler
Seth Schoen
Doc Searls
Seb's Open Research
Shifted Librarian
Doug Simpson
Slapnose
Slashdot.org
Stay Free! Daily
Sarah Stirland
Swarthmore Coalition
Tech Law Advisor
Technology Liberation Front
Teleread
Siva Vaidhyanathan
Vertical Hold
Kim Weatherall
Weblogg-ed
David Weinberger
Matthew Yglesias

LINKABLE + THINKABLE
AKMA
Timothy Armstrong
Bag and Baggage
Charles Bailey
Beltway Blogroll
Between Lawyers
Blawg Channel
bk
Chief Blogging Officer
Drew Clark
Chris Cohen
Crawlspace
Crooked Timber
Daily Whirl
Dead Parrots Society
Delaware Law Office
J. Bradford DeLong
Betsy Devine
Dispositive
Ben Edelman
EEJD
Ernie the Attorney
FedLawyerGuy
Foreword
How Appealing
Industry Standard
IP Democracy
IPnewsblog
IP Watch
Dennis Kennedy
Rick Klau
Wendy Koslow
Kuro5hin.org
Elizabeth L. Lawley
Jerry Lawson
Legal Reader
Likelihood of Confusion
Chris Locke
Derek Lowe
Misbehaving
MIT Tech Review
NewsGrist
OtherMag
Paper Chase
Frank Paynter
PHOSITA
Scott Rosenberg
Scrivener's Error
Jeneane Sessum
Silent Lucidity
Smart Mobs
Trademark Blog
Eugene Volokh
Kevin Werbach

ORGANIZATIONS
ARL
Berkman @ Harvard
CDT
Chilling Effects
CIS @ Stanford
CPSR
Copyright Reform
Creative Commons
DigitalConsumer.org
DFC
EFF
EPIC
FIPR
FCC
FEPP
FSF
Global Internet Proj.
ICANN
IETF
ILPF
Info Commons
IP Justice
ISP @ Yale
NY for Fair Use
Open Content
PFF
Public Knowledge
Shidler Center @ UW
Tech Center @ GMU
U. Maine Tech Law Center
US Copyright Office
US Dept. of Justice
US Patent Office
W3C


In the Pipeline: Don't miss Derek Lowe's excellent commentary on drug discovery and the pharma industry in general at In the Pipeline

Copyfight

« Speaking of Which... | Main | Notable + Quotable »

February 19, 2005

How Does Your EULA Suck?

Email This Entry

Posted by

Annalee Newitz counts the ways in a brilliant new white paper that provides example after example of stomach-turning end user license agreements (EULAs), explaining precisely how raw the deal is for anyone who clicks "I agree." Below, the paper's list of common EULA terms. You'll get the gist, but do read the whole thing. It's a pleasure to read (but for the stomach-turning part).

Excerpts [formatting and emphasis, mine]:


  • 1. Do not criticize this product publicly. Snip: "Many agreements on database and middleware programs forbid the consumer from comparing his or her product with another and publicly criticizing the product. ...Not only do terms like these prevent people from engaging in free speech, they also undermine fair competition in the marketplace. Microsoft, for example, can publish benchmarks comparing its database products to open source alternatives. And yet their EULA terms suggest that the authors of open source products cannot publish the results of their own comparisons. What this means is that the only information consumers have access to is extremely one-sided and potentially biased."
  • 2. Using this product means you will be monitored. Snip: "Many products come with EULAs with terms that force users to agree to automatic updates -- usually by having the computer or networked device contact a third party without notifying the consumer, thus potentially compromising privacy and security. ... Agreeing to [a McAfee EULA] seems to mean you may be a McAfee subscriber forever: "Upon expiration of your subscription to the Software, the Company may automatically renew your subscription to the Software at the then prevailing price using credit card information you have previously provided."
  • 3. Do not reverse-engineer this product. Snip:" 'Reverse-engineering,' which is often forbidden in EULAs, is a term for taking a machine or piece of software apart in order to see how it works. ...Without reverse-engineering, consumers are unable to tailor software and devices to their liking -- they can't create a custom version of a gadget so that it can work with other electronics they own. They can't turn off features that they don't like. Even worse, EULAs that forbid reverse-engineering also threaten healthy competition in the marketplace by forbidding people from creating innovative new products that enhance older ones."
  • 4. Do not use this product with other vendors' products. Snip: "Vendors use EULAs to make consumers agree that they won't use products that evaluate the performance of the software they've bought, or that can be used to uninstall all or part of the program. ...Kazaa echoes these terms when it warns users that they can't use products that might 'monitor or interfere' with the operations of Kazaa's software...What this means is that you can't run any programs (like packet sniffers) that analyze the performance of Kazaa, evaluate what it's doing, or change the way it operates on your computer. Kazaa reserves the right to tell you what you can and cannot do with the program on your own machine."
  • 5. By signing this contract, you also agree to every change in future versions of it. Oh yes, and EULAs are subject to change without notice. Snip: "Put simply, this means that when you install iTunes, you are not only agreeing to all the onerous terms in the box, but you are also agreeing to future terms that may appear in the iTunes Terms of Service months or years from now. These terms are subject to change without notice, and you don't even get a chance to click through this future 'contract' and agree."

  • 6. We are not responsible if this product messes up your computer. Snip: "Clicking yes on EULAs containing this common clause means that the consumer cannot file class-action lawsuits against the vendor for faulty products, or for products that do not do all the things that the company advertised they would. This kind of agreement would seem absurd if applied to other kinds of consumer electronics. If you buy a microwave, there's a large body of common law and statute that gives you rights against its manufacturer if it blows up, burns you, or singes your countertop. ... But if you buy a piece of software, the EULA often disclaims all that prior law, without putting alternate consumer protections in its place."

Comments (5) + TrackBacks (0) | Category: IP Abuse


COMMENTS

1. Rolo Timassie on February 19, 2005 4:58 PM writes...

You categorize this issue as "IP Abuse," but it really has nothing to do with IP or software and everything to do with standard form contracts. Take a look at the terms and conditions that come with your refrigerator, or with your bank account, or your credit cards, your rental car agreement, the do-it-yourself bookcase you just bought, your TV set, your clock radio. They've all got stuff like this, and you agreed to it when you bought the item and took it home and used it.

Permalink to Comment

2. Donna Wentworth on February 19, 2005 5:52 PM writes...

Excellent point.

Permalink to Comment

3. Seth Finkelstein on February 19, 2005 8:28 PM writes...

Rolo: It's an IP-abuse issue to the extent that copyright law is used to create what would otherwise be an unimposable restriction, via the "legal hack" of this-is-licensed-not-sold.

The last time I looked, my clock radio did not come with a notice saying "This Appliance is *rented*, not *sold*, and by plugging it in, you agree to the following ..." (though I wouldn't be surprised if companies begin to try that!). In general, for mass-market goods, the most they can get away with in that area is limited warranties, and sometimes not even that.

There's form contract issues, true - but there's also contract of adhesion issues, which shouldn't be assumed valid (though are sadly being ruled valid :-( ...).

Permalink to Comment

4. Donna Wentworth on February 20, 2005 1:53 PM writes...

As Rolo says, this is about contract. But as Seth points out, it's about contract where it intersects/jousts with intellectual property rights. Two issues: are these/should these contracts be upheld as valid; can these/do these contracts trump federal copyright law?

Permalink to Comment

5. Neo on February 21, 2005 12:48 AM writes...

Aren't such EULAs grounds for revocation of the software's copyright? Isn't there a doctrine of "copyright abuse" where it's unlawful to levy terms and conditions of access to a copyrighted work that expand your rights far beyond what copyright itself would give you? And the penalty can be loss of the copyright?

Most EULAs attempt to enforce restrictions that go way beyond what copyright alone would allow. Censorship clauses for example. There are noncommercial clauses that don't just disallow people selling copies of software on compilation CDs, but disallow people selling *their own creative works* if they used the software to create them -- works in which the software author has no plausble claim of rights, and therefore under copyright law alone couldn't restrict or control. These overreaching EULAs look like textbook definitions of copyright abuse because the EULAs are presented as terms and conditions of access to a copyrighted work.

Why is the doctrine of copyright abuse not being applied?

Permalink to Comment


EMAIL THIS ENTRY TO A FRIEND

Email this entry to:

Your email address:

Message (optional):




RELATED ENTRIES
CBS to HBO: Wait for Us!
Sometime Next Year, HBO Will Become Netflix
OpenMedia vs the TPP
CopyrightX 2015 (online course) Now Open
College Students vs Rising Textbook Prices
"Amazon is crowdsourcing their slush pile"
Rule 84 and Patent Trolls
Sports Continue to Tiptoe Away from Cable Monopolies