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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.

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August 24, 2005

Pretty Please with Sugar on Top?

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My brand-new EFF colleague Corynne McSherry and consumer-rights advocate Ed Foster are tag-teaming to bring us the story of a company called Livingsoft that's decided to use its End User License Agreement (EULA) not only to interfere with first sale rights, but also to punish unhappy customers (see Corynne's piece here and Ed's here). The short of it: Livingsoft evidently allows customers who ask nicely to re-sell the product on eBay; those who don't like the product and say so, however, may not.

Explains Corynne, "[The company president told the customer that he] does sometimes grant permission to re-sell the software ..., but only if the seller has a physical or financial necessity (e.g., an injury or family financial crisis) and asks permission 'courteously' in advance, 'acknowledging that they are requesting a favor rather than demanding a right.'" [Ed.: like, oh, I dunno, the right of first sale?] This particular customer, on the other hand, had the temerity to complain that the software "sucks." Therefore, she would have to keep it forever.

As Ed points out, this is hardly an isolated incident. It's part of an ugly trend of companies using EULAs in arbitrary ways to undermine legitimate consumer rights. By including anti-consumer clauses in their click-wrap EULAs, companies like Livingsoft are forcing people to beg just to be treated fairly. Writes Ed:


[Whatever] restrictive language their attorneys want to the throw into a EULA is supposed to carry more weight than our traditional rights. Of course, if you ask real nice and acknowledge you have no rights of any kind, they may grant you a favor. I for one am deeply grateful for the favor Livingsoft has done us by providing such a stark example of how we can expect businesses of all kinds to treat their customers in the world to which we seem to be moving.

If you've had trouble selling software that sucks, you have people in your corner. EFF is gathering information to help people retain their rights in the face of these kinds of unfair EULAs. Send your story to softwarerights@eff.org -- and be sure to include a copy of the offending EULA. We may be able to help.

Comments (1) + TrackBacks (0) | Category: IP Abuse


COMMENTS

1. SFix on August 30, 2005 5:56 PM writes...

It would seem there is no such thing as a "Doctrine of First Sale" if it can be overridden with an EULA, which makes it seem that the EULA is invalid and unenforceable--except for one thing: EBay.

EBay is, perhaps, the primary secondary market for IP in the country but EBay's policy is to suspend used sales of IP at the behest of litigious IP holders like the Microsoft, Scientology and, presumably, Livingsoft.

There are no secondary sale rights for consumers if big businesses conspire to prohibit legal activities under the guise of protecting trademarks and copyrights.

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