Philosophical Quandry: Piracy

[deccan]

Oooh, a philosophical discussion on the SEIV forum! My favorite kind! How come no one invited me!

*Grabs a soapbox and jumps into the discussion pit, accidentally knocking several people off-balance with armloads of books on law, morality and philosophy.*

Are EULAs really legal?

Originally posted by rdouglass:
I was just asking if anyone actually had evidence of a time where an EULA did NOT hold up (in the U.S. please - I know many things are OK in other contries).

And how well do you really think the defence "Well, I really didn't understand the fine print..." will hold up in court? In fact, a company in Texas was recently fined $173,000 for failing to comply with an EULA. If it was possible to circumvent the EULA, don't you think they would have tried?!?!?

Really? References please? I don't mean to imply that you're lying, simply that you might be mistaken. The case that you are referring to may have involved a more conventional paper agreement signed by the two parties, properly witnessed and advised by proper lawyers etc.

Here are some of mine:

A Growing Suspicion Over the Validity of Shrinkwrap Licensing: A Case Summary of SoftMan v. Adobe
http://216.239.41.104/search?q=Cache...hl=en&ie=UTF-8

Court: Network Associates can't gag Users
http://news.com.com/2100-1023-981228.html?tag=nl

Lawsuit challenges software licensing
http://news.com.com/2100-1001-983988.html

I note that the general consensus on this board is that EULAs are indeed indisputably legal. I think this reflects the generally accepted principle in Western society that agreements signed between two voluntary parties are legally enforceable. But this isn't really true. The law (i.e. legislation plus legal precedent) governs the kinds of agreements that can be enforced (agreements that sell people into slavery for example obviously aren't legal even if both parties agree), how they should be worded, under what kinds of conditions they can be enforced etc. pretty strictly. For example, under U.K. law, some kinds of agreements must be witnessed by a Commissioner of Oaths, some kinds of agreements must be made under seal and so forth. How else can lawyers earn their lavish fees?

The EULA is a relatively new and untested legal instrument. Until a history of cases is built up that precisely define the limits, practices, acceptable wordings and ways of signalling agreement etc. that govern EULAs, it's safe to say that EULAs are mostly there to intimidate Users.