Talk:End-user license agreement

FIXME

I don't know much about law, but that (FIXME) thing has to go. --cprompt

I've removed the (FIXME) tags, I don't know if I could have been more specific but the change covers what was originally missing. -- Al b

Enforceability

The enforcebilty of these license is actually in dispute see New York v. Network Associates d/b/a McAfee Software, SoftMan v. Adobe, Novell, Inc. v. CPU Distrib., Inc., Vault v. Quaid, Step-Saver Data Systems, Inc. v. Wise Technology, about 2 or three dozen cases where a sale of software is consider a sale under the UCC, and there is much more.

The enforcibilty in the U.S., if enforceble at all, of such shrink wrap licenses depends on three factors;

1. Does the license pre-empt first amendment garantees and other garantees under the US Constition, EG; does it restrict your freedom of speech such as in Network Associates where the EULA didn't allow users to write disparanging, but true, things about the software.

2. Does the license pre-empt federal law Eg; Copyright law See Softman V. Adobe. . Remember with the exception of the GPL and other free licenses it is a contract, State Law, as you did not purchase the software- See Step-Saver Data Systems v. Wise Technology, Mai, and Microsoft v. Harmony to see why software is licensed and not sold (To Basically Pre-Empt first sale doctrine and other limitations and excemptions to copyright). Depending on which court the case is heard in the Judge may or May not allow the argument that Contract Law can Supercede Federal Law. SCO v. IBM is a paradox becuase they are arguing both ways. They argue, not that this is correct, that the GPL is unenforcable becuase the the FSF through the GPL and not Congress dictated the terms thus any works released under the GPL is in Public Domain through the principles of Latches while at the same time arguing that IBM can not give code to the Open and Free Source comunities, in paticular the Linux communities, becuase the contract between ATT and IBM has a derivitive cluase in it.

3. Does the License conform to UCC or where passed UCITA for a contract.

A side note is that these contracts are challanged, sometimes sucessfully, all the time.

Also may be a good idea to write about the history of these licenses and also point out that the term Use, as in the AT&T license on Unix is very different on lets say teh MS Windows EULA.

Finaly should the stub EULA article be merged with this one, whic is not so much a stub.

Agreements vs. licenses

All the documents I have seen that call themselves `EULA's are agreements* (not licenses). Whereas the document says a `EULA' is a type of license. Should this not be rectified. Also, maybe point out that the word has no agreed on definition (and certainly is not a techinical legal word), therefore is used in various different ways by different people.

[* Ones that, yes, are actually probably invalid in most jurisdictions, including, as I understand it, the EU; but, nonetheless, they attempt to be agreements between two parties as opposed to a one-way grant of permission.]

--Joe Llywelyn Griffith Blakesley 14:23, 2004 Nov 12 (UTC)

I agree, this article confuses a software license with the agreement that grants a software license. I think one thing that makes this confusing is the confusion between a license limitation and a an agreement which grants license. A license can be unilateral. Violating the license limitations just means the license grant is null and void. An agreement is a contract that requires consent of two parties. Violating the agreement is a contract violation. -- Seitz 19:32, 3 June 2006 (UTC)

EULAs as Licenses

EULAs must be agreed to or you usually cannot use the software, like a contract. Software licenses like the GNU GPL do not have to be agreed to, but if you do not then it defaults to 'regular' copyright with you losing all the benefits.

I think that the EULA should be put into its own seperate article, with this article discussing software licenses in general. --ShaunMacPherson 21:50, 1 Jun 2005 (UTC)

A license is formal authority to do something that would otherwise be unlawful and is usually used to grant the licensee the freedom or permission to do something that without the license would be illegal. They are a contractual mechanism with which the licensor seeks to control the use to which the artifact that they hold title to is put. Within Copyright law, the license is an accepted way for the copyright holder to grmat the permission or 'immunity from suit'(See Gen Talking Pictures Corp v W Elec Co 305 US 125 (1938)) for a particular artifact to be used or distributed without the title in property being transferred. It is important to note that some EULAs are valid and enforcable in different jurisdictions, even if terms contained within them are ruled unfair or invalid.

• It is wrong that an EULA must be agreed upon before one can use the software, because copyright is always applicable to computer programs according to the international copyright treaty, Article 4, and does not grant the copyright owner unlimited rights over the copy owner's normal use rights as well as other's fair use rights. Thus, the one that wants a EULA to take effect must demonstrate that the rights granted under copyright treaty and law already there can be revoked. The copyright owner has the rights over the distribution, but not over copy owner normal use rights. For example, the owner of a book has the right to read it anywhere or resell it, and the copyright owner has no control over that; computer programs are no different in this respect.

EULA vs Copyright licenses

I think these things are totally different, and this article confuses them. I think we should have a separate page about EULAs, and devote this page to copyright licenses, i.e. GPL, etc. At the very least I think the page should clearly say that 2 distinct kingdoms of software licenses exist. Trious 20:38, 21 December 2005 (UTC)

• I agree that, while the two are related, they are distinct. So I created a software license page to deal with software licenses, while this page can continue to deal with software license agreements. -- Seitz 15:31, 27 August 2006 (UTC)

• Licenses are subordinate to copyright treaty and law: According to the international copyright treaty, Article 4, copyright is always applicable to computer programs, and does not grant the copyright owner unlimited rights over the copy owner's normal use rights as well as other's fair use rights. Thus, copyright treaty and law always apply to computer programs, unless local law states otherwise, and the copyright owner does not have the right to unilaterally revoke the rights given to the copy owner and others: such a thing can only take place by a properly signed agreement. If there is not such properly signed agreement, copyright treaty and law is in effect.

• As for verifiablility, there are precedents from Stockholm, Sweden in the case of parking tickets, though not computer software: Originally parking tickets were issued to the driver, not the owner of the car. The reason is that it is the person performing an action that is legally responsible, i.e., the driver and not the car owner. So the owner of the car, when asked to pay the parking ticket, would merely remark not knowing who drove the car on the occasion. The collectors of the parking ticket then will have no-one to collect from, nor is the owner of the car obliged helping with that. So the law had to be changed, so that it is now the car owner that pays the parking ticket. But the law change only applies to public parking tickets: in the case of private parking lots, the issuer of a fine still has to demonstrate who drove the car on the occasion and issue the ticket to that person, as to show the driver is taking the law in his own hands (by parking on a private space where not is allowed to). This is in practice hard to achieve. - So, as for EULA's, this reasoning does not as such make these legally void: If the case goes to court, and the person claimed to be a licensee admits taking the action of acceptance, the court may decide that the EULA is valid. But if the person claims not knowing who took that acceptance action, like opening the box or clicking the acceptance box, there will be in general no-one to find accepting the EULA. In such a case, local copyright law applies. The international copyright treaty is important, because it lays out the principles by which local copyright law should abide to, though the latter often show discrepancies. But if local law does not explicitly say otherwise, the principles of the copyright treaty should apply. So the normal thing is that copyrightable material becomes automatically copyrighted without special registration. The EULA must demonstrate that this copyright already in place can be overridden.

Case citations

Could we perhaps replace the case/law numbers with links to online resources that have them? The current form is pretty ugly, and many people wouldn't find the jumble of numbers and letters useful (I can't figure out where to find "23 Colo. Law 1321.17", for instance, due to the characteristically awful construction of the Colorado state web page). —Simetrical (talk) 00:29, 21 Mar 2005 (UTC)

Okay, I've changed over a few, but there are still some I can't find online. —Simetrical (talk) 01:01, 21 Mar 2005 (UTC)

No acceptance?

"Free software licenses grant additional rights (such as the ability to copy) and need not be accepted to use the software" is incorrect. Read the GPL to see why. Superm401 | Talk 03:59, July 13, 2005 (UTC)

It's not incorrect. The GPL grants people rights over distribution that they would not normally have. To merely use the software you don't need to accept the GPL. The GPL is a copyright license, not an "EULA". Trious 20:32, 21 December 2005 (UTC)

Abandonware List?

Do we really want to be maintaining a (potentially huge) list of abandoned software in this article? Granted, theres only one item there currently, but the comment about appending all abandoned software... I can list 15, 20 things off the top of my head, and I could come up with several hundred if I actually looked for a bit... Tel Janin 01:33, 29 September 2005 (UTC)

Rest of world?

What's the situation with EULA validity in countries other than the U.S.? Demiurge 10:06, 24 October 2005 (UTC)

YOO-lah

Where is this pronunciation occurring? I haven't heard this here in Australia. Jayvdb 12:48, 2 August 2006 (UTC)

• I hear it quite frequently where I work in Silicon Valley. Seitz 15:27, 27 August 2006 (UTC)

Biased POV?

I think this article overstates the unenforceability of EULAs. A review of the literature reviews that there is little that distinguishes the enforceability of EULAs as comapared to contracts generally. In Step-Saver, the EULA was unenforceable because there was no indicia of acceptance (ie the agreement was written on the box and the user was not required to assent to it). ProCD is widely viewed as the controlling case.

• The latest addition to Software_license_agreement#Copyright makes a number of legal assertions and conclusions, without citing sources. Seitz 15:25, 27 August 2006 (UTC)

Merge with article "Software license"

I propose this article be merged with article "Software license". The point is emphasized by the fact that the acronym "EULA" redirects towards this article, while the improperly capitalized "Eula" will redirect to the "Software license" article, which contains very little information. Dominio 09:17, 9 October 2006 (UTC)

Oppose. I created the software license article specifically to make it clear that there is a difference between a software license and a software license agreement. -- Seitz 03:48, 12 October 2006 (UTC)