Linked by Thom Holwerda on Fri 20th Feb 2009 12:28 UTC
Legal An interesting story is making it rounds across the internet the past few days about someone who made a system to get his cat to agree to the EULAs she was presented with. While that's just a funny joke, it does raise a very interesting point: if person A agrees to an EULA, does its power extend to person B?
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Um, No
by tjolley on Fri 20th Feb 2009 12:57 UTC
tjolley
Member since:
2006-03-14

CAR ANALOGY!!

If I sign an agreement to pay for a car, my partner is not obligated to pay on that loan.

If a parent dies, the adult children are not legaly obligated to pay thir parents bills. If an adult child dies, the parents are not legally obligated to pay off thier bills. (Assumes no co-signor agrements exist in these examples)

This extends to all agreements and contracts. You do not have the right, nor can you, obligate another person to abide by any agreement you decide to enter into.

Reply Score: 3

RE: Um, No
by Buck on Fri 20th Feb 2009 13:10 UTC in reply to "Um, No"
Buck Member since:
2005-06-29

If a parent dies, the adult children are not legaly obligated to pay thir parents bills.

That's not true. I know if the offspring want to claim the property of their deceased parent they're also legally obligated to accept to pay any outstanding debts among other things. This may not be true for every country but it's nonetheless a known practice in some others.

Edited 2009-02-20 13:11 UTC

Reply Score: 2

RE[2]: Um, No
by tjolley on Fri 20th Feb 2009 14:03 UTC in reply to "RE: Um, No"
tjolley Member since:
2006-03-14

That's not true. I know if the offspring want to claim the property of their deceased parent they're also legally obligated to accept to pay any outstanding debts among other things. This may not be true for every country but it's nonetheless a known practice in some others.


That is common sense. Of course if the offspring want to keep the property they will have to pay off any outstanding debts on it. However, the creditor cannot force the offspring to take on the debt.

Marriage not withstanding, when I sign a contract, I am the only one obligated to abide by the terms of the agreement. Whomever I signed the agreement with cannot force any other individual to take on that obligation.

Reply Score: 3

RE[3]: Um, No
by Thom_Holwerda on Fri 20th Feb 2009 14:09 UTC in reply to "RE[2]: Um, No"
Thom_Holwerda Member since:
2005-06-29

Marriage not withstanding, when I sign a contract, I am the only one obligated to abide by the terms of the agreement. Whomever I signed the agreement with cannot force any other individual to take on that obligation.


Exactly, which is why it is important to find out the legal status of EULAs in your country.

In mine, as I investigated, they are regarded legally as "terms of use", which in my country means I don't have to agree to them, nor do I have to sign anything. Legally, terms of use covering use of a product are automatically agreed upon.

Terms of use just need to be available for viewing, that's all.

That, of course, does not mean that an EULA itself is always *valid*. Clauses may still be invalid, terms of use or not.

Reply Score: 1

RE[4]: Um, No
by dmantione on Fri 20th Feb 2009 17:52 UTC in reply to "RE[3]: Um, No"
dmantione Member since:
2005-07-06

You need to place that in proper context. There is Artikel 45j Auteurswet, if you can rely on that, you do not need an EULA to use a program. If you cannot rely on art. 45j, you need a license to use the program. Only in that case, the license can be viewed as "terms of use".

Now many EULA's use "licensed, not sold" nonsense. Namely, you have a sales agreement (koopovereenkomst) with the shop you bought your software. An EULA cannot change the fact that there is a sales agreement, thus most software is "sold, not licensed". The fact of the matter is, that if you bought it, art. 45j applies to you: You can use your property as you wish then.

Reply Score: 1

RE: Um, No
by lindkvis on Fri 20th Feb 2009 16:23 UTC in reply to "Um, No"
lindkvis Member since:
2006-11-21

"CAR ANALOGY!!

If I sign an agreement to pay for a car, my partner is not obligated to pay on that loan. "

Eh.. if you are married, then yes, your partner is obligated to pay your loan. This is because you are (in terms of property and debt) to be considered one person. Historically a lot of women have got into trouble due to debts their husbands stacked up and wasted on alcohol and gambling. This can (and does) still happen.

Your children inherit your obligations if they choose to accept your inheritance, although in most countries they have no obligation to do so. However, if they wish to inherit your house, they will also inherit your debts.

Reply Score: 1

RE[2]: Um, No
by tjolley on Fri 20th Feb 2009 18:32 UTC in reply to "RE: Um, No"
tjolley Member since:
2006-03-14

"CAR ANALOGY!!

If I sign an agreement to pay for a car, my partner is not obligated to pay on that loan. "

Eh.. if you are married, then yes, your partner is obligated to pay your loan. This is because you are (in terms of property and debt) to be considered one person. Historically a lot of women have got into trouble due to debts their husbands stacked up and wasted on alcohol and gambling. This can (and does) still happen.


Which is why I specifically said 'partner' and not 'spouse'. Everyone knows, or should know, that if you are married, you are one legal financial entity for debts as well as assets.

Your children inherit your obligations if they choose to accept your inheritance, although in most countries they have no obligation to do so. However, if they wish to inherit your house, they will also inherit your debts.


Again common sense rules here. If you want to inherit an asset, you obviously inherit the debt. I don't think there is anyone with an ounce of common sense who would think "The parents are dead, all thier debts are magically wiped out, and we get all the property free and clear with no financial obligations".

Reply Score: 1

RE: Um, No
by DrillSgt on Fri 20th Feb 2009 16:28 UTC in reply to "Um, No"
DrillSgt Member since:
2005-12-02

"If I sign an agreement to pay for a car, my partner is not obligated to pay on that loan."

Actually, if you are married, you are legally responsible for your spouses debts. That includes hospital bills, taxes, credit card debt, car loans, etc. So yes, they would be obligated.

Reply Score: 2

RE[2]: Um, No
by tjolley on Fri 20th Feb 2009 18:35 UTC in reply to "RE: Um, No"
tjolley Member since:
2006-03-14

"If I sign an agreement to pay for a car, my partner is not obligated to pay on that loan."

Actually, if you are married, you are legally responsible for your spouses debts. That includes hospital bills, taxes, credit card debt, car loans, etc. So yes, they would be obligated.


You are absolutley 100% correct, but partner =! married spouse.

It's a social issue difference thing. Not everyone lives in a country where you are legally allowed to marry your partner.

It sucks, but that's the way it is for now.

Reply Score: 1

Isn't this a bit too far-fetching?
by Buck on Fri 20th Feb 2009 13:07 UTC
Buck
Member since:
2005-06-29

This is woolly thinking. You miss the general picture by applying extreme attention to details - who clicked, who walked over the button and some such. Logically the EULA still applies to anyone using any product, having someone else agree with it just sounds like a loophole nothing else. However in practice it's hard to enforce.
However leaving that aside, let's have a discussion about what you think a user can and can't do with a software he or she purchased. Can we make copies of it? Can we install it on as many systems as we wish? It would be interesting to know.

Reply Score: 4

Won't hold up in court?
by PowerMacX on Fri 20th Feb 2009 13:07 UTC
PowerMacX
Member since:
2005-11-06

It also says "by using you agree" but that won't hold up in court in this case, since someone wandering into my apartment and using my computer will not be presented with said EULA, nor will he know what software he's using.


If a travel to a different country and I break some to me unknown law, I can't use the fact that I didn't know about that particular law as a valid defense, can I?

Reply Score: 3

RE: Won't hold up in court?
by Thom_Holwerda on Fri 20th Feb 2009 13:15 UTC in reply to "Won't hold up in court?"
Thom_Holwerda Member since:
2005-06-29

If a travel to a different country and I break some to me unknown law, I can't use the fact that I didn't know about that particular law as a valid defense, can I?


EULA != law.

Reply Score: 4

RE[2]: Won't hold up in court?
by PowerMacX on Fri 20th Feb 2009 16:02 UTC in reply to "RE: Won't hold up in court?"
PowerMacX Member since:
2005-11-06

EULA != Law


It was an analogy ;-) The point was that ignorance is no defense.

But, in any case, wouldn't an EULA fall under contract law?

Reply Score: 2

RE: Won't hold up in court?
by dada296 on Fri 20th Feb 2009 13:39 UTC in reply to "Won't hold up in court?"
dada296 Member since:
2009-02-20

By entering the country you have accepted the EULA of said country.

Reply Score: 1

RE: Won't hold up in court?
by KrustyVader on Fri 20th Feb 2009 22:40 UTC in reply to "Won't hold up in court?"
KrustyVader Member since:
2006-10-28

That depend of the country you are, in Argentina by law all citizen knows all the laws (something that's impossible). It means if you break a law that you didn't know that exist you are judge as if you knew it. An can be use as excuse.

Reply Score: 1

No idea, but..
by -APT- on Fri 20th Feb 2009 13:34 UTC
-APT-
Member since:
2007-03-20

Certain MMORPGs make you agree to an EULA or Code of Conduct every time you start the game to ensure that you've agreed to the license.

I can just imagine this happening with other software due to that evil cat accepting an EULA!

Reply Score: 1

But in practice...
by neowolf on Fri 20th Feb 2009 13:52 UTC
neowolf
Member since:
2005-07-06

While this scenario certainly makes for an interesting debate on raw technicality, it also seems like the sort of wankery that a judge would laugh at in the first place and throw out imeddiately. Trying to using a cheap trick to avoid a contract is still a cheap trick no matter how convolouted your means.

Reply Score: 3

Is EULA enforceable in the first place?
by spiderman on Fri 20th Feb 2009 14:21 UTC
spiderman
Member since:
2008-10-23

In my country, even if I click on the 'I agree' button, it is not equal to signing a contract. An actual contract must be dated and hand signed and in some cases, you need a third party to actually validate the contract (like when selling land property and such).
The cat does not matter here. The EULA is just void, especially since most of the time it is not even translated in my language! A contract in english has no value in my country.
There are copyright laws, and they are enforceable, but that's all. They can write anything in the EULA, it does not matter. When they translate 'EULA' in my language, it becomes "Informations l├ęgales" (Legal Informations), it's not an agreement anymore.
And the copyright laws say explicitely that I have the right to copy the software as a backup and several other things that are usually against the so called EULA.
We don't have software patents either.

Edited 2009-02-20 14:30 UTC

Reply Score: 2

Googol Member since:
2006-11-24

which country is that?

Reply Score: 2

spiderman Member since:
2008-10-23

France

Reply Score: 1

FBI Warning
by FunkyELF on Fri 20th Feb 2009 14:24 UTC
FunkyELF
Member since:
2006-07-26

I just need to know if my cat can watch and read the FBI warnings at the beginning of DVDs for me.

I don't think those will ever hold up in court either. They make it so you can't fast forward over them but you also can't pause them. I'm a slow reader... never made it all the way through. I usually only get past FBI Warning.

Reply Score: 2

RE: FBI Warning
by gfx1 on Sat 21st Feb 2009 17:30 UTC in reply to "FBI Warning"
gfx1 Member since:
2006-01-20

You can however copy the main feature film from a dvd with dvdshrink and play that one.
I have some dvd's with such an obnoxious intro that I usually play the copied version

Reply Score: 1

Dutch law
by Eerde on Fri 20th Feb 2009 14:52 UTC
Eerde
Member since:
2008-06-23

"Back when I conducted my little investigation into the legality of EULAs in The Netherlands, several legal experts concluded that clicking "I agree" is a valid means to acknowledge an EULA."


The Dutch lawyers forgot to mention that any EULA or sales conditions even when deposited, have no value where they violate Dutch (consumer) law.
Sign anything you want, but the (Dutch) law prevails.

Edited 2009-02-20 14:54 UTC

Reply Score: 2

RE: Dutch law
by Thom_Holwerda on Fri 20th Feb 2009 15:12 UTC in reply to "Dutch law"
Thom_Holwerda Member since:
2005-06-29

The Dutch lawyers forgot to mention that any EULA or sales conditions even when deposited, have no value where they violate Dutch (consumer) law.
Sign anything you want, but the (Dutch) law prevails.


Individual clauses may always be declared unlawful, of course. However, one improper clause does not negate the entire contract/EULA/terms of use.

Reply Score: 1

RE[2]: Dutch law
by lindkvis on Fri 20th Feb 2009 16:27 UTC in reply to "RE: Dutch law"
lindkvis Member since:
2006-11-21

How about if an EULA is presented AFTER a purchase? I believe in most European countries the EULA is then void, because you can not present further terms to a purchase once that purchase is completed. I'd be surprised if Holland is any different.

As for downloads where you haven't paid anything, they may well be binding. And very likely if they were presented before you downloaded.

Reply Score: 1

RE[3]: Dutch law
by Thom_Holwerda on Fri 20th Feb 2009 16:43 UTC in reply to "RE[2]: Dutch law"
Thom_Holwerda Member since:
2005-06-29

I'd be surprised if Holland is any different.


Agreeing is not required. They are terms of use, and are binding no matter if you agree or not.

Reply Score: 1

RE[3]: Dutch law
by dmantione on Sat 21st Feb 2009 08:22 UTC in reply to "RE[2]: Dutch law"
dmantione Member since:
2005-07-06

Holland is not any different. The whole story comes from the Art45j, which is not entirely clear how it needs to be interpreted. It says that if you acquire a piece of software legally, you also have permission to load the program and bring it on the screen.

There are some lawyers that say that acquiring means purchasing something physical. As software is necessary something physical, Art45j may not apply in all cases, thus you need copyright permission to load and bring up a program on your screen, thus the EULA is valid, even if you disagree (same copyright permission that the GPL uses, if you don't agree you have no permission at all). Buying a software then means nothing, as it it doesn't give you copyright permission to use it, you still need to acquire that via the EULA. Getting that permission by agreeing to terms is legally valid. The license gets then the legal status "terms of use" because it is valid for all users, and is not an individual, personal agreement. A status "terms of use", rather than "contract", invokes some extra consumer protection law.

However, this interpretation is rather (extremely?) dubious. A much more sane interpretation is that if you have bought a program, you have legally acquired it and therefore got, by art45j, the permission to use it. An EULA then equals to adding additional terms to the sales agreement, which is impossible in Holland just like in other places.

Reply Score: 1

metaph3r
Member since:
2006-09-07

I think the interesting point here is what would happen if multiple users use the same computer. For example I have a computer which the whole family uses. If I install a software and agree to the EULA would this be legally binding (granted the the EULA is legally binding in the first place) to other family members who use this software and are not presented the dialog to accept the EULA again.

Maybe that is the cause why some software is not running with restricted rights with multiple users on XP ;-)

Reply Score: 1

This doesn't even make sense
by B. Janssen on Fri 20th Feb 2009 16:07 UTC
B. Janssen
Member since:
2006-10-11

Still, the point made is an interesting one, and it might very well be possible that you could convince a judge this way.


Well, maybe in Stupid-Land on Planet Doofus...
Animals are not persons in a legal sense and cannot execute a declaration of intent. Therefore they can neither accept or decline an EULA. I would be really surprised if this isn't universal in all established law systems world wide.

I know, legislators, judges and lawyers are not very much respected in IT environments, but please, give these people some credit!

With regards to third parties using software they didn't buy and didn't read the EULA, I would like to point out the foundation on which many IP violation lawsuits are declined -- the plaintiff can't prove beyond a doubt that the defendant is the perpetrator, because many other people may have had access to the computer.

Edited 2009-02-20 16:10 UTC

Reply Score: 2

I'm calling the ASPCA
by whartung on Fri 20th Feb 2009 16:55 UTC
whartung
Member since:
2005-07-06

What kind of sicko inflicts EULA's on their poor, innocent cat?

That has to fall under animal cruelty somewhere!

Reply Score: 4

RE:eula=law
by jdusablon on Fri 20th Feb 2009 18:57 UTC
jdusablon
Member since:
2008-02-01

1. An EULA is not a contract, it is an agreement. I can create any kind of EULA and place it as a gateway to my software or my house or whatever, but there is no prescribed format for the EULA. I can put any terms I want in it and I don't even have to sign it. A contract, on the other hand, is legally binding and therefore had a prescribed format and required information obligations.

2. Some countries do consider a EULA to have legal weight, but I don't believe any law equates a EULA to a contract directly.

3. The point of the cat, the button and the EULA is moot (and silly) because the legality behind the EULA is unenforceable.... if the user is sued by Adobe, the user cannot sue the cat.

Everyone reading osnews.com knows full well that ownership of a computer CAN be legally verified and we all know the implications and responsibilities of that ownership.

Just because a ball hit your keyboard and "made you" agree to installing software does not exempt you from the responsibility of having agreed to the EULA.

For the same reason, one does not leave one's laptop lying around a subway terminal, even if one has no personal information on it.

Reply Score: 1

In Belgium an EULA is not valid
by cropr on Fri 20th Feb 2009 19:45 UTC
cropr
Member since:
2006-02-14

Although it has never being brought to court, an EULA in its current form is illegal in Belgium. Clicking "I agree" is seen as an imposed agreement by the selling party and has legally no value. In other words, if you buy a software package in a shop, all conditions attached to the sale should be known at the moment of the sale. Presenting an EULA when you start/install the software is too late.

A nice analogy given by the lawyer who learned me this, is a newspaper where there is printed on the first page: 'by turning the 1st page of this newspaper you agree to ...'.

Of course all legislation about copyrights remains valid, so you cannot start copying the software.

If the customer would be shown the EULA in the shop, before he decides to buy, there is no issue

Reply Score: 1

Interesting thought
by Ressev on Fri 20th Feb 2009 20:17 UTC
Ressev
Member since:
2005-07-18

It is an interesting thought: get someone/something else to agree to a contract so you can use it without obligation.

I think IMNSEO the legal system would view this as agreement by proxy. Implicit in the example of the woman having her cat "agree" is the woman's intent on having someone else agree for their use. Therefore, by proxy, she has agreed to the EULA. Evidence of this is demonstrated by her creating a means for the cat to agree as well as getting the cat to perform the action of agreement.

It is no different than having someone officially represent me with regards to agreements.

Reply Score: 1

Yeah...
by UltraZelda64 on Sat 21st Feb 2009 13:24 UTC
UltraZelda64
Member since:
2006-12-05

"Can Your Cat Agree to an EULA?"

Yes... and I don't even need to waste five minutes making a special cardboard cutout. I have a typical desktop setup, a cat who likes to sit on my lap, and the keyboard drawer rolls out at about lap height. It almost never fails; due to the size and placement of the space bar, he almost always hits it when he lays down. If I happen to be on some site or have some program asking me to agree, he'd most definitely do the job... without my interference whatsoever.

Really though, I thought the whole article was stupid in the first place... almost as stupid as EULAs themselves.

Reply Score: 2

Computer labs
by holizz on Sun 22nd Feb 2009 07:19 UTC
holizz
Member since:
2006-08-21

When I use software in the lab that's all been agreed to by somebody else, am I legally obliged to follow the EULA? Even by Dutch law, it seems, I would not as the EULA/TOS isn't even viewable after agreeing to it in most cases (so you don't agree to it in the first place, and then you can never read it, essentially making it secret, not that there aren't laws like that).

Not that I care. When EULAs appear on lab computers, I don't actually agree, I just click a button labelled "I Agree" that makes the software work. I'm sure the law disagrees with me, but I disagree with the law.

Reply Score: 1

More interesting
by 3rdalbum on Sun 22nd Feb 2009 08:18 UTC
3rdalbum
Member since:
2008-05-26

When you buy a computer that's already been used for display at the shop, you don't get shown a copy of the Windows EULA, because the people at the shop have already clicked the "I Agree" button.

The people at the shop haven't told you about the EULA either.

Are you still subject to the contract, having neither been shown a copy nor asked to comply with it?

Reply Score: 1

Typo!
by abraxas on Sun 22nd Feb 2009 14:58 UTC
abraxas
Member since:
2005-07-07

if person A agrees to an EULA, does its power extend to person B?


It should read:

if cat A agrees to an EULA, does its power extend to person B?

Reply Score: 2

Isn't it similar to the GPL?
by IkeKrull on Sun 22nd Feb 2009 21:33 UTC
IkeKrull
Member since:
2006-01-24

Supposedly, nothing except the EULA gives you the right to use the software - when you purchased the product, you got a CD, a copy of the binaries, and possibly source code etc. but did not specifically purchase a license to use that software.

Agreeing to the EULA offers you the right to use the software, subject to some terms - in the absence of an EULA you have agreed to, you are breaking copyright law by using the software.

So, in the software companies eyes, you have either agreed to the EULA and are using the software legitimately, or you have not agreed and are a pirate.

This is very similar to the GPL - the only thing that gives me the right to redistribute GPLed software is the GPL - if i don't agree to, or choose to violate the GPLs terms, There is nothing else permitting me to take these actions.

If you get your cat to agree to the EULA, you are technically breaking copyright law by using the software you 'purchased'.

Reply Score: 1

RE: Isn't it similar to the GPL?
by UltraZelda64 on Mon 23rd Feb 2009 10:34 UTC in reply to "Isn't it similar to the GPL?"
UltraZelda64 Member since:
2006-12-05

Agreeing to the EULA offers you the right to use the software, subject to some terms - in the absence of an EULA you have agreed to, you are breaking copyright law by using the software.

So, in the software companies eyes, you have either agreed to the EULA and are using the software legitimately, or you have not agreed and are a pirate.

I must be one hell of a pirate then, because I never bothered to actually waste my time trying to read and comprehend that legalese mumbo jumbo. Therefore, how could I have actually "agreed?" I just clicked "Agree" to actually be able to *use* something I had actually... get this... *bought* in the first place.

There was never any other differently-worded button available to actually use the software; disagree always ends up with a "sorry, go get a refund... if you can! Hahaha!" Cancel is pretty much the same. As far as I'm concerned, I "agreed" to use something I actually paid for and bought in the first place. Something the store would likely give me a hard time refunding, because it's already been opened and used... just to get to the EULA!

Not to mention, I've done this whole "Agree" thing while not even an adult yet... so what can they say? Apparently nothing, because they didn't. I never did, and never will, take EULAs seriously.

Reply Score: 2

IkeKrull Member since:
2006-01-24

If you had broken one or more of the EULAs provisions and it came to a court case, then yes, you would probably be branded 'one hell of a pirate'. If you were a minor, your parents would likely end up branded the same.

Do you think that if you are a minor, you can simply ignore licenses like the GPL? Neither the EULA or the GPL are contracts, but you have no right to redistribute GPL software without complying with the GPL, and suppposedly you have no right to use EULA'd software without complying with the EULA.

I don't see why this is a difficult concept to grasp.

Do companies overreach with the terms in the EULAs? Yes, of course - but if everyone just blindly clicks yes instead of taking it back and demanding a refund then the whole situation just perpetuates itself.

Does it seem a little wrong that purchasing a software product does not include the unlimited right to use it? Sure, but this position can be backed up by copyright law as it is written in most western nations.

Reply Score: 1

Laws are for lawyers.
by Bounty on Tue 24th Feb 2009 01:01 UTC
Bounty
Member since:
2006-09-18

I started writing a long blurb... I think I'll just switch back to my title. Laws are for lawyers.

Reply Score: 1