OSNews

The EULA is not a contract, per se. It is a document describing the terms under which you are given the license you've purchased.

This is evidently not true in the US, and it is probably not true in other Anglo Saxon jurisdictions. In the case of Softman, the defendant had bought a copy of Adobe software. He then broke up the package and resold it one bit at a time. There was no claim that he had violated copyright by duplicating it unlawfully. He had simply bought a CD with packages A and B on it, then sold package A to one person and package B to another, which was explicitly forbidden in the EULA.

Adobe sued on the grounds that the EULA forbade such behaviour. The EULA was said to be binding for exactly the reasons given above, that the copies were transferred as licenses not sales of copies, so the EULA simply recorded the conditions of license. The court ruled against Adobe on the grounds that Softman had only bought a copy of the software, but not installed it. Not having installed it, Softman had not entered into the contract whose terms are given in the EULA, and was thus not bound by it. He had however bought his copy, and thus had the right to resell it as a bundle or in detail.

There was no breach of the EULA because Softman had not clicked through and entered into that contract.

So in the US the situation is interestingly different from what Thom describes for Holland. There is no doubt that until you click through, you have not entered into the EULA contract and are not bound by it. This is why Softman won.