posted by Thom Holwerda on Fri 25th Apr 2008 15:01 UTC

"EULAs in The Netherlands, 2/2"

Nullification

Because EULAs are conditions of use, the conditions in them may not be unreasonable. Engelfriet notes that "strict" does not mean "unreasonable". In other words, something like restrictions upon on how many computers you may use software is not unreasonable - it is just strict. As the user, you will have to prove that the conditions in the EULA are unreasonable.

In addition, there is a list of prohibited conditions. A condition in the EULA that is prohibited can be nullified. Engelfriet: "Think of something like dismissing liability or a condition that only a Californian judge may decide over a disagreement." This brings me to the Apple Mac OS X EULA that started this whole debate in the first place.

The Mac OS X EULA states:

2. Permitted License Uses and Restrictions.
A. Single Use. This License allows you to install, use and run one (1) copy of the Apple Software on a single Apple-labeled computer at a time. You agree not to install, use or run the Apple Software on any non-Apple-labeled computer, or to enable others to do so.

Is this infamous restriction unreasonable, and therefore can it be nullified? The anonymous source doesn't think so:

The EULA specifically states that the software must be installed on an Apple computer, this is logical because it allows the software to function optimally. If you install the software on a non-Apple computer, there will be a large chance it will not function optimally. The distributor wants to prevent this by stating the software may only be installed on an Apple computer.

In other words, the infamous condition 2A cannot be nullified because it does not seem to be unreasonable at all.

Interference

The final point deals with how other laws might interfere with conditions in an EULA. Dutch law states that you are allowed to make a backup copy of your software - no matter what an EULA might say. Engelfriet does claim that such cases are rare.

Oooh what does this button do?

Is clicking "I agree" on a computer a legally binding way to engage in a contract? This was something I personally struggled with, almost at a moral level. I simply found it preposterous that clicking "I agree" had the same value as actually signing a contract in person with my autograph. Seeing just about any EULA uses this method, I also posed the following question to the anonymous legal expert: is clicking "I agree" similar to signing with an autograph?

Next, you asked if the "I agree" button is similar to an autograph. Via both means, you agree to something. Via the "I agree" button you agree with the conditions of use before you can use the software. So this is binding too, since you may view the conditions of use prior to using the software.

In the comments to the EULA article Engelfriet agrees with this notion, which leads to two legal experts agreeing on this matter.

Conclusion

The above means that assuming the distributor points me towards the EULA prior or during the sale, the EULA I agree with by clicking "I agree" is actually a valid contract according to Dutch Contract Law. The distributor can point me towards that EULA in several ways, for instance by including a notice on the box that says "The use of this software is governed by the rules put forth in the EULA. You can find the EULA at [internet address]." another possibility is to print the EULA on the box. The ability to view the EULA at a later date is crucial.

Effectively, if PsyStar was a Dutch company, Apple would have legs to stand on to legally force them to stop distributing Mac OS X Leopard pre-installed.

On a personal note, the findings of this article severely contradict my own opinions and interpretations of the law, which I posed in the comments section of the PsyStar article. It was my firm belief that an EULA could not be valid if it was not explicitly offered prior or during sale. What I did not realise, however (being a layman and all), was that the terms in an EULA are analogous to conditions of use - which is crucial for the validity of the EULA.

Rests me to repeat that the above is only valid in The Netherlands, and is based on the interpretation of the law by only two different legal experts - it could very well be that there are other experts that disagree with these interpretations. Such is the problem with the law.

If I were you, I'd get out that copy of Super Awesome Garden Designer 8.0 Ultimate Edition. Who knows what its EULA might say.


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Table of contents
  1. "EULAs in The Netherlands, 1/2"
  2. "EULAs in The Netherlands, 2/2"
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