OSNews

It depends on the jurisdiction. But take the case of the UK. Contracts in the UK are not binding if there is no consideration. Nor can one side unilaterally vary the terms of a contract once entered into. Now in the case of the EULA, it seems that you enter into one transaction, you purchase a retail copy of the software. This is just a sale, and so the conditions will be those of the sale of goods law.

Now you take it home, install it, and are presented with another different contract to enter into, in the EULA. This contract has no consideration associated with it. This contract could be a variance of the sales agreement. Or it could be a whole new contract. In either case, it is probably not enforceable under English contract law.

But this does not affect any other contract which is not entered into in the curious way that EULAs are entered into. Nor does it affect the copyright holder's right to sell you just one copy, and to act against you should you make and distribute copies.

So the answer to 'who is to say?' is very simple: who says is the law of contract of the jurisdiction in question.

My understanding is that a contract must be available for review and discussion then common agreement. EULA are presented as clickthrough contracts that become little more than pressing OK so setup.exe will run instead of canceling out. Also, an EULA can say "you opened the shrinkwrap so you agree to the contract" when one must open it to view the EULA in the first place.