Saturday, July 10, 2004

EULA issue ducked by Michigan court

yclipse: Court ducks EULA issue

You know, I was all excited when I read the title of this post, but it wasn't what I was looking for. This article is about a very low level of the EULA process, whether the simple process of displaying a EULA on-screen and having a user click 'Accept' constitutes a proper contract. A court decision that determined the displayed EULA/accept combination did not constitute a proper contract would be fairly dramatic and really meaningless. I don't imagine that you'll be allowed to use software without some sort of contract applying, so the details in which it is presented to you and you agree to it don't need to be nitpicked. No matter the form of the agreement, people still won't read it.

I suppose you could make a case that some forms of agreement are not clearly commitments to a contract at all, or that the contract details are not readily at hand when the agreement is presented (though this doesn't apply to the displayed EULA/accept scenario). For example, I've had software shrinkwraps that said 'opening this package implies that you agree with the EULA concerning this software', and maybe I'm too excited or too rushed to even look at that side of the shrinkwrap before opening the package. Even worse are the packages where the EULA that you're agreeing to is contained inside the package that you're opening (there's a logical braintwister for you). I remember reading an article by someone who made a purchase (I believe he bought a Dell computer in Canada), discovered he could not open or use his purchase without agreeing to a contract, and the contract was inside the package (and he couldn't find out what it was without agreeing to it). He was bothered enough by this to contact the company, who would not provide the contract any other way, and he ended up returning the item unopened. Were that sufficiently well documented I think he could have opened the package and considered the contract unenforceable.

Anyway, I had originally hoped the post would be more about the nature of EULA contracts, items that can or cannot be contained within a EULA. I've read and agreed to some pretty objectionable EULA's before (and I just do what I want anyway under the assumption that my actions won't be audited), and I'd like to see some more challenges to these.


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