Examples Of Questionable EULAs? 323
Vergil Bushnell approached me with a wonderful opportunity. He writes: "I'm an e-commerce policy analyst working for the Consumer Project on Technology, a research and advocacy organization founded by Ralph Nader. I spend much of my time working to oppose UCITA. I'm trying to collect examples of particularly egregious shrinkwrap and clickwrap license "agreement" clauses to better illustrate the potential repercussions of the UCITA. I would like to ask Slashdot readers to contribute examples of such clauses -- especially those that seek to prevent benchmarks/ criticism, allow software licensors to harvest confidential data about consumers and their activities, and
permit remote termination and/or the existence of "backdoors" in software. So if you've ever had a problem with the language of a particular EULA, and you are worried about the notion of the UCITA now is your chance to do your small part in trying to get the law changed. Read on...
"Egregious EULA clauses posted as the result of this 'Ask Slashdot' will be verified and posted on CPT's UCITA Web site -- (giving credit to the "discoverer") for all to see.
Please accompany your postings with a brief description of how you discovered the EULA (if downloaded, include the URL of the relevant Web site), the date you found the EULA, and (if you wish to receive credit for finding the EULA) your name."
EverQuest (Score:2)
How about these? (Score:2)
"TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MICROSOFT AND ITS SUPPLIERS PROVIDE TO YOU THE COMPONENTS AS IS AND WITHOUT ANY SUPPORT SERVICES"
So much for the softie argument "Yeah, Linux is okay, but who do you sue when something goes wrong?" If you're using Microsoft, the answer is "The same people you sue if your using Linux, nobody." Fortunately you can go to the Linux community and get help for free.
I've got 2 of em. (Score:5)
2) an old Office 95 licence
1) The watch code is licensed ONLY for Windows 3.1, WFW and Windows 95. YET the watch box says NT is supported. A call to Timex was 'oh, that is a typo'
2) The clause that says you can only run the code on PROPERLY LICENCED copies of the windows operating system. If you didn't send in the warranty card -> licence is not "proper", and therefore you were in violation of the licence.
And a personal fav - Clause f of the EULA that says 'if you get sued and Microsoft is named, you have to pay M$'s lawyer bills.'
Easy example - Apogee (Score:2)
This one should be a good example, as it gives the company the power to restrain legitimate free speech by banning criticism through an EULA.
You know what to do with the HELLO.
MP3.com licence (Score:5)
By using our Web site, you consent to the collection and use of your personal information by MP3.com as outlined in this Privacy Policy.
But I never read the agreement!
I also don't have a copy with me, but on the Microsoft Y2K update cdrom's that they mailed out (I don't know what you have to do to get on that list) the wrapper of the cdrom said that by using the cdrom, I agreed to the terms and conditions of the license agreement, stored on the cdrom! These are clearly catch-22 situations, and oughta be illegal - except for UCITA, which makes them binding.
Thrown out... (Score:4)
UCITA tries to violate the rights given to US consumers, much like a lot of the `extreme legislation' that has been happening of late this would be completely thrown out by any higher court.
Any thoughts?
Database (Score:2)
They're all evil (Score:5)
If I'm installing a piece of software at 2am, am I really expected to read through a lengthy document and consult a lawyer when I don't understand a particular clause? If you ask the company whose product I've just bought, yes.
If you ask me, that is an unreasonable expectation. Do you know what lawyers cost? Do you think I should have to keep one on retainer just for the cases where I install commercial software? Hell, that would cost as much or more as buying the software in the first place!
Additionally, these companies try to avoid any liability issues. Suppose I buy a defective dishwasher that sparks and catches my house on fire... who is responsible for that? Maytag (or whoever, no offense to Maytag intended or implied).
If a memory leak in someone's latest, greatest software package corrupts vital data (say in the kernel of my new media-less Windows 2000 system), who's to blame? No one. (Well, I'd be the one to blame if I was stupid enough to rely on M$ Win2000 for anything more important than minesweeper!) Problem is that many companies do rely on software such as this, and pay large amounts of money to do so... you'd think they would have bought a bit of accountability to go along with it.
Eric
"You agree to this...whoever you are." (Score:4)
The producer who demands agreement to the license doesn't even have an "anonymous" ID (like the name on this post); click/shrink-wrap licenses are like putting "by reading the following posting you agree to the following conditions..." on a /. response - it's a legal absurdity because the one requiring agreement to terms hasn't got the foggiest clue who is doing the agreeing.
How about Xing's license? (Score:4)
End-User License Agreement
This License Agreement (this "Agreement") is a legal agreement between you and Xing Technology Corporation, a California corporation ("Xing") for the accompanying software, associated media, printed materials, audiovisual content, and "online" or electronic documentation (collectively, the "Product"). By installing or using the Product, you agree to be bound by the terms of this Agreement. If you do not agree to all of the terms of this agreement, de-install all copies of the Product from your computer and return all Product materials to your distributor or Xing for a refund of any license fees paid.
LICENSE:
1. The Product is licensed, not sold. The Product is protected by copyright law and international copyright treaty provisions, as well as other intellectual property laws and treaties. You must not allow copies of the Product or any part of it to be made or distributed to anyone else. You may make backup copies of the software for archival purposes only.
2. Xing grants to you a non-exclusive, non-sublicensable license to use the Product for your own use only.
[pretty standard so far, right?]
3. The Product is licensed for use on a single session of a single computer. If your computer is capable of running more than one simultaneous session, you may not use the Product on more than one session at a time. You may delete the Product from one computer and reinstall it on another, but you may not install the Product on more than one computer at any given time. If you wish to install the Product on more than one computer or use the Product for more than one session on a particular computer, you must purchase separate copies of the Product for each such computer or session.
[in other words, you can't run two instances of the program at the same time, nor can you install it on two computers, even if only one of them would be in use at a time (i.e. home vs work).]
4. The Product may not be rented, leased, or in any other manner commercially exploited without prior written permission of Xing. However, you may transfer this license to use the Product to another party (the "Transferee") on a permanent basis by transferring all parts of the Product to the Transferee. Such transfer of possession terminates your license from Xing. The Transferee will be licensed under the terms of this Agreement upon the Transferee's acceptance of this Agreement by its initial use of the Product. Upon notification to Xing of the transfer, the Transferee will receive customer support on the same terms you did at the time of the transfer, and the Transferee will receive no support if for any reason you were ineligible for support. If you transfer the Product, you must remove all parts of it, along with any installation devices, from your computer, and you may not retain any parts or copies for your own use.
[so much for right of first sale..]
5. The Product in source code form is confidential and Xing's protected trade secret, and you may not attempt to reverse engineer, decompile, disassemble or otherwise decipher any portion of the Product. Reproduction and/or redistribution of any portion of the Product is specifically prohibited in the absence of a separate written agreement with Xing.
[Hooray for DMCA! You can't reverse engineer or otherwise use xing's software for anything other than what the UI lets you do.]
6. If audiovisual content contained in or bundled with the Product (the "Content") contains its own license agreement, that agreement controls use of the Content. Otherwise, use of the Content is controlled by this Agreement. You may not modify, copy, or distribute the Content except to the extent this Agreement allows modification, copying, or distribution of the Product. You may not use the Content except in conjunction with personal testing or demonstration of the Product. The Content must at all times remain with the Product in its original form.
7. All video, audio, and other content accessed through the Product is the property of the applicable content owner and may be protected by applicable copyright law. This Agreement gives you no rights to such content.
8. If you use the Product to create or distribute audio, video, or other content, Xing is not responsible for such content, and you are solely responsible, for the property rights, legality, and regulation of all such content, including but not limited to issues of copyright ownership and obscenity regulation worldwide.
9. Xing retains all ownership and intellectual property rights in and to the Product. You agree to abide by the copyright law and all other applicable laws of the United States, including those relating to United States export controls. You agree not to ship or re-export any portion of the Product to any destination to which it could not lawfully have been exported originally under those export controls.
10. Xing may terminate this Agreement at any time by delivering notice to you, and you may terminate this Agreement at any time by removing all copies of the Product from your computer and destroying all Product materials. However, Sections 4 through 12 of this Agreement shall indefinitely survive its termination. This Agreement is personal to you and you agree not to assign your rights under it. This Agreement shall be governed by and construed in accordance with the laws of the State of California and by U.S. federal law relating to intellectual property in general, and to copyrights, patents, and trademarks in particular. You agree to submit all disputes to the exclusive jurisdiction of courts or tribunals located within the territorial boundaries of the U.S.
11. The Product is covered solely by the accompanying Xing Limited Warranty. THE PRODUCT IS PROVIDED WITHOUT ANY OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
12. XING SHALL NOT BE LIABLE: (A) FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR INDIRECT DAMAGES OF ANY SORT WHATSOEVER, WHETHER ARISING IN TORT, CONTRACT, OR OTHERWISE (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS PROFITS, REVENUES, OR INFORMATION, OR FOR BUSINESS INTERRUPTION) RESULTING FROM YOUR USE OF THE PRODUCT OR YOUR INABILITY TO USE THE PRODUCT, EVEN IF XING HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) FOR ANY CLAIM BY ANY PARTY OTHER THAN YOU. IN NO EVENT SHALL XING'S LIABILITY TO YOU EXCEED THE AMOUNT YOU ORIGINALLY PAID FOR THE PRODUCT. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
13. The Product is provided with Restricted Rights. Use, duplication, or disclosure by the U.S. Government or any of its agencies or instrumentalities is subject to the restrictions set forth in subdivision (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, or in subdivision (c)(1) and (c)(2) of the Commercial Computer Software -- Restricted Rights clause at 48 CFR 52.227-19, as applicable. Manufacturer/contractor is Xing Technology Corporation, 2925 McMillan, San Luis Obispo, CA 93401.
"Xing" and "StreamWorks" are registered trademarks, "SmartFAQ" is a service mark, and "XingMPEG", "MPEGLive!", "MPEG2Live!", "MP3Live!", "XingMP3", "StreamWorks MP3 Server", "XingDVD", "AudioCatalyst", "XingMP3 Player" and all logo and graphic designs are trademarks of Xing Technology Corporation.
Other product and company names appearing in Xing Technology Corporation products and materials are used for identification purposes only and may be trademarks or registered trademarks of their respective companies. Registered and unregistered trademarks used in any Xing Technology Corporation products and materials are the exclusive property of their respective owners.
Copyright (c) 1994-99 Xing Technology Corporation. All rights reserved.
[license ends with more standard legal stuff, including the obligatory all-caps "we aren't responsible, damnit!" section.]
Nathan Strong
change "geeblooz" to "gblues" and remove ".has.crappy.service" to e-mail me.
Re:MP3.com licence (Score:2)
Corvair (Score:3)
Re:MP3.com licence (Score:2)
But I never read the agreement!
There's some discussion in the P3P spec [w3.org] about the need for a "Safe Zone" to solve just this problem.
Re:MP3.com licence (Score:2)
Re:Thrown out... (Score:3)
Yeah, BUT...you'll have to go to court (time, $$$, hassle) to have the contract ruled invalid. Contracts are valid until proven otherwise.
That's like unconstitutional laws: you might not have to follow a law because it's invalid, but the cop who arrests you and tosses you in jail for breaking that law won't care, your new arrest record won't be purged, the bail bondsman will still want his 10% cut, your lawyer will demand payment, you boss will replace you while you're in the slammer, your apartment contents will be dumped on the curb after you miss your payment, and the judge will take lots of your time while you explain how the law is unconstitutional. You'll be acquitted, but at what cost?
Re:Thrown out... (Score:2)
Strange - my rental agreement said almost exactly the opposite. Something like "If any part of this contract is found to be invalid, it shall have no effect on any other part of this contract, which shall remain in effect."
As for EULAs, I'm always surprised by the breadth of things that you're not allowed to do. The nearest random example: Symantec's Norton Antivirus Enterprise Solution Version 4.0 specifically forbids me to make copies of the documentation (a provision which I guess I've just violated). Need to create a setup guide for your users? Forget about giving them copies of the actual documentation.
Re:Thrown out... (Score:2)
Be Seeing You,
Jeffrey.
MSSQL7 Internet Connector License (Score:5)
I had heard, from an acquaintance that there was some sort of special licensing when putting an SQL server on the 'net, so I checked out the MSSQL website [microsoft.com], and ran accross something called an "Internet Connector License" on the Licensing and Pricing page [microsoft.com].
According to this page, you need to purchase a license for each client of MSSQL Server. Makes sense. Client licensing is commonly used in the industry. I have no big beef with this.
In my proposed setup, as I mentioned, the web users would connect to the webserver, which in turn connects to the Coldfusion Daemon, which requests information from the SQL server. Coldfusion would be the only client of the SQL server. Nothing else would be connecting. So, naturally, I thought that I would only need one(1) Client Access License (CAL) for the Coldfusion Server.
Microsoft thinks differently. See, according to Microsoft's legal department (and my supplier), each user of my web server is indirectly a client of the SQL server, and therefore, I need licenses for user who receives pages generated by the Coldfusion daemon.
Since it's pretty much impossible to determine how many different users will visit the server, and VERY impractical to try and maintain a bank of licenses for the userbase, Microsoft has 'conveniently' created a special licensing package which covers all internet based users.
The Internet Connector License is $2999USD. This is ridiculous. There is no added value to this 'product', no extra features, and is just an underhanded way to make extra cash. Web users never connect to the SQL server. By this logic, if I pull information from a MSSQL server put it into a word processor, and print 100 copies of this document, I need 100 client licenses.
THIS is a questionable EULA.
Re:MP3.com licence (Score:3)
[prediction] In a little while, there'll be a new law/addendum to UCITA that makes these step-on-agreements valid. [/prediction]
Re:MP3.com licence (Score:2)
Re:MP3.com licence (Score:2)
Re:Most (Score:2)
Re:EverQuest (Score:3)
The only 'controversial' parts of its EULA would be the ones set in place to protect their ability to police their game world, plus the restriction on selling EQ "property" for real cash. They need to have the right to ban people, or else jerks can ruin the game for everyone. They tell people not to sell EQ characters and items on eBay and the like - and I think that's a great idea. Buying a powerful character in a game is, to me and many others, cheating. I don't like cheating, and neither does Verant.
That's not to mention the headaches that happen when you get scammed in a sale for a character or items. Instead of having to deal with the hundreds of people who would get scammed and complain to Verant for retribution, they decided to avoid the hassle and ban it outright.
There are also restrictions against modifying their client software to run on emulated servers, and some other restrictions of the sort. Some might see this as a problem, I guess. I see it as a reasonable protection of their ability to offer a supported online service. Since most software has restrictions on modifying it at all, this really isn't anything new. Of course, this isn't very enforcable anyway if you know what you're doing when you modify the client. Just have a copy that doesn't contact an official EQ server at all, including the patch server. Whoopie, they'll never see it.
Now, they DID have a problem where they were scanning people's systems to see if they were running any packet-sniffing 'cheats'. They had changed the EULA to allow them to do this at the time. However, based on the fact that 20% of their user base was against this in an in-game survey, they dropped it and apologized. Note: ONLY 20% said they had a problem with this. These guys obviously listen to their customers, this wasn't even near the majority and yet they put a stop to it.
You know what to do with the HELLO.
How brazen can you get without penalty? (Score:2)
I understand that most software creators want to cover their butts (and save on the expense of support) by detaching themselves from responsibility. Hence the "use at your own risk" statements. But backdoors? If I were a software creator...no, if I were the person in charge of the business decisions the software creators have to live by, there's NO way I'd incorporate such a process into my software without making it UNDENIABLY clear to the user that it's for their own good.
People don't like sneaky software and just one product that gives you a black eye can ruin your ability to sell products in the future. There's always competition and your competitors would just LOVE for you to piss off your users.
Anyone got any examples of license agreements where the user has to agree to an open back door? I'm up for being corrected. :)
bTJOD
~-- Yet another posting forum : nerd center [nerdcenter.com] --~
Borland's Community Web (Score:2)
Copyrights: The materials on this Site are copyrighted and protected by worldwide copyright laws and treaty provisions. You may download one copy of the information ("Materials") found on this Site on a single computer for your personal, non-commercial internal use only unless specifically licensed to do otherwise by Inprise Corporation in writing. Except as otherwise provided in this paragraph, Inprise Corporation does not grant any express or implied right to you to any patents, copyrights, trademarks, trade secrets, or other intellectual property
Only one download of an HTML page? And only for non-commercial use?
#include (Score:2)
In fact, its gotten so boiler-plate that I'm surprised there isn't #include eula.h language on the distribution media. To wit: This software is protected by the USC EULA Software Act of 2001 and such.
Oh, wait, I forgot about UCITA...
Everquest (Score:3)
The avowed purpose was to detect people using monitor and probe programs to cheat while playing the game, but the firestorm of criticism and controversy it set off led to the removal of the offending language.
I don't have the language (or even good references - it's been a couple of months, they've expired off the web sites) here at work, but this has to be held up as a pretty poor attempt at a license agreement. It basically allowed them to install, on my computer, at their convenience, a program which would monitor the processes I ran, and the data on my hard drive, and report back to them. If they'd actually done it - I'da quit.
Retail Software catch-22 (Score:2)
Difference between shrinkwrap and GPL (Score:2)
Activities other than copying, distribution and modification are not
covered by this License; they are outside its scope. The act of
running the Program is not restricted, and the output from the Program
is covered only if its contents constitute a work based on the
Program (independent of having been made by running the Program).
Whether that is true depends on what the Program does.
In other words, you do _not_ have to agree to the GPL to run the program. You never have to agree to the GPL. But if you don't, you can't copy, modify or distribute the software, because the only way you'll get the right to do that is through the license.
The GPL is based on copyright, and gives you the ability to do things you'd ordinarily not be able to do, in exchange for certain restrictions. Shrinkwrap licenses remove your ability to do things you'd be able to do, absent the license.
Confusing the issues? (Score:2)
Since ordinary people like you and me will never be able to negotiate any EULA's with Microsoft or any other vendor, we have to try to make laws like UCITA more consumer-oriented so that vendors are not allowed to place outrageous terms in the EULA's. Therefore, keep in mind that (a) lawyers can't help you negotiate EULA's because you (joe consumer) have no leverage, and (b) even though joe consumer has no leverage, all the joe consumers together can tell their lawmakers to override the overreaching portions in EULA's through legislation.
Final point: don't forget that courts can override both the vendor's EULA, but also the statutory law, so if both of them still don't get it (as apparently they do not), then there is always hope that a judge will see the light and change things for the better. Remember to chose your battles, and this is one worth fighting.
Micron (Score:2)
Please note: by powering on this computer you agree to abide by the licensing terms of DOS 3.3
Common practice today, any computer you buy will have a sticker like this on it. So there is NO opportunity to request a refund for the unused software, or otherwise disagree with the license and opt not to use the software if you want to use the computer. How fair is that?
Easy way around it (Score:3)
In any case, there is a way around this (at least there was 2 years ago, when I was doing something similar). Use MS Transaction Server (or whatever they are calling it nowadays). It "multiplexes" connections to various entities (COM objects, SQL servers, etc). At the time the licensing was as you expected: Multiple clients to MSTS are considered one connection to SQL.
--
Wanna hook MAPI clients to your Tru64/AIX/Linux server?
What about Minors? (Score:3)
I am the parent of 3 kids. They are all minors (younger than 16). In our state, minors can not legally enter into contracts. Does this apply to EULAs? I believe that the thinking in the law is: kids do not have a firm enough grasp of the long term legal concequences of contracts.
So, does this apply in EULAs? If one of my kids puts a program on my computer that does damage, they could not be held to the contract. I did not enter into the contract, I can't be held responsible, is the vendor now held responsible? They knowingly sell to minors . . .
Bob YoungRe:EverQuest (Score:3)
So the moral of the story is that only less than 18 year olds should install software, because then the license isn't legally binding.
Re:MSSQL7 Internet Connector License (Score:2)
However, downloading data into Word and producing the web page is kosher, as is publishing static reports prepared by a single user (or, by extension, by a batch process).
Re:Easy example - Apogee (Score:2)
It's a bad example.
As has been pointed out numerous times right here on Slashdot, Taco got confused. Apogee was restricting use of their trademarks under trademark law. This has nothing to do with purchases of software, software licensing, EULAs and UCITA.
To put it crudely, Apogee has a trademark to the word 'Prey' as a name of a computer game. You cannot call another computer game Prey even if you never bought any software from Apogee and never entered into any contracts with them.
Kaa
Re:I've got 2 of em. (Score:3)
Network Associates (Score:2)
So your not allowed to benchmark their software and publish it without thier prior consent. Probably if they do not like the results.
"230-2. The customer shall not disclose the results of any 230-benchmark test to any third party without Network 230-Associates' prior written approval. 230- 230-3. The customer will not publish reviews of the product 230-without prior consent from Network Associates. 230-"
Windows 2000 Upgrade EULA (Score:3)
In the emphasized area, doesn't this mean that you cannot download, run, etc.. from a telnet, FTP or etc session running on a windows 2000 machine if you don't have Windows 2000?
4. TRANSFER-Internal. You may move the Product to a different Workstation Computer. Transfer to Third Party. The initial user of the Product may make a one-time transfer of the Product to another end user. The transfer has to include all component parts, media, printed materials, this EULA, and if applicable, the Certificate of Authenticity. The transfer may not be an indirect transfer, such as a consignment. Prior to the transfer, the end user receiving the transferred Product must agree to all the EULA terms. No Rental. You may not rent, lease, or lend the Product.
What, If I sell (err.. transfer) this to Joe down the hall from me, Joe can't sell (err..transfer) it to someone else? What a crock!
7. CONSENT TO USE OF DATA. You agree that Microsoft and its affiliates may collect and use technical information you provide as a part of support services related to the Product. Microsoft agrees not to use this information in a form that personally identifies you.
Just your standard "we can collect any information on you that we wish only for some vaguely stated purpose, as long as you are "anonymous"
Then, of course it goes on and on with the standard "you can't sue us for anything" crap.
-Keithel
Web Site EULAs (Score:3)
NOTICE.
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. BY ACCESSING THIS SITE AND ANY PAGES ON THIS SITE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS BELOW. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS BELOW, DO NOT ACCESS THIS SITE, OR ANY PAGES ON THIS SITE.
They go on to disallow "decompiling" or "disassembling" the site (hmm...guess I can't "View Source"), retrieving any info from their site by "automated means", or framing the site. Also they have a section that removes any liability from anything they might post on the site. Gee, I guess they could have a bunch of illegal MP3's for download if they wanted to, since the RIAA would agree to the conditions of use by looking at the site.
Here's one of my favorite parts: "Walker Digital Corporation may, at any time revoke your access to the Web Site..." Like they could really keep someone out.
I'd post all of it but they'd probably sue me under the terms of the EULA. Here's a link to the page so you can read it (and be disgusted like I was):
http://www.walkerdigital.com/IntellectualProper
Re:Thrown out... (Score:2)
I guess that Norton's reasoning (other than defending their copyright) is that, if you want to hand your users copies of the manual, they'll be happy to sell you a box full of 'em.
Re:Easy way around it (Score:2)
wrong, you still need to the license..... that's considered a concentrator... You can find it somewhere on M$ /sql site
Plus, you need one "per processor", IIRC..
Still, it's cheaper than Oracle. By their weird licensing [oracle.com] a two-year license of 8i on our dual 550mhz sql server would be $289,000... i'll take the less than $4,000 for SQL, thanks.
---
Reminds me of yesterday's Dilbert... (Score:2)
Dilbert reads on package: SOFTWARE LICENSE: BY OPENING THIS PACKAGE, YOU AGREE...YOU WILL NOT MAKE COPIES OR EXPORT TO DESPOTIC NATIONS. YOU WILL SUBMIT TO STRIP SEARCHES IN YOUR HOME...
[Dilbert rips open packaged software]
A heavy-set nurse walks in the room, pulling on a shoulder-length rubber glove: "Frankly, both of us would have been happier if you had just walked away."
Slashdot Post EULA (Score:2)
1) The reader will not moderate this (or any other post by this author) in any negative fashion.
2) The author makes no warranty, express or implied, about the usability of this post in this or any other fourm, topicality of this post to the question at hand, quality of spelling or content or correctness of information.
3) The author shall not be responsible for damages to computer equipment or software arising from this post.
4) Unauthorized attempts to bypass the copy protection in this post shall be prosecuted to the fullest extent of the law in the state of Virginia or whichever state comes up with a better version of the UCITA.
5) The reader agrees to provide the author with food and beer, should the author appear on their doorstep demanding these items.
6) This post is Patent Pending.
7) This post is (TM) The Committee to Save the Endangered Malaria Mosquito (TM) Any infrigement on this trademark shall be prosecuted to the fullest extent of the law.
XML schema licences (Score:4)
One area I've not yet seen discussed is that of XML Schema licensing. These are a huge, and as yet unappreciated, area of IP rights.
What is XML all about ? IMHO, it's both encouraging easy extensibility, and easy distribution of the resulting schemas between parties who wish to communicate.
BizTalk [biztalk.org] is a well-known example of a schema exchange medium, but what should be a perfect usage for a reliable and proven mechanism like GNU CopyLeft is actually a vague and poorly worded para that gives Microsoft the ability to do whatever they like with your work:
Publishers who upload or otherwise submit contribute schemas or other works to the BizTalk.org library grant Microsoft the right to display, store, transmit, make copies for archive purposes, create derivative works and make these contributed works publicly available in any way they please.
Now speaking personally, I will grant redistribution rights on my own creative work to Microsoft when they start granting theirs to me....
As another example, here's a snippet from the licence for XrML [xrml.org]. The bizarre thing here is that my current project is so scared of the implications of this licence that we've adopted a clean room policy to avoid any possible impact on our own future development work - yet one of my coworkers is actually quoted and named on their site as being an advocate of the project !
Modifications to the XrML Specifications:
Subject to the terms and conditions of this License Agreement, ContentGuard grants to You the right to make XrML Modifications, provided that You:
Your License Grants to ContentGuard and to Other Licensees:
Subject to the terms and conditions of this License You grant ContentGuard and all other Licensees a world-wide, royalty-free unlimited license to use all XrML Derivative Works that You create. This license includes the right to use, copy and create Derivative Works based on the XrML Derivative Works. You grant to ContentGuard the exclusive right to sublicense XrML Derivative Works that You create.
Re:Win98 an upgrade? (Score:2)
The Standard disclaimer of liability. (Score:2)
One of the biggest "gotchas" which is incredably common (essentially universal) is the disclaimer of all liability for damage resulting from poor software.
One minor but good example: Microsoft should be liable for damage caused by the Melissa worm, they have known about the problem of word macro vicruses for years (one of the first wild word macro viruses was on a Microsoft CD!).
Yet there is no class action lawsuit aganst Microsoft, due to negligent design of the software, which they KNOW was asking for trouble and providing an incredible breeding ground for viruses.
Nicholas C Weaver
nweaver@cs.berkeley.edu
Re:Difference between shrinkwrap and GPL (Score:2)
The GPL ONLY coveres modification and distribution. It doesn't say anything about use or failure.
In any case...why do you feel the need to have someone to sue? Theres too much of that going around these days as it is, everyone wants to settle everything in court it seems.
As for liability. You have the source, you have the ability to check it over. If you put software, or anything, into a position where its running is critical, without checking it out yourself (or paying someone else to check it out) then you have NOONE to blame but yourself anyway.
If YOU are using the software, it is YOUR responsibility to make sure that it is the correct solution for your problem. If you are unable, or unwilling to do that, then you have noone to blame but...guess who...yourself.
Software developers are only human. Expecting them to write perfect code with no errors is foolish at best, and in many instances, downright irresponsible.
Its like anything else....when a car maker makes cars, they test them out. If you go out and buy a car that was designed for city driving...take it out to a race track and burn around at toip speed, can you expect the car company to be liable if the car turns out to not be able to handle zipping around a race track that it was never designed to be on?
With software, of course, the differences are more subtle. Uses are not so black and white, which is why it is up to the person deploying the software to make sure that it is what they need.
Someone to sue and blame. What a childish attitude. Who cares about finding the problem and fixing it...its so much more important to find who to blame and blame them...it acomplishes so much more.
(Sorry, but the tendancy to try to deny personal responsibility for ones own decisions and actions is one of my personal pet peeves)
Re:Thrown out... (Score:2)
Re:How about Xing's license? (Score:2)
Licence hacking (Score:2)
You write a license with clauses A-G. Clauses A-C give the licensee a number of rights, while the clauses D-F seem to slightly restrict those rights and extract promises from the user to not sue the producer, not to cdriticize the product and not to use any word beginning with a vowel. The use of words starting with 'y' will be determined by the producer on a case-by-case basis.
Clause G then says that if any of those clauses is invalid, that clause shall be void but the rest of the license will still be valid. The producer then goes on to put little flaws in each of the clauses A-F to make them invalid, leaving only the restrictions and no rights.
Of course, this would never actually work if it is true as has been said that a license can only actually grant rights bu not take them away and that the worst that it can threaten is the revokation of those rights, which in this case are none. But now apply this to a proper contract and we have trouble. (or free cash, depending on how evil you are)
Registered Standard Licences (Score:2)
Re:#include (Score:2)
Software companies want to tell you that they need EULAs to prevent piracy. The laws are already there to prevent that. Copy a music CD, or a book, for a friend? You're a pirate, and the real owner can pull you into court, EULA or no EULA.
Software companies don't think that copyright law is good enough. They want you to have fewer rights over the software you buy than you have over the books that you buy. The twin tools of that fight are the EULA and the concept of "we're not selling you a copy; we're selling you a license, and the bits on the CD are secondary".
I'm not turning around and saying all (or even most) software companies are evil due to the EULA. A company that doesn't use a EULA could be sued by its shareholders for not adequately protecting itself. IMHO, a multilateral disarmament is necessary--probably not by a new law, but by a court decision.
IBM Websphere license agreement (Score:3)
Circumstances may arise where, because of a default on IBM's part or other liability, you are entitled to recover damages from IBM. In each such instance, regardless of the basis on which you may be entitled to claim damages from IBM, (including fundamental breach, negligence, misrepresentation, or other contract or tort claim), IBM is liable for no more than 1) damages for bodily injury (including death) and damage to real property and tangible personal property and 2) the amount of any other actual direct damages up to the greater of U.S. $100,000 (or equivalent in your local currency) or the charges for the Program that is the subject of the claim.
IBM WILL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR SAVINGS), EVEN IF IBM, OR ITS RESELLER, HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
winzip license (Score:2)
Re:Windows 2000 Upgrade EULA (Score:2)
----------
Re:Difference between shrinkwrap and GPL (Score:2)
I don't think its reasonable to expect users tounderstand the source code. Anymore than I consider it reasonable that someone should be expected to check the designs of a car (e.g. the Ford Pinto) to make sure that it won't explode when it gets hit. This is something people take for granted.
When something is used normally, it should do its job and not cause damage. With software it is harder to guarentee the reliability, but the company should be able to work out whether its normally stable, and be insured against the possibility of something nasty happening.
MS-Kerberos EULA, WinZip and non-circumvention (Score:2)
By their actions, Microsoft apparently turned WinZip into a circumvention tool illegal under the DMCA. For that matter, info-zip, pkunzip, gunzip and all of their ilk are also apparently illegal under the DMCA.
What if Microsoft had "protected" the MS-Kerberos spec with Rot13?
In the insurance world, aren't there some sort of minimum tests for protection, and aren't you required to make some sort of best effort to protect your property from theft or liability for injury of others? IMHO using a click-license stub on the front of a file that can be extracted readily with commonly available tools just doesn't qualify as protection.
Nor would using Rot13, which brings back to mind the original deCSS case. The encryption cracked to build deCSS was essentially a trivial 8-bit key, which would not be considered significant by anyone skilled in the art of cryptography. That indicates to me that they did not take sufficient efforts to protect their property. While that does not absolve the 'thief', it also means that the owner shares the blame. Isn't that the way it would work with physical property?
Corel WordPerfect 8 for Windows Interesting Points (Score:3)
"H. Export controls: except for export to canada for use in canada by canadian citizens, the program may not be exported outside of the united states or to any foreign entity or "foreign person" as defined by the u.s. government regulations, including without limitation anyone who is not a citizen, national or lawful permanent resident of the united states. By using the program, you are warranting that you are not a "foreign person" or under the control of a "foreign person""
Question: Do I own a loaf of bread? (Score:5)
Do I own a loaf of bread?
Seriously. Do I own a load of bread that I buy? Can I examine it under a microscope? Can I run chemical tests on it? Can I run it through a spectrometer? A gas chromatograph? Can I reverse engineer the recipe and make exact copies of it? Can I sell the copies for profit and not pay anything to the original break maker? Is this legal? Is this illegal? Did I have to sign a license? Click one? Will anyone stand up and tell me that "clicks" are as legally binging as a signature? Legally binding at all? By clicking here you agree to pay me $10,000,000 or as much of that as you can and the debt must be inherited to spouses or offspring if you die until it's paid off at 500% annual intrest. [mailto] Hey, you clicked it! It's a license/contract/agreement/whatever. You're bound. Yah sure. God the software lawyers are not just stupid but really lame assed stupid.
Dilbert - Very Timely (Score:2)
Dilbert reading to himself..."By opening this package you agree you will not make copies or export to despotic nations. You will submit to strip searches in your home..."
Last frame in cartoon just as Dilbert rips open the package, a large woman with a flashlight appears and starts to put on a rubber glove and says..."Frankly, both of us would have been happier if you had just walked away."
--
dman123 forever!
Re:How about these? (Score:2)
You can't sue anyone in either context, therefore you get to sue the same people when using either Linux or Windows.
Wolfram want to search your computer today (Score:5)
http://www.itu.reading.ac.uk/misc/Mailing_Lists/ cpd/00000040.htm
Mathematica (Wolfram Research) is one of the two best symbolic mathematical programs around (I use both it and Maple), and its interface is specific to the operating system on which it resides. So when I had to change OS (market forces, not preference) I asked WRI if it was possible to rewrite my Mathematica license (same computer, same user, different OS), so I could stay legal and above board. Sure, they said, sign an application for change, pay a fee, and all will be well. OK, I said.
But I read the fine print on the form I needed to sign. It authorized WRI to search my home any time they wanted to, and required me to cooperate in their search, so they could assure themselves that I didn't still have a hidden copy of the previously licensed program. I pointed out that even the Director of the FBI needs a court order to search my home, and that requires convincing a court that there is a reasonable presumption that something incriminating will be found. So, after a certain fuss, they waived that requirement in my case. But when asked if they were planning to remove this appalling clause from their standard form, I got only "my supervisor is aware of the problem." A dime says it is still there.
Read the fine print.
Re:Most (Score:2)
All goods come with an implicit warranty for use; this warranty is protected under law. If I buy a pen, I have a right to sue (or more realistically, get my money back) if it doesn't write--that is, if it doesn't perform like a pen.
With OSS software, the most you pay for is a distribution--a tape, a CD--maybe a book. You can argue that you get the implied warranty on the software if you buy a distribution, or just that the implied warranty applies to the physical distribution (the CD actually contains bits; the tape won't tear in your drive). If an OSS distro has an implied warranty (courts can decide this; IANAL), that onus is on the distribution vendor, not the software authors.
If you download OSS software, however, the legal grey area goes away. You paid nothing, you get no warranty.
Re:Windows 2000 Upgrade EULA (Score:2)
You may not use the Product to permit any Device to use, access, display or run other executable software residing on the Workstation Computer, nor may you permit any Device to display the Product's user interface, unless the Device has a separate license for the Product.
I connect to my NT box at work from my Linux box at home with VNC. So with W2k that's forbidden? Good luck on enforcing it... Come to think of it, I never actually agreed to the NT license, the software was installed when I got the machine. If/when they decide to change our machines to W2k, I probably won't see that license either. Who would be responsible if I used a remote-access tool on W2k?
Also, if you happen to catch NetBus or BackOrifice, it seems you are you in deep sh*t because other people can see your screen... ;)
You may permit a maximum of ten (10) computers ... to connect to the Workstation Computer to utilize the services of the Product
This restriction is also present in NT4WKS, but they seem to have added more restrictions for W2k than there were for NT4.
Re:Most (Score:2)
Arguably, you should be able to sue your distro vendor when the code pukes, but even that is a legal grey area (are they really selling software, or just the ability to install it without downloading it off the Web?)
Why should Linus cover you if aren't paying him? that would make people responsible for unlimited liability with zero compensation.
Re:Question: Do I own a loaf of bread? (Score:2)
Re:Thrown out... (Score:2)
Hey, it works for O'Reilly and Larry Wall. Sounds like a progressive business model!
"Can I see some ID there, sonny?" (Score:2)
This in itself may be enough to get rid of UCITA, unless the courts would then make a parent or legal guardian responsible for their child's adherence to the EULA. However, the child is still "signing" the contract and contract law forbids children to sign...this "signature" of a mouse click is worth nothing because this isn't a real signature that can be: analyzed for age (ink can be dated rather well, especially black ink), checked for forgery through handwriting analysis, or proven by the security of a true electronic signature's password requirement, tamper-protection, and mathematical correlation with a registered profile. Anyone could have "signed" the "acceptance." The mouse button could have stuck or the cat walked on the Enter key while you were on the phone with your lawyer talking about the EULA. Who knows. It's worthless, and ridiculous overturnings of hundreds of years' of legal precedence such as this just highlights how clearly UCITA was a piece of legislation that was bought and paid for, rather than created out of a legitimate need.
What would happen if... (Score:2)
I'm not sure about the legal ramifications of this, but what would happen if that programmer were then sued and just lost the case on purpose? Would an appeal to a federal court be possible, with the eventual possibility of the supreme court overthrowing UCITA b/c it's unconstitutional?
This may be just a dumb idea. What do y'all say?
#4 is because of #1 (Score:2)
The reason you don't have the right of first sale (#4) is because of what they say in #1... you are not buying their software, you are liscensing it. That's how they get around having to allow you to sell the software.
---
Re:Database (Score:2)
Customer shall not:
This is basically an attempt to leverage the copyright to force acceptance of a term that Congress and the First Amendmentment did not include among the limited exclusive rights given to the copyright owner.
Here's one: (Score:2)
If you use software from Network Associates, including commercial PGP, McAfee Anti Virus, and Gauntlet firewall software, you're subject to their EULA, of course.
But these products are often (or exclusively) used in corporate networks where the end users may have no knowledge of such licenses, or even be aware of the use of that particular software. And even if you examine the license, you might not know that...
As I understand the UCITA and DMCA, you're liable in some unspecified way if you, say, are a consultant evaluating the relative performance of NAI software for a client, or if you are contributing to a software purchasing decision at a company by writing an internal review.
Disclaimer to be used when purchasing software: (Score:2)
Disclaimer to be used when purchasing software:
This check is fully warranted against physical defects and poor
workmanship in its stationery. If the check is physically damaged,
return it to me and I will replace or repair it at my discretion. No
other warranty of any kind is made, neither express nor implied
including, but not limited to, the implied warranties of Merchantability,
Suitability for Purpose, and Validity of Currency. Any and all risk
concerning the actual value of this check is assumed by you, the
recipient. Even though I or my agents may have assured you of its
worth, either verbally or in written communication, we may have had our
fingers crossed, so don't come whimpering back to me if it bounces.
The money, if any, represented by this instrument remains my property.
You are licensed to use it, however you are not allowed to copy the
original check except for your personal records, nor are you permitted
to give the money itself to anyone else. Neither may you allow any
other person to use the money. Remember, you may have it in your
possession, but it still belongs to me, and I'm going to call on you
from time to time just to keep tabs on it.
This agreement supersedes all others between us, including the equally
ridiculous one you have undoubtedly pasted on the back of your
packaging, or concealed somewhere in the middle of it. The location of
your version of this or any other covenant between us is irrelevant to
its inapplicability here. Only this one pertains, and I really mean
it. In fact, this one supersedes yours even though yours may say that
it supersedes mine. Why, even if yours said it would supersede mine
even if mine said it would supersede yours even if yours said... Oh
well. You get the idea.
You may decline this agreement by returning the uncashed check to me
within twenty-four hours. If you attempt to cash it, however, you have
implicitly accepted these terms. You may also implicitly accept these
terms by:
1) Calling my bank to inquire about the status of my account;
2) Thanking me at the conclusion of our business transaction;
3) Going to bed at the end of this or any other day; or
4) Using any toilet or rest room.
Please be advised that I have adopted a strict rubber-glue policy. Any
nasty thing that your lawyers say bounces off of me and sticks back to
you. Be further advised that you agree to pay my legal expenses if I
decide to sue you for violating this agreement or for any other reason
that might strike my fancy. Violations will be punishable by fine,
imprisonment, death, any two of the above, or all three.
Thank you and have a nice day!
Re:MSSQL7 Internet Connector License (Score:2)
Re:How about Xing's license? (Score:3)
"[T]o call the sale a license to use is a mere play upon words."
Bauer & Cie. v. O'Donnell, 229 U.S. 1 (US Supreme Court 1913) [findlaw.com]
Is the Xing player bought from a retailer? If so, the receipt from the retailer is a contract of sale. Xing is not a party to this contract and they cannot alter it by subsequent contract.
In all the cases recognizing shrinkwrap licences, the sale was direct from the software company. The theory is that it is "money now, terms in the box, contract begins when goods & terms are 'accepted'".
When there is a retailer in the way, this doesn't work, because the software company isn't a party to the contract of sale, so the shrinkwrap has to stand on it's own as a contract.
Title 17 of the US code, section 117 allows the owner of a copy to install it on one computer. The shrinkwrap basically authorizes you to do something that you already can legally do (ie it gives you nothing). All contracts depend on 'consideration', which means that each side gives up something in a quid-pro-quo. When the consumer gives up lots of rights in return for permission to do something they already can do under law, there is no consideration and the contract is invalid.
All this is my own, non-lawyer opinion, but I have been reading a lot about clickwrap contracts because of the DVD case (I've been heavily involved in Openlaw).
Re:Difference between shrinkwrap and GPL (Score:2)
> tounderstand the source code. Anymore than I
> consider it reasonable that someone should be
> expected to check the designs of a car (e.g. the
> Ford Pinto) to make sure that it won't explode
> when it gets hit. This is something people take
> for granted.
There is a major difference here. Whenever you get into a car, and operate it, you are potentialy at risk of life and limb. As such, I think it is reasonable to require certain saftey tests etc on cars.
Software on the other hand is NOT the same. Anyone with a little time can write software. You are not necissarily endangering yourself by using software.
This I agree with:
> I don't think its reasonable to expect users
> tounderstand the source code.
However...it *IS* reasonable to excpect people to be able to assess risks for the situation that they are in. If you work for an airline, and you are planning to deploy a peice of software for controlling airplane landings, then it is reasonable to assume that you understand the risks involved and will take the necissary precautions BEFORE deploying it. (like performing or having performed source code audits etc).
If you are just an end user at home...and you move all your personal financial info into a spreadsheet, and destroy all your original info, before testing it and using it for a while, then you have noone to blame but yourself if you lose your data.
This one is very common (Score:2)
I tried to hold it up to the light, but I couldn't see through it...
Refund Day (Score:2)
So the scary thing about these isn't just what it holds the user to, but what it fails to hold the issuer to.
--
Re:Xing Encoder Beta Had Symbol Information (Score:2)
Don't forget... (Score:3)
Also, most have clauses now stating "You agree that any legal issues are subject to the jurisdiction of the Courts of Timbucktu", meaning in effect that not only are you supposed to consult a lawyer, but you have to consult one who knows the laws of Timbucktu. And you'll probably have to travel there if it comes to any legal proceedings. Just out of curiousity, which would win if the laws of the place where you live state that any such jurisdiction assignment clause is null and void?
-----
Re:Web Site EULAs (Score:2)
"By using this site, you signify your assent to these terms of use." In other words, in order to view the terms of use, I have to accept them. Also, they can change them at any time, and whether or not I know that, I automatically agree to it, merely because I use their website. Let's not forget that "Without limitation of the foregoing, DISNEY shall exclusively own all now known or hereafter existing rights to the Submissions of every kind and nature throughout the universe and shall be entitled to unrestricted use of the Submissions for any purpose whatsoever, commercial or otherwise, without compensation to the provider of the Submissions." ... "By uploading materials to any Forum or submitting any materials to us, you automatically grant (or warrant that the owner of such rights has expressly granted) us a perpetual, royaltyfree, irrevocable, nonexclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, and distribute such materials or incorporate such materials into any form, medium, or technology now known or later developed throughout the universe. In addition, you warrant that all so-called moral rights in those materials have been waived."
Seems to me this was the same wording that appeared on Geocities after it was consumed by Yahoo!, and everyone made a fuss about it before they changed their TOS not once but twice to stop the complaining. Still, we allow this to exist on the net. Why?
Disney makes it clear that you aren't allowed to download anything from the site if you live in Cuba
"This is the entire agreement between us relating to the subject matter herein and shall not be modified except in writing, signed by both parties. " -- Doesn't that mean they can't modify their TOS unless I sign it first?
In any case, if you want to make claims of copyright infringement, Disney gives you a webpage of instructions [go.com]
And, since I'm reproducing their TOS statement, it's against their TOS for me to be doing this right now.
MSN Hotmail [msn.com]
"You agree to notify Microsoft immediately of any unauthorized use of your account or any other breach of security." -- Imagine if everyone followed that "rule" when they were breached?
You are not allowed to:
"use the Service in connection with surveys, contests", nor are you allowed to run a mailing list, or even send an email to more than one person, commercial or otherwise.
"Harvest or otherwise collect information about others, including email addresses, without their consent." -- I suppose this would apply to the address book as well? Quick, purge them now!
Almost forgot. It's against their TOS for me to be doing this right now.
Tripod [lycos.com]
"Tripod reserves the right to delete any page at any time for any reason or no reason at all."
"Membership is available to anyone over the age of 13" ... "Tripod does not discriminate on the basis of age"
"You may not use the [member] name of any person other than yourself, the name of any entity or organization"
You are not allowed to post "Material that" ... "lacks serious literary, artistic, political, educational, or scientific value."
Angelfire [lycos.com]'s TOS is similar.
FortuneCity [fortunecity.com]
"Pages may not contain, nor contain links to, any of the following:"
"...information or material allowing one to circumvent manufacture-installed copy protected devices and any other form of cracker utility." -- Their policy on DeCSS I supose.
"We support your Freedom of Speech and expression, however, we ask that you understand that there is a responsibility associated with this right." And that's just preliminary findings.
Re:Easy example - Apogee (Score:4)
2. The customer shall not disclose the results of any benchmark test to any third party without Network Associates' prior written approval.
3. The customer will not publish reviews of the product without prior consent from Network Associates.
(copied and pasted from their FTP site greeting).
...phil
Re:MP3.com licence (Score:2)
Re:Difference between shrinkwrap and GPL (Score:2)
> didn't back up, it's your own damn fault.
Yup...been there...tho it was under linux...hard drive failed...lost it all. That was a few years back though.
> I buy some software which includes a documented
> feature X that (say) sorts my data in some way.
> However, feature X was coded by some disgruntled
> employee, and instead of sorting data, it
> actually formats my hard drive.
This would certainly be grounds to sue...there is a huge difference between a codeing error and a conscious malicous attack.
Generally speaking, when people are talking about "Someone to sue and blame" they are talking from the perspective of a company that wants to base some portion of buisness process on a piece of software.
Or rather, the person whose job it is to choose software wants to be able to shift the blame so he doesn't lose his job for...well..not actually doing his job and making sure it works before commiting to using it.
PacBell Internet Services anti-criticism clause (Score:3)
C. PBI reserves the right to suspend or terminate the Service to you, or to suspend or terminate any userID, electronic mail address, Universal Resource Locator or domain name used by you, in the event it is used in a manner which (i) ... (iv) tends to damage the name or reputation of PBI, its parent, affiliates and subsidiaries; or (v) ... .
Their Acceptable Use Policy [pacbell.net] is explicit about this:
Supposedly, Internet service is provided by an "unregulated subsidiary" of the regulated telco, but there's very limited separation between the two on their web site. They both use the "pacbell.net" domain, for example.
Re:Damage waivers (Score:2)
New York Times indemnification clause (Score:2)
(i) violate, plagiarize, or infringe upon the rights of any third party, including copyright, trademark, privacy or other personal or proprietary rights; or
(ii) contain libelous or otherwise unlawful material; and (b) that you are at least thirteen years old.
You hereby indemnify, defend and hold harmless NYTD and NYT WEB, and all officers, directors, owners, agents, information providers, affiliates, licensors and licensees (collectively, the "Indemnified Parties") from and against any and all liability and costs, including, without limitation, reasonable attorneys' fees, incurred by the Indemnified Parties in connection with any claim arising out of any breach by you or any user of your account of this Agreement or the foregoing representations, warranties and covenants. You shall cooperate as fully as reasonably required in the defense of any such claim. NYTD reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
I once wrote to the Times about this, and they told me that if I didn't like it I could subscribe to the print edition.
Re:MP3.com licence (Score:3)
ANY time you buy media with content you get to use the content (assuming there is not already some illegality in the chain - stolen CDs, etc.)
When you go to the store and buy Quake 3, you buy a CD and the inherent right to use the stuff on the CD. Other than technical issues w/ installers and such, you do not have to agree to the license in order to use it.
For decades companies have been trying to dupe people into thinking that they can only buy licenses that the company can unilaterally alter or revoke w/o cause, but it just isn't true. Copyright law trumps your 'you only buy a license' idea.
Software is copyrightable material and as such is treated like any other copyrighted material. It's tragic when people give up their rights when they don't have to but that doesn't change things. If software doesn't have to play by the rules of copyright then why pray tell, should it get to be copyrighted at all. Copyright is a privelege, not a god-given right. (OTOH copyright's mortal enemy, free speech _is_ a god-given right)
Re:Windows 2000 Upgrade EULA (Score:3)
- Put any executables on an SMB share. (Does this include the hidden admin shares (c$ etc.) that are automatically created?)
- Become an RPC server of any sort. (Necessary for Microsoft's "networking".)
- Use VNC, unless the client also has a license.
- Take a screenshot, unless the bitmap has a license.
- Run Apache, unless you set MaxClients to 10 and turn off all other servers.
- Have more than 2 CPUs, even though that version of NT5 will only use 2 of them anyway.
- Have an HTTP server with 10 connections, but behind a proxy on another machine.
- Have more than 10 electronic devices attached to your computer. I wonder if this includes internal devices as well?
Nice that Microsoft's lawyers didn't bother to consult anyone technical before writing this license, because once you count the surge protector, I don't have any connections left for passive FTP! (Microsoft's own networking schemes are clearly not allowed.)Hey, if you want an egregrious agreement... (Score:2)
1.Our Rights: You hereby grant to us the right to distribute and use, on a non-exclusive basis, anywhere and everywhere in the universe, in any media, any sound recordings, compositions, pictures, videos, song lyrics and/or other content (collectively, the "Content") submitted by you to us. We shall have the right to use, market, store, distribute, reproduce, display, perform, transmit and promote the Content on a non-exclusive basis in any way we see fit (for example, as part of a site advertising campaign or marketing promotion) without payment to you. We may therefore, without payment to you, reproduce, distribute, publicly perform, publicly display and digitally perform and/or distribute the Content in whole or in part, alone or together with other material, on all media (including but not limited to CDs, the internet, other web sites, television and radio), and in any format by any means now known or hereafter devised (including but not limited to MP3, Real Audio, and Liquid Audio). No, that was not a run-on sentence. We will not, however, sell or license your Content to others (unless you sign a recording agreement with us). You agree that making your Content available to the public through our web site, the distribution of promotional CDs, and any other distribution or any use for promotional or marketing activity is not a "sale or license." We shall also have the right to use the Content in order to promote our products and services and to use the name, likeness and biographical material and any logos, marks or trade names of you or any individuals performing in your band or otherwise represented in the Content or the artist or band included or referred to in the Content without any payment to you or any other persons or companies. We reserve the right to publish new policies concerning the services provided by us and Content to be submitted by you, and you agree to comply with those policies.
Very cute- 'we don't have to pay you for anything for web distribution, as long as it is not sale or license, but you agree that any other distribution or use is ALSO not sale or license'
2.Ownership of Content: You retain full ownership of and all right, title, and interest in and to the Content, including any related copyrights, subject to the non-exclusive rights granted to us under this agreement. As this is a non-exclusive agreement, you are free to grant similar rights to others at any time, subject to this license, even after you agree to be bound by this agreement.
relatively unboobytrapped- for what good it'll do you. Note you aren't allowed to say farmclub uses your material- see below 3.Your Guarantees to Us: By accepting this agreement, you represent and warrant (that is, you guarantee to us) that: (a) you are of legal age to enter into contracts (you're not a minor). If any member of your group is a minor, you hereby warrant that you have the legal right to execute this agreement on behalf of the minor artist and have obtained all necessary consents and guarantee such person's performance of the terms of this agreement; (b) you have full right and power to enter into and perform this agreement, and have secured all third party consents necessary to enter into this agreement and to submit the Content as provided herein; (c) the Content is your or your band's own original work, and contains no sampled or replayed material or material otherwise created by someone who is neither you nor your band unless, prior to uploading the Content, you have obtained a license permitting the use as provided in this agreement of such sampled, replayed, or other material from the original author and/or performer and the current copyright proprietor of such material and/or the copyright proprietor of the underlying work; (d) the Content does not and will not infringe on any third party's intellectual property or other proprietary rights, or rights of publicity or privacy; (e) the Content does not and will not violate any law; (f) the Content is not and will not be defamatory, libelous, pornographic or obscene; (g) the Content does not and will not contain any viruses or other information which may damage or otherwise interfere with our computer systems or data or that of our visitors or other users; (h) all factual assertions that you have made and will make to us are true and complete.
You shall be fully responsible for any violation of your agreements including the representations and warranties made in this paragraph, and you agree to indemnify and hold us and our customers harmless from any and all damages and costs, including reasonable attorneys fees, arising out of or related to your breach of the representations and warranties described in this section. You are solely responsible for all licensing, reporting and payment obligations of all kinds in connection with the Content, its distribution and use (including but not limited to union or guild payments and any other third party payments of any kind). You agree to execute and deliver documents to us that we may request to confirm our rights under this agreement.
If we get in trouble you pay the lawyers- you are responsible for everything, we are responsible for nothing- oh, and if we ask for papers from you to prove we're not responsible for something, cough 'em up. But wait, there's more!
4.Managing Content and Disclaimers: In order to organize the music on our site for visitors, or for promotional or other permitted uses under this agreement, we will categorize Content that you submit to us. If we make an error in good faith in categorization or presentation of your Content, your sole and exclusive remedy will be for us to take all reasonable steps to promptly correct the error as soon as we become aware of it. That said, we have no obligation to review, edit or monitor any Content. We shall also have the right to review your Content and in our discretion, edit, alter, decline to post or remove any of the Content at any time and for any reason.
You acknowledge that our web site may from time to time encounter problems and may not necessarily continue uninterrupted without technical or other errors, and we shall not be responsible to you or others for any such interruptions, errors or problems or an outright discontinuation of our service.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT WITH RESPECT TO OUR SITE AND ANY SERVICES PROVIDED BY US.
We have no express or implied obligation to promote or distribute the Content in any particular manner or in any minimum quantities. Also, we make no representation nor warranty regarding your chances of getting a record deal with Jimmy and Doug's Farmclub.com nor the terms of such a recording agreement.
You do not have and we expressly shall not provide you the right to use any of our trademarks, copyrights or other proprietary information or property in connection with any activity, or to create any implied endorsement by us of you, unless authorized by us in our sole discretion in writing in advance.
We get to edit your music if you want. Suck it up and deal. Also we don't have to do anything for you at all, and don't even have to keep our website up and running. Oh, and don't go around IMPLYING that we ENDORSE you or anything! Know your place!
5.Termination: At any time 120 days after the date you first upload Content onto our web site, you may choose to terminate this agreement for that Content by sending an e-mailed request to removemusic@farmclub.com. Once we have received your timely request, we will delete the materials you identify to us as yours (e.g., songs and band records) from our system. Of course, we will not be responsible for, and need not take any steps to withdraw or terminate the future distribution of, any copies of any of your Content that may have been distributed (including by download) by us or from our web site before we removed your Content. Furthermore, Content submitted for purposes of ratings by Farmclub.com visitors will be removed from the listener ratings portion of our web site at the conclusion of a ratings cycle, although the Content will remain in Farm Club's system in the Jukebox until you have provided us a termination request as described above. We retain the right to continue any and all promotions containing Content, in whole or in part, initiated prior to the termination date. We reserve the right to terminate this agreement at any time by so notifying you; the agreement will terminate upon your actual receipt of our notice to you or three days after we have sent a notice of termination to the e-mail address which you supply to us in the registration portion of our web site.
You're stuck with us for 120 days no matter what. Then if you want to get out, you have to specify EVERY bit of material that you want us to stop using- except that if the material is being used for 'rating' by site visitors, tough luck, we keep it until the 'rating cycle' is over- oh, and if we started any sort of promotion, tough- we'll continue that as long as we want. Oh- and _we_ get to terminate you at any time on a maximum of three days notice whether or not you recieve our e-mail notice. But wait, there's more!
6.Damages: Except for a breach of Section 3 of this agreement, neither you nor we will be liable for any consequential, indirect, exemplary, special or incidental damages arising from or relating to this agreement (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or other pecuniary loss).
nobody's responsible, now read on...
7.Miscellaneous: This agreement shall be governed by California law, and all legal proceedings, if any, shall take place in California. This agreement sets forth the entire understanding and agreement between you and us and supersedes all previous agreements, communications, oral or written, between you and us. You represent that you have carefully read this agreement, that you understand its contents, and that you have had an opportunity to seek independent legal advice regarding the advisability of entering into this agreement. Whew! Enough mind-bending legalese. Let's post some music! Click the "I Agree" below if you agree to be bound by this agreement.
Guess what- by reading this and clicking through, you agree that you had a chance to seek legal advice about this horrific agreement, and chose NOT to! So you can't even weasel out by claiming you had no lawyer- you agree that you had plenty of opportunity and decided to represent yourself! See you in court, sunshine...
end agreement
I claim bragger's rights as the finder of the _worst_ clickthrough agreement on the Net :P to make matters worse, go and check out their 'summary' of this sometime. They encourage people to read the (legally meaningless) summary and skip the fine print. The summary doesn't even hint at all this garbage... evil, just evil evil evil...
Re:Slashdot Post EULA (Score:2)
* Like patents, it seems you can trademark just about anything these days. So I'm trademarking this post.
This contract is legally invalid (Score:2)
<i>3.
If the Product is not sold, how can I purchase it?
The wording of this contract invalidates itself.
Hmm... (Score:2)
Re:Wolfram want to search your computer today (Score:2)
The stuff I said about 'I found the worst one!'? ...nevermind ;) I found the second worst one. OK, who's got one worse than even this? Any that sign over your firstborn child or something? o_O
This isn't very interesting (Score:2)
Skimming through your comments:Well, yes.That's not what it says. It says that you can't run the program in more than one session at a time. Granted, that's a little vague, but most of us know what it means: You can't dodge the license by installing one copy on a multi-user Un*x system, and letting two hundred people use it at once. Oh, and as far as installing it on more than one computer, that's a standard feature of almost every license. (Although I notice that recent Microsoft licenses often let you install the program on both a desktop and a notebook.)Every license includes that clause. It's probably unenforceable.Again, every proprietary license that I've ever read includes that clause. Whether it's enforceable or not remains to be seen."Standard legal stuff" indeed. So why did you post it?
Re:"You agree to this...whoever you are." (Score:2)
I've always thought the best (=fastest) way to get an ugly law repealed is to make it inconvenient for those it's supposed to benefit.
Case in point: where would Microsoft be w.r.t.
/. is software, too - let's use the laws (even the bad ones) to our best advantage.
My fav (Score:2)
Perspective on *why* EULAs are written as they are (Score:2)
OK, with that disclaimer out of the way, here goes. EULAs are not written with the specific intent to harm the consumer or certainly to upset the end user. EULAs exist to protect companies intellectual property from other companies. Companies do steal technology and ideas from eahc other. Yes, I said steal. Its a cut throat world these days and some people will resort to any measures they can to get an edge. To a much smaller extent, some provisions in a EULA exist to protect those same companies from the incredibly litigous world we live in now, and the never ending stream of ridiculous lawsuits that customers bring against companies (ie, the McDonalds coffee case and others). Its a sign of the times basically.
Even the GPL contains provisions (the no warranty clause) that are there to protect the authors of the software from endusers. Now, some EULAs contain clauses which are down right absurd, but you have to look at the intent behind these clauses and who it is that is writing them: LAWYERS!
Its a catch 22 situation (much like the awful situtation with patents) where you need powerful laws and ridiculously strong EULAs to fight back against the equally powerful lawyers out there to protect a companies hard work. PErsonally, I think alot of the problems would be solved if all companies were required by law to open source all their software. That way, the issue of stealing code from one company would be mitigated because you could not keep it a secret any more. It would also make it easier to determine if a patent is really unique (peer review) and if the reverse engineering methods used were truly legit. It would also be better for consumers and business because you could make your software work with other software more easily.
In short, the whole situation, like patents, is feeding on itself and the only solution is not to expect companies to make their EULAs more friendly to end users, but to get the laws rewritten so many of the clauses in EULAs are illegal and to do something truly revolutionary, like make open sourcing a legal requirement for ALL software, if you want to see any real change.
Until something dramatic happens, expect the laws to get worse and worse and the EULAs to get more and more draconian.
--
Python
Re:MP3.com licence (Score:4)
In order to own something you must satisfy three conditions: (reciting from memory here)
1) You must be able to use the thing as you see fit
2) You must be able to control when and how others may use it
3) You must be able to dispose of it as you see fit (e.g. destroy, sell, give away)
Now then. Let us say that I have a brick. Do I own it?
1. Can I use the brick? Yes. I can build stuff with it, or throw it or stand on it, etc.
2.Can I control how others can use the brick? Yes. (although this is sketchy due to the nature of property as an artificial concept anyway)
3. Can I dispose of the brick? Yes. I can give the brick to you. Or throw it away. etc.
Thus I own the brick.
Now let us consider the BOOK Cryptonomicon, but not the STORY which the book (a tangible thing) contains.
1. Can I use it? Yes. I can read it, light a fire with it, wrap fish with it, store it in the privy for both reading material and toilet paper, kindle fires with it, etc.
2. Can I control how others use it? Yes, just as much as any other piece of property can be controlled.
3. Can I dispose of it. Yes. I can burn it, sell it, etc.
I own the BOOK Cryptonomicon.
But now let us consider the STORY within the book. If anyone has ever owned it, it would be Neal. Let us see if he has ever been able to satisfy these requirements (it's a given that I don't)
1. Can Neal use it? Yes. He can also read the story, gain pleasure from it, rewrite parts of it, quote it, etc.
2. Can Neal control how others use it? No. If Neal permits someone else to use it at all, ever, he cannot take the information back. The 2nd person will remember the story and Neal is incapable of doing anything about it. (other than lobotomizing the 2nd person or something but I doubt this is acceptable)
3. Can Neal dispose of it? No. Again, unless he can force himself to forget about it altogether, he can only give people copies. Whenever anyone reads the story a copy of the story is made from the book (itself a copy of the original in Neal's brain) to the brain of new reader. The original is never transferred at all, although the medium on which some copies are contained may be transferrable.
Thus Neal does not own the STORY Cryptonomicon.
Nor does the publisher. Nor you or I. Due to the nature of reality, the human mind and information it is impossible to satisfy the requirements for ownership when it comes to information.
Now then, as for your continued misconception of copyrights, it has just been proven that information is unownable. Even as pure thought it still cannot satisfy the final requirement for ownership.
US Copyright law does not change this in the least. It does not confer ownership of information. It never has, the copyright clause in the Constitution forbids it twice (which is pretty good for what is IIRC a single sentence) and it would be impossible anyway.
What copyrights ARE is: An exclusive right (for a limited amount of time, the intent being to promote the useful arts and sciences) to the copying of information under some, but not all circumstances.
You can see why this gets shortened to copyright; it concerns (some) copying (sometimes). Copyright cannot be extended to use.
When you copyright some material, what is happening is that no one else is allowed to make an additional copy of it. You hold the 'copy right.' (I bet you wondered why they weren't called licenserights. However, there are no small number of limitations to that right.
The reason that there are limitations is because the justification for having copyrights and patents too (which are wholly artificial - we already proved that information is unownable) is that it will promote the arts and sciences. In order to promote the arts and sciences though, the copyright must exist for a limited time. If it's too long, there will be no advancement because the tools or knowledge require for the advancement are not freely usable.
Imagine if Einstein had had to pay the heirs of Newton in order to do research related to gravity. Einstein would have remained a patent clerk and physics would have stagnated. Information is most valuable when everyone can use it to generate more information.
Other forms of fair use exist because it would be harmful to society if they did not. Copyright exists to help society. If copyright does harm it, it is copyright, not society that must be corrected.
So when you buy a copy of Cryptonomicon, the rights that the copyright holder has are quite limited. The only thing that they can do with the information that you can't do is reproduce it in ways that are not considered fair use (such as making a copy and selling it).
There is no license involved, other than the financial transaction between you and the bookstore that consists of: Here is money for that book.
Copyright holders copyrights are protected by law, not license. Your rights are protected by law which is required to favor you over copyright holders.
Why is this so difficult to understand? Have you READ 17 USC? They're the actual copyright laws. (Although they can be found unconstitutional. Only the copyright clause of the constitution itself is necessarily constitutional, despite conflicting with the first amendment) I'm still going through them - they're long as hell and a hard read - but they're pretty damn clear on this issue. Copyrights aren't licenses.