Re: Is stork a troll? (was Re: Trolltech QT license question)

Let me start by reminding everyone that this chain of arguments relates
*only* to EULAs, shrink-wrap agreements, click-throughs and the like.
It has nothing to do with copyright licenses like the GPL. The two
types of things have totally different strengths and weaknessess.

Eh? You said they're wrong about THIS, given that microsoft claims you
automatically accept by using [not by copying] software, and you have
SPECIFICALLY claimed otherwise. Or did you lose track?

Microsoft does not, to my knowledge, rely on just a notice that by
using the software you accept an EULA. They would be very foolish to do
so because if the notice ever became separated from the software, they
would have no way to argue the EULA had been accepted. If you can find
an example of this, please do tell.

What Microsoft does, in my experience, is use a shotgun approach to
make sure that something sticks. For example, before you download a
product with an EULA, you are required to indicate your acceptance. An
EULA notice is placed on the box. The media may be sealed with a notice
that breaking the seal indicates acceptance of the EULA. There may be a
click-through during installation. The EULA will be installed along
with the product. You may need to indicate your acceptance the first
time you run the program.

Some of these techniques are almost certainly going to stand up in
court and some of them are much less likely to. A mere notice that by
using the software you agree to terms is almost certain *not* to stand
up unless somehow agreeing to the notice was made a necessary
precondition of using the software. Courts have already rejected such
notices when there was no oppurtunity to review the notice prior to
purchasing and opening the program and the software was non-returnable
after being opened.

Note that all of these techniques have weaknesses. For example, courts
have already observed that a click-through to download a program won't
work if I lend you my computer, you download something, and leave it on
my desktop. Similarly, a physical seal on media won't work if someone
breaks the seal, loses the media, someone else finds it, turns it in to
the police, nobody claims it, and the CD becomes the finder's property.

These types of agreements, because they are in fact agreements, will
always have 'innocent third party' weaknesses like this. This is
because the agreement seeks to take away something you would otherwise
have. Copyright licenses, like the GPL, do not have this weakness
because they only seek to give you something you otherwise would not
have.

Note that, as far as I know, none of this is controversial. I would be
surprised if the FSF (or Microsoft) disagreed with anything I said
here, except perhaps any implications as to whether things *should* be
the way they are. (Although if you see that in what I'm saying, it's
unintentional.)

DS

.

Relevant Pages

  • Re: Is stork a troll? (was Re: Trolltech QT license question)
    ... MSDN end user license agreement which may be accessed at ... acceptance of its license terms has a powerful ally in Microsoft. ... The GPL does not have that practice or belief. ... very careful to put "unless there's a EULA" in many of the arguments I make. ...
    (comp.os.linux.development.apps)
  • Re: Office XP EULA with WSUS
    ... you'd generally use a volume license key when ... In the case of individual user acceptance the acceptance ... The Office EULA continues to re-appear for all users who only reside in the ... I know I can log in as Administrator and accept the agreement, ...
    (microsoft.public.officeupdate)
  • Re: A response to Ed Beroset
    ... >>Name one thing that you cannot do with GPL that EULA can do. ... i was talking about the Masm freeware EULA. ...
    (alt.lang.asm)
  • Re: Where can I buy Suse 9.2 Cds on the cheap
    ... In that licence, is the following: ... This License applies to any program or other work which contains ... This is the GPL ... The GPL is NOT the EULA of the CD. ...
    (alt.os.linux.suse)
  • Re: removing eula
    ... you correctly the EULA error is profile related. ... suggestions does Microsoft make to correct the EULA issue. ... If the license acceptance is truly profile ... registry or administrative rights. ...
    (microsoft.public.office.misc)