h a l f b a k e r y
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Clarification part:
A contract is an agreement between two parties and becomes binding when the agreement is made. If you think I've seen and signed/accepted your contract but I have not in fact done so, then your contract is not binding on me. After all, how can I be bound by a contract I've neither
seen nor accepted? Hence, this idea acts to enable me not to see EULA and TOS forms of contract, and by not seeing them not be bound by them.
Original idea text:
Many bits of software, websites, etc. have End User License Agreements and Terms of Service which are not clearly stated at the point of purchase or initial access.
Some people think this is fine, but I don't.
It is fundamental to a contract that it is an agreement between two parties, and there's no way to reach an agreement with a computer screen. There's no way in which you can object to a term, or ask for something to be clarified and send it back for revision.
The salesperson in the store should have to explain the terms of the agreement to each customer, answer all questions about it, negotiate any changes and adjust the price if required, and get both parties to sign it before allowing the sale.
The way to bring in this age of honesty in licensing is to make sure that these hidden term systems are useless.
This is through EULA and TOS hider. This is a bit of software which intercepts all text which looks like an EULA or a TOS and replaces it with "No terms and conditions here mate".
This can be done for CD/DVD installations by forming an image of the disk, editing out any such texts, mounting the new disk, and hiding the old disk from the OS.
Internet installations should be handled by intercepting downloads in the same way that virus scanners do it. In this case, instead of scanning for a virus, it is scanning for terms and removing them.
Website-based terms can be removed via a browser plugin.
Annotation:
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Instead why don't you propose the legal changes that would actually protect your rights as you see them? Isn't anything else childish? |
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(-) Yeah, that legal reasoning behind this doesn't work for me, either, not even long enough to be a joke. |
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You can still do all the explaining, answering, negotiating, adjusting and agreeing. Only, not within a funnel or conduit that is designed to go ahead, proceed to and directly effect the actual sale. You'd have to back out at that point and take your case upstream using technology that isn't directly within the frame of the computer screen. |
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No. There should just be some requirement for clear English and a general tendency towards GPL and the like, depending on the situation (e.g. a starving programmer versus a huge MNC). Otherwise you'd have no idea what naff gunge ends up on your hardware. |
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There is a real-life problem when a customer disagrees with a EULA and the store refuses a return because the software has been opened. I can imagine a test case in a court, sometime, somewhere based on what constitutes 'reasonable expectation of the contents of a EULA'. |
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The EULA should be available to read online prior to any purchase. |
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The packaging of the software should clearly state this for the potential consumer, and encourage them to read and understand the EULA before they purchase. |
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The customer should clarify the contents, and if need be negotiate any changes to the EULA with the manufacturer prior to purchase. If the potential customer negotiates any changes (yeah, right) they are provided with a one-off pass-code. Depending on the change, a fee could be charged for the pass-code. |
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When it comes to the EULA part of the install the customer can enter the pass-code (in a clearly marked field) instead of clicking on agree. The revised EULA is automatically downloaded and displayed. The customer then clicks to agree on that. Satisfaction guaranteed! |
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People frequently "agree" to nasty things being installed on their computers or nasty things happening to their personal data by clicking on "I agree" without having read or understood the EULA. This seems to be the main problem. Whereas it is foolish to do this, the EULA is sometimes obfuscated or very long, discouraging people from reading it, and not everyone has either a law degree or the sufficient lack of a life to plough through the whole thing (though i personally always have read it all). If it were online beforehand, which actually it sometimes is, that would still leave the problem of long-winded and obscure language. That is the major issue as i see it, and this can be changed by some sort of test or standard for clear language. |
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Not to mention being vaguge and broad reaching. EULA's will have their day, like liability waivers did in the ninties. Everything you touch will have one or two, then they will start to hold less and less legal water as we realiz e that much legal software was produced by violating the EULA of other software. Some of these are so broad reaching (if you use this software you are agreing never to design or talk about anything similar untill you die) that they are laughable. |
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We need the government to protect our rights as creators and innovators more than it protects our rights as shareholders if we are going to compete with other creators and innovators in contries where there are no protections at all. |
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//If it were online beforehand, which actually it sometimes is, that would still leave the problem of long-winded and obscure language.// |
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I agree, which is why I talked about understanding and clarifying the content. But yes, it needs more, so... |
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A //test or standard for clear language// sounds like a good requirement to allow the above to happen. |
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However, a clearly written EULA that's not available to read beforehand still falls foul of the 'can't take it back if you don't agree' problem. Especially if some of the terms are as WcW describes. |
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I think that EULAs should provide the opportunity to read/negotiate prior to purchase AND adhere to a clarity standard. (I can dream.) |
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Yes, i know what you mean. I wonder how many EULAs are really unavailable online, because some are on the company websites and some of the others, particularly contentious ones, are easily found by Googling - for instance, i just found Kazaa and RealPlayer immediately with no trouble. People could Google the EULA/ToS before they download or join anything. That wouldn't solve the problem of trying to follow the interminable twistings and turnings of the language. |
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[WcW], i really hope you're right. I think you might be, actually. |
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I've tried to clarify things at the beginning of the idea. I feel that many annotators have missed the point and the basis of the idea. This isn't some kind of criticism on EULAs but a way in which you can legally avoid being bound by them but still be unimpeded in your use of the software. |
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IANAL, but i would imagine that this would be the same as signing a contract without reading it, which is still binding. If you actually installed something which did this yourself, it would be the same, legally. However, i can see a way around it. If it was a program which installed itself silently and unknown to the user, i.e. a virus, and replaced the EULA with GPL, it would not then be the user's fault they hadn't read the terms and conditions. That might be a way of doing it. It would probably bring the anger of the Man down on you with some force if you were responsible for that and could be traced, but it would probably be quite an altruistic thing to do. |
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The point is, you would have to have it on your computer without realising it was there. |
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As nineteenthly. Vince*3, I don't think any of us missed the point of the idea, but you seem to use a very naive interpretation of law, be it criminal or civil. We were trying to find a legal way of dealing with the issue (funnily enough the UK's consumer council is looking at this problem right now). |
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Your argument is akin to saying that a person cannot be guilty of an offence (/infraction) so long as they are not aware that their actions constitute an offence. That is, of course, total shite, since ignorance is not a defence. |
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//a person cannot be guilty of an offence// Whilst your argument is true in the case of law, [boysparks], it does not hold for a contract. A contract needs to be made in order for it to have any force; and provided that you have not signified your acceptance of the contract in any way then I don't see how it can have any force. It remains just a draft of a contract for your consideration until you have agreed to it... |
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I am so far from being a lawyer that it's just not true, but there is a legal concept of willful blindness, which is the attempt to avoid liability, including civil liability, by deliberately preventing oneself from being aware of facts which would render one liable. If someone intentionally installs anything on their computer knowing that it will prevent them from being aware of ToS's or EULAs, and they then click on "I agree" or whatever, they are liable, and this does apply in contract law as well as other areas, and in civil agreements. Therefore, if there is mens rea, one really is liable. |
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This doesn't alter the fact that there is a way round it if something gets installed without the user's knowledge. The best way of doing this would be through some kind of security hole by a virus-like program. So, i do believe your idea could work, but to have legal force it has to be on the computer without the user believing there is anything unusual about the terms and conditions to which they are then agreeing. So yes, it can be done, but not by the user (unless they get dementia or something). |
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In legal circles this is known as the
fingers-in ears "LaLaLaLaLa" defence. |
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I don't think you could prove that you *didn't* see the terms and conditions... |
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However, since I assume that mostly they all say pretty much the same thing, perhaps there could be an executive summary somewhere (on the web) that points out the unusual terms, if any. |
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They don't say the same thing. If they did, you'd have some idea of what you were letting yourself in for. They sometimes slip in nasty stuff about spyware and so on. |
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In that case, it would appear as an unusual term in an executive summary, wouldn't it? The summary would be best maintained by an independent body, which probably brings its own problems (responsibility etc.), but I wonder if anything based on the Wiki idea might work out. |
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That more or less exists already, because there's a lot of online attention to these issues, so all anyone really needs to do is Google it, maybe by putting "<application name> sucks" into the search box, and there you go. However, a wiki for it would be a great idea! |
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Why not insist that only very limited protections be provided to software and intellectual property generally? Something that protects authors from outright piracy but doesn't punish innovation. A new piece of software could be examined for the degree of novelty it shows and issued a new copyright. True also for any content or redistribution, if the mode or delivery is changed significantly then it is novel content and should be given it's own rights. Throw this end user contractual crap out the window. The little guy would have a better than fighting chance if they could turn Windows(quicktime, photoshop, etc.) into a better product. |
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Microsoft has just announced it is opening up its software. |
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The problem with ignoring EULAs is that they are written to protect the IP of the software developer. A little case law that obviates the end users' acceptance of malware would / will iron out that issue pretty quickly. In other instances, the EULA is often specific to one jurisdiction and likely not fully applicable to users in others. Just click through them and employ good spyware and adware filters. |
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I always use open source stuff anyway, if i can, which gets round the problem. |
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