Don't Like EULAs? Get Your Cat To Agree To Them 874
An anonymous reader writes "Anne Loucks built a device which, when her cat steps on it, can click the 'I Agree' button of a EULA. Who knows what the lawyers will make of this sort of madness. Can a cat make a legal agreement? Does it need to be of legal age? She lures the cat onto the device, and the cat steps on it of its own free will. Anyway, folks who hate EULAs now have another tool to make the lawyers freak out."
Re:Retarded (Score:5, Informative)
Re:Retarded (Score:5, Informative)
usage constitutes acceptance (Score:2, Informative)
Re:Retarded (Score:4, Informative)
Correct, it doesn't need a signature. However, some proof of a 'meeting of the minds' is required. A click-wrap agreement doesn't necessarily provide this.
Too bad courts disagree with you. And this includes the 7th Circuit, which is one of the most influential courts on economics in the nation.
Re:Rules lawyer (Score:2, Informative)
Wrong. Copyright law says you can use software that you have purchased. Including making copies while installing it and into memory and swap while using it. (And you can even make backups of it, both of the install medium and hard drive backups of the whole system.)
Your logic used to be the rational behind EULA. It stopped being applicable when copyright law was amended for software to allow normal usage without violating copyright. (Which disallowed normal usage without the wavier granted you in the EULA.)
EULAs are, nowadays, no more required for using software than for reading books.
Re:Retarded (Score:3, Informative)
I believe that ruling was on whether the act of clicking 'I agree' constitued consent. Click-wrap agreements are often unenfoceable because they contain terms that are either contrary to law or involve giving up rights that cannot be waived in that manner. IANAL
Re:Retarded (Score:3, Informative)
I believe its because terms cant be forced on the user after the sale has been made.
This, I imagine, is why most boxed software has a sticky label on the flap stating that the product is sold according to the terms and conditions laid down by the EULA and if you don't like it, return the product to your vendor for a refund.
Though it still seems to me rather silly that you can't make an intelligent decision regarding whether or not you like it until you've read the EULA - which means you've got to break the seal, which means your retailer won't take it back....
Re:Retarded (Score:3, Informative)
Your original post said a click wrap agreement doesn't provide a meeting of the minds. Then you just said clicking "I agree" has been held to be a valid consent. Those two statements contradict each other. And just so you know, "meeting of the minds" is a different issue than a provision that waives a right that cannot be waived.
And by the way, if you are referring to waiving your right to fair use/reverse engineer, well good luck getting that part thrown out [freedom-to-tinker.com]. IAALStudent
Re:Retarded (Score:5, Informative)
Re:Retarded (Score:3, Informative)
Well, my understanding of a 'meeting of the minds' is a bit beyond consent. Granted, the only law class I've ever taken was an undergrad course on business law that seemed to concentrate mostly on contracts and liability, but my understanding is that a meeting of the minds is shown when it can be successfully proved that both parties fully understand what they are agreeing to.
Just because you 'consented' to an agreement does not mean that you fully understood the terms of the agreement -- IOW, not just consent but 'informed consent'. Signed contracts have been held null-and-void because one of the signing parties didn't fully understand what he was signing and that could be shown. One of the things that might show that you don't have a meeting of the minds is if you 'signed' away rights that you know that you can't sign away in that manner or that the contract's terms state that the parties are agreeing to something that is illegal. (Note that a contract that contains terms that are illegal can be held null-and-void for other reasons as well.)
You might disagree with my viewing it this way, but my business law professor, who is a lawyer, didn't seem to when I took that stance in a paper I wrote for the class. ;)
Re:Call me crazy (Score:5, Informative)
I'm pretty sure that, no matter what, you can't authorize anything other than another human adult to act on your behalf.
At the same time, if she's luring it there with bits of food or whatever, then that's (in my mind) her effectively agreeing to it. Now, if she set this thing up, and the cat just happened to walk on it at some point, I could maybe see that, but I don't know that a judge would see it that way.
You're confusing two things...
You can only authorize another adult to act on your behalf as your agent.
You can utilize as an instrument anything, animate or inanimate, including a pen, a knife, a cat, or another person. I cannot claim my pen signed the contract, my knife stabbed you, my cat clicked the EULA, or Bob committed a battery on you when I shoved him into you against his will, and that I am thus responsible for none of the above: all of them are instruments of my will to cause that action. As I intended the action, the instrumentality is irrelevant.
Re:Retarded (Score:5, Informative)
Re:Retarded (Score:2, Informative)
Jesus Christ. When I say 'People think copyright law says X, but it actually says Y', you'd think people would be smart enough to actually check to see if I'm correct before asserting that, no, it's X.
Title 17, Section 1, 117. Limitations on exclusive rights: Computer programs
(a) Making of Additional Copy or Adaptation by Owner of Copy. - Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or
(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.
Section 106 is the law that creates the exclusive rights of copyright holders to copy their own works, and no one else, and is the entire basis of copyright law. If you break copyright, you're breaking that law, all the other laws are exceptions of that law, making things legal. (Except 106A, which also makes it illegal to misattribute copyrighted works even if you don't copy them, and isn't relevant here.)
So saying 'Notwithstanding the provisions of section 106, it is not an infringement...' means 'Regardless of what the copyright law stated above would appear to say about all copies being illegal unless made by the copyright holder, it's actually not an infringement of copyright law to...'.
Here it is minus some extranous 'or's:
Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make another copy of that computer program provided that such a new copy is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner
It's right there in black and white, unless you think 'Installing software' isn't essential in 'the utilization of software in connection with a machine'.
You have the right to fucking install software that you 'are an owner of the copy of' without any damn 'permission', period, full stop. And make any copies in memory and swap and wherever you need to have the software operate.
Re:Retarded (Score:5, Informative)
Erm ... that's not even close to what Lucy was about. Lucy had little to do with intoxication. Straight from the op. Ct., "In was in fact conceded by defendants' counsel in oral argument that under the evidence Zehmer was not too drunk to make a valid contract."
Lucy revolved around whether the contract was valid based on "outward expression" rather than secret intent. Zehmer claimed he was "joking", despite talking for months about it, despite writing it down, despite getting his wife to co-sign it. The Court found that Lucy entered into the contract in good faith. If this contract weren't valid, how could any reasonable person want to enter into a contract ever without mind-reading capabilities?
And that's why Lucy is taught in every contract law intro class.
Re:Ask A Kid (Score:3, Informative)
Re:Retarded (Score:3, Informative)
Or maybe one party folded to save themselves from the attorney costs? Or even settled outside of court?
Last I checked, when I go down to the local software vendor and buy a piece of software. My contractual obligation for gaining ownership of the property is between myself and the agent of the merchant selling me the product.
At no point do I have any dealings with the manufacturer (unless the merchant is the manufacturer). Moreover, at no point does the merchant or it's agent make any mention of any EULA's that must be agreed to prior to the conclusion of our contractual agreement of exchange of goods in compensation for money.
The merchant and/or it's agent are agreeing to sell me the product, and it's contents, including what is contained within, to me. The ONLY limitations on my purchase are that they require an equitable exchange in money, and maybe agreement to adhere to a return policy (if they have one).
Those are the only limitations and agreements placed upon my purchase. In contract law, in order for a contractual agreement to be binding, there must be "consideration". Or an equitable exchange.
The "consideration" is that the merchant gets my money and I get the goods. AT THAT POINT I OWN THE GOODS. THEY ARE MY PROPERTY (within copyright limitations). So what "consideration" would the EULA owner be "offering" me? At this point I already own the contents. It is too late to include a limitation on my ownership and use after the fact.
I already own the contents of the product at this point, so any additional licensing inside the box is irrelevant.
In order for the licensing in the box to be binding, I must first agree to it PRIOR to conclusion of the contract. Since the merchant never mentioned, included or stipulated agreement to the EULA, I am not bound by it.
This is the equivalent of buying a car 100% cash down and signing the papers. And after you sign the papers and get in the car to drive home, the dealer comes out and tells you that before you leave the lot, you have to agree to sign some other contract saying that you'll do some other thing for the privilege of driving the car. The car that you already bought and paid for.
In REAL business, contracts are presented up front, BEFORE the contractual agreement is concluded. (Money exchanges hands).
Any large business would laugh at you and then sue the crap out of you if you tried to throw in an additional contract and force them to agree to it AFTER you already sold them the product and received money for it.