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."
Call me crazy (Score:5, Insightful)
Re:Call me crazy (Score:5, Insightful)
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.
Re:Call me crazy (Score:5, Funny)
Re:Call me crazy (Score:5, Funny)
FLAWLESS VICTORY
Re: (Score:3, Insightful)
Re:Call me crazy (Score:5, Funny)
Re:Call me crazy (Score:4, Funny)
Re:Call me crazy (Score:5, Interesting)
I just asked my father, who is a lawyer, a few questions about it. Note that he is primarily what I like to refer to as a financial lawyer (bankruptcies, IRS/tax problems, certain real estate things, wills, and a few others), so this is outside of his normal repertoire. Here was his answers (paraphrased):
Q: Do you know what an EULA is?
A: No
Q: You know, those end user license agreements you have to accept when you buy or download certain software?
A: Oh ok yes what about them
Q: If you built a device that would allow a cat to accept an EULA, would you be legally bound by the EULA?
A: Well it depends on the intent. If you specifically built the device and coerced the cat your intent is obvious and you would probably be held to the agreement in court. If the cat was just dancing around on your computer and accepted it though you probably wouldn't be bound.
Q: What if you got a small child to accept the agreement, would they not be bound because of their age?
A: It depends on your jurisdiction and the law of that area, but here in Illinois it probably wouldn't be binding in court and would be tossed out.
Q: Do EULA's violate any sort of doctrine of first sale since they require you to agree to the license after you've bought the product and limit what you've gotten if you don't agree to it?
A: I'm not exactly sure, but its defiantly a good question. They could get around that pretty easily by making you agree to the EULA before you purchase the computer, but I'm not familiar with the law so its just an educated guess.
There you have it.
Re:Call me crazy (Score:4, Insightful)
Q: What if you got a small child to accept the agreement, would they not be bound because of their age?
A: It depends on your jurisdiction and the law of that area, but here in Illinois it probably wouldn't be binding in court and would be tossed out.
Wrong question... If you got a small child to accept the agreement for you, would you be bound?
And yes. The child is an instrument of your will. Note - they are not acting as your agent, as a child cannot be an agent. Instead, they are your instrument, much like a pen signing your name or a cat clicking a button for you is an instrument. You are responsible for acts committed through instruments of your will - no claiming you didn't murder the guy, the bullet flying from the gun in your hand did it.
Re: (Score:3, Interesting)
A EULA governs the sale of software, which is considered a "good" under UCC Article 2 (Uniform Commercial Code). The UCC has been adopted in every state, in slightly modified forms. The UCC allows an authorized agent to contract on behalf of the principle, and in fact allows "electronic agents" to bind the principle. If a computer can act as your authorized agent, surely an animal can.
This does not pose significant difficulties for contract law. It's just stupid. But don't bother with the legal answer - con
Re:Call me crazy (Score:5, Funny)
I lured the cat into hitting cancel, but he missed! What now!!?
-Dan
Re: (Score:3, Funny)
I lured the cat into hitting cancel, but he missed!
Note that this would require a cat since most other trained animals would just do what you told it to. Only a cat is obstinate enough to push the opposite button just to spite you.
And no, it's not because cats are smarter.
</cat_hater>
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:Call me crazy (Score:5, Insightful)
Re: (Score:3, Funny)
And since one has to deliberately get their cat to click the button, they clearly show their intent to agree to the EULA.
As any cat owner knows, you don't have to "deliberately" do anything for them to have an excuse to walk across your keyboard.
Re: (Score:3, Insightful)
"Walk across"? More like "lie down on".
And give you dirty looks should you be so uncouth as to try to move them or type under/around them.
Re:Call me crazy (Score:5, Insightful)
Either that or you still actively caused the cat to click it, therefore you did it. Just like if you held a basketball over your mouse and dropped it to cause the click. The ball didn't agree to the EULA, invalidating it, you agreed to it and just clicked the mouse button in a convoluted way.
Just because you didn't click the link/button in the traditional, hand on mouse, one finger on the button does not mean you did not agree to the EULA.
Re: (Score:3)
No, it's a cat. I've got 3. Sure, if you don't want them all over your keyboard and mouse, they're bound to leap on it at some point. As soon as you want them to, though? Forget it unless you trick them into it.
Re:Call me crazy (Score:5, Insightful)
> Call me crazy, but since you built a device to allow your cat to agree to EULAs,
> wouldn't that mean you authorized the cat to act on your behalf - regardless of how
> inept a decision maker it may be?
Cats are property. Property cannot be "authorized", cannot "act", and cannot make decisions. The cat is merely a tool she uses to push the button.
"I didn't sign that contract. My pen did. Sue it."
Children (Score:5, Interesting)
Just have your underage kid click. They cant enter into a contract.
Of course if this happens too much, they will require you to produce a CC# and SSN for each EULA that gets sent back to the company. Or even force you get it at the store you bought the box from.
Re: (Score:3, Insightful)
Absolutely not. The software industry lives by "pig in a poke" contracts and by convincing people buying software that that's exactly what they do - buy software. If you have to sign a contract & actually agree to the license before you buy, people would stop buying. In fact, you wouldn't be able to sell this ty
Re: (Score:3, Insightful)
The answer is the same for children as it is for your cat -- you are still responsible for their actions.
Dog bites someone? You get sued.
Kid bites someone? You get sued.
Kid steals music? You get sued.
Cat steals Word? You get sued.
Re: (Score:3, Insightful)
Just have your underage kid click. They cant enter into a contract.
Of course if this happens too much, they will require you to produce a CC# and SSN for each EULA that gets sent back to the company. Or even force you get it at the store you bought the box from.
As for the last option, if they were required to provide you with the terms and conditions when you bought the product, I would consider that a small victory.
Of course, that may seem unreasonable, considering the complexity of the contract and that you are now requiring Walmart employees to handle hundreds of legal contracts...
But it's not my problem...The terms of the transaction should be negotiated (or dictated) before the sale is complete, not after.
If the terms are too numerous and complicated to discu
The alternative case (Score:5, Funny)
Seriously (Score:5, Funny)
EULA is a silly name for a CAT (Score:4, Funny)
Ask A Kid (Score:4, Interesting)
So what if it's a cat? (Score:5, Interesting)
Can a cat make a legal agreement?
A cat is property, not an individual. Animal law has been quite unsuccessful in breaking out of that mold. So, no, a cat can't make a legal agreement anymore than your keyboard and mouse can.
However, the cat here is just a tool for you to accept the agreement. If you set up a device to automatically agree to a license without you fully reading it, you've still manifested an intent to accept the terms, whatever they may be. I don't think a court would have anymore problem with holding you to the contract than if you used machine to automatically stamp a signature on a stack of paper contracts. It wouldn't matter if it worked on a timer, on a RNG, or on the fickle movements of a cat so long as you set it up to happen with certainty that it would eventually happen (because you can't proceed with the installation without it happening).
Re:So what if it's a cat? (Score:5, Funny)
However, the cat here is just a tool for you to accept the agreement. If you set up a device to automatically agree to a license without you fully reading it, you've still manifested an intent to accept the terms
Yeah, well, what if you used Schrodinger's cat? Then you have both accepted and not accepted the terms.
Re:So what if it's a cat? (Score:5, Funny)
However, the cat here is just a tool for you to accept the agreement. If you set up a device to automatically agree to a license without you fully reading it, you've still manifested an intent to accept the terms
Yeah, well, what if you used Schrodinger's cat? Then you have both accepted and not accepted the terms.
The BSA would just sue you twice, using the "signed it" theory in one case and the "didn't sign it" theory in the other.
They're total quantum assholes!
Re:So what if it's a cat? (Score:5, Funny)
Your decision will collapse to 'accepted' once it has been observed in a court of law.
Re: (Score:3, Insightful)
You can't decide if a bear will maul you any more than you can decide if you cat selects accept over deny. Now, repeating the process until it accepts is another story. However, could they prove you did or not?
Re: (Score:3, Insightful)
the cat here is just a tool for you to accept the agreement. If you set up a device to automatically agree to a license without you fully reading it, you've still manifested an intent to accept the terms, whatever they may be. I don't think a court would have anymore problem with holding you to the contract than if you used machine to automatically stamp a signature on a stack of paper contracts. It wouldn't matter if it worked on a timer, on a RNG, or on the fickle movements of a cat so long as you set it up to happen with certainty that it would eventually happen (because you can't proceed with the installation without it happening).
I agree. The best defense along these lines would be a system that randomly clicks your screen (in a random place, at a somewhat infrequent interval) all the time. When you have a license to bypass, leave it open and walk away (perhaps put another window over the "I disagree" button). It'll eventually get bypassed. Even this is stupid, and even this might not stand up in court.
More notably, the concept of EULA itself might not stand up in court. If you want a legal tact, I suggest that one. EULAs ar
Re: (Score:3, Interesting)
Fair enough. (Score:3, Interesting)
I think you're probably right. Still, before stating a legal opinion, you really should state your legal training or (I assume) lack thereof.
Fair enough. I am not a lawyer, but I am a law student who has had Contracts (a did decently in the class). I've never seen case law on the matter, but I remember asking a similar question to my professor about machine-assisted acceptance, and it's really about manifesting the intent to accept the agreement.
Most EULAs start off with language like the following:
YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE. IF YOU DO NOT AGREE, DO NOT INSTALL, COPY, OR USE THE SOFTWARE; YOU MAY RETURN IT TO YOUR PLACE OF PURCHASE FOR A FULL REFUND, IF APPLICABLE.
(Text copied from the Windows XP Home Edition EULA.)
Thus the contract has set forth the method of acceptance. If you perform actions that a ration
free will? (Score:5, Insightful)
"She lures the cat onto the device, and the cat steps on it of its own free will."
Doesn't really seem to be free will then, does it? I mean, is the term "free will" even allowed in the same sentence with "lures"?
A hundred uses! All invalid! (Score:4, Insightful)
I've set up something even better. (Score:4, Funny)
I have a box in which I seal a cat along with my computer and a radioactive isotope. I connect an electronic monitor to the cat, and it is rigged up to click the "Agree" button if the cat dies.
Apologies in advance (Score:5, Funny)
That won't take you off the hook. By luring the beast onto the device and having it agree to the EULA, you're employing the it as your proxy or agent, your utensil or tool, your...um, what's the word...your cat's-paw.
Re:Apologies in advance (Score:5, Funny)
what you are referring to is power of catorney.
What if you bypassed the EULA (Score:5, Interesting)
What if someone bypassed the EULA entirely (e.g. hacking the installer so that "I Decline" still continues).
Since you've never agreed to the EULA in the first place, you're not disallowed from hacking it (consumer-unfriendly millennial laws not withstanding).
Re: (Score:3)
What if someone bypassed the EULA entirely (e.g. hacking the installer so that "I Decline" still continues).
Since you've never agreed to the EULA in the first place, you're not disallowed from hacking it (consumer-unfriendly millennial laws not withstanding).
Wouldn't that violate the DCMA? Circumventing and such?
put it in a box (Score:3, Funny)
EU of the LA (Score:3, Insightful)
Cat? (Score:5, Funny)
This is not news! I have a mouse that has been accepting EULAs for years!
All EULAs are superceded by my posted SPLAs (Score:5, Interesting)
I have an SPLA posted on the front of my computer, very clearly labelled, and in big bold print.
It basically states that by allowing your software to be installed on this hardware, you (the software provider) agree to the following.
1) Your EULA is null and void.
2) Your software cannot make any changes unless I agree to them beforehand.
3) Your software cannot call home unless I authorize it, every time (this is enforced via firewall rules outside the box).
4) Your software cannot interfere with the operation of any other software on the hardware installed to. (prohibits viruses, malware, adware and automatic disabling software)
5) Any violation of the above terms can constitute a cyber attack against the hosting hardware, and treated as such, and dealt with using the strongest legal measures available at the time of attack.
Granted, my SPLA will hold up in court as well as their EULA, but it is posted, and yet their software installs - so they are as bound by my terms, as I am by their terms.
Sure, *this* will be the final straw (Score:5, Funny)
Do they have your signature, do they have a spoken contract, do they even have any communication of acceptance? No, but they don't seem think a judge will require any evidence of agreement before holding you to page after page of "boilerplate" mixed with "gotcha" legalese.
Did they already take your money and give you your product before even showing you a EULA? Yes, but they don't seem think a judge will care about "first sale" doctrine when deciding how valid that EULA is.
Does the EULA offer you any new rights beyond what copyright already allows you to do? Does it offer anything of value in exchange for what they claim you're voluntarily giving away? Usually no, but they don't think judges will bother worrying about "consideration" anyway.
Are they trying to disable the advertised features of their product until and unless you agree to additional terms made after the sale? Yes, but they seem confident that a judge won't invalidate terms agreed to under duress.
And up until now, legal challenges looked like they could go either way. But what if we used a cat? That's foolproof! Surely if a cat clicked the button, no judge would possibly enforce that EULA! That's been clear since Plessy v. Whiskers! Case dismissed!
Better solution (Score:5, Funny)
Get a bottle of tequila. Drink at least a quarter of the bottle. Take pictures or a BAC test or get witnesses or something so you can later prove you were hammered. Click "I agree." You can't be bound by a contract you sign while inebriated, so you didn't really agree. Much cheaper than cats in the long run; no need to worry about feeding and cleaning litter boxes and cuddling and such. Plus getting drunk is fun!
Needs a "sarcasm" tag? (Score:5, Insightful)
I am amazed by all the posts complaining that this is "retarded". Guess what, folks... she may not be completely serious.
The same woman also claims that, if you watch the three best Star Wars movies in order, they make a story arc different from what George Lucas had in mind overall.
http://www.ohesso.com/essays/essay004.htm [ohesso.com]
She also devotes a whole essay to explaining how her friends like to drink beer out of a prosthetic leg.
Next up: Slashdot analyzes the wisdom of Steven Wright to decide which of his suggestions are best not tried out in real life.
P.S. Her funniest essay is "I Like Babies". It's not what you expect... or, if it is, you are very strange.
http://www.ohesso.com/essays/essay002.htm [ohesso.com]
steveha
Buy & Pirate it (Score:3, Interesting)
Simple solution: For every piece of software you own, buy the software, then download a copy off the Pirate Bay. Claim you "just like to keep things in their boxes, like comics & stuff".
Now you never read, or agree to any EULA, and since you own the software I'd love to see the look on their lawyers faces if presented with this case :-D
Yes.. (Score:3, Insightful)
It won't make lawyers "freak out"... (Score:4, Insightful)
It'll make them laugh at how naive you are... Now where was that link to the "You Are Not a Lawyer!" column?
So you have no license to use it (Score:4, Insightful)
So your cat agreed to the EULA, and by doing so, gained a license to use the software, for themselves.
So you still have no license to use it...
The fact that the software is now installed on your PC, does not mean it is yours. You might as well torrent it.
Where's the big news?
"I accept" === "Get Lost Slimy Creep" (Score:4, Funny)
The phrase "I Accept" has become the internationally recognized slang for "GET LOST YOU SLIMY CREEP".
Tell me honestly, have you _ever_ clicked on an "I Accept" button with the intent in your mind to be bound to every term (of which you are lucidly aware) of an EULA?
No. You didn't.
The thought uppermost in you mind at the time of going "Click" was one of...
So that's it. Somebody create an web site explaining what the phrase "I Accept" means. (You can reference several of my posts on slashdot and the like).
Then somebody else can create a Wikipedia entry referencing the other web site.
Wait a few months until it makes it's way into the latest dictionaries and the like.
And there you have it. In court you say, "But didn't you know, the commonly accepted meaning of "I Accept" is "GET LOST", see here in this dictionary of common usage, and I really really did mean that when I clicked on that button.
Re:Retarded (Score:4, Funny)
Tell me about it. EULAs are retarded.
Re:Retarded (Score:5, Funny)
Re:Retarded (Score:5, Informative)
Re:Retarded (Score:5, Funny)
Re:Retarded (Score:5, Interesting)
You can always get drunk...most contracts aren't enforceable if one party is incapacitated.
If you voluntarily incapacitate yourself by getting drunk, you're responsible for any and all contracts you enter into while impaired. See Lucy v. Zehmer, the "heh, sure, I'll sell you my house for $100. I'll even sign a contract. I know you don't have a hundred dollars on you- oh, crap" case.
Re:Retarded (Score:5, Interesting)
If you voluntarily incapacitate yourself by getting drunk, you're responsible for any and all contracts you enter into while impaired. See Lucy v. Zehmer, the "heh, sure, I'll sell you my house for $100. I'll even sign a contract. I know you don't have a hundred dollars on you- oh, crap" case.
Intoxication was not a significant factor in Lucy v Zehmer. The court did not believe he was actually drunk at the time. The real issue was whether he was actually joking about the intent to sell. They found that he was not joking, and even if he were, his manifest intention was serious and thus his hidden inner motive was irrelevant.
Re:Retarded (Score:5, Informative)
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:Retarded (Score:5, Funny)
Confused (Score:5, Funny)
It might get me out of the EULA, but then PETA will be all over my ass.
Nahh, you must embrace them ! (Score:5, Interesting)
I put a text file at the root directory, reading more or less :
"By actually completing the install process on this computer, you accept to deliver a bug-free software, that will not nag me every 5 minutes with internet connection requests, not hog the cpu and memory and actually provide me with all the benefits you promised in your marketing brochure. This Eula allows you to install ONE (1) copy of your software and supercedes all preceding agreements that might exist between us. Ignorance of the existence of this Eula cannot be used as an argument not to deliver your promised benefits. If you do not accept those conditions, your software must fail to install. Otherwise, you recognize that you accept all those conditions and must perform as promised"
Now I'm covered... 8)
one catch (Score:4, Interesting)
I think this is an incredibly great idea in terms of concept. its time we started managing back and not accepting everything... but collectively counter them..
obv there are large reasons why yours is funny and not valueable. They have no way of knowing whether or not the file is there much less whether they agreed to it. Further if they were able to read it you'd probably have a seperate case on your hands against them for 'hacking/snooping' on your computer.
Now if you could find a way to get them to actually do something to sign it that would be brilliant.. perhaps a call in to their techline / conveniant use of their automated responses. this would be quite interesting if there was someway in which you could get them to actually 'accept' it.
problem is getting them to 'do' that. when I install the program the license etc pops up and asks me. While not realistic, i have the opportunity to decline the license and not install. At which point you would try to return the software; likely be told they don't accept returned opened software, and if my understanding is correct you would have to contact the producer to receive a refund.. which is quite obsurd.
Re:Retarded (Score:5, Funny)
I CAN HAS LAWSUIT?
Re:Retarded (Score:5, Funny)
Re:Retarded (Score:5, Funny)
Only slightly better legal advice than "Don't like your girlfriend? Tie the knife to a dachshund and call it an animal attack."
Re: (Score:3, Interesting)
It's stupidity at it's height. Not agreeing to the EULA doesn't put you in a stronger position [wordpress.com]. Without agreeing to it, you have no right to copy the software, and they'll just sue your ass for copyright infringement.
Re:Retarded (Score:5, Interesting)
It's stupidity at it's height. Not agreeing to the EULA doesn't put you in a stronger position. Without agreeing to it, you have no right to copy the software, and they'll just sue your ass for copyright infringement.
Wrong.
The law was changed/amended a while back to allow "incidental" copies to be made that would occur in normal use without needing any extra permission from the copyright holder, other than legitimate purchase. This was mentioned in a post above.
The company in question could attempt to sue for breach of contract or similar civil tort, but not under copyright law under the notion that not agreeing to the EULA makes any copy of data into RAM etc a copyright violation.
Of course, that may have changed as I'm not sure anyone has yet determined what all was slipped into the stimulus package at the last minute. Seeing as how the Democrats are famously in the bag for Hollywood & the RIAA/MPAA, it wouldn't surprise me if they added some kind of last-minute paybacks to these folks. As I understand, the text of the stimulus package was initially placed online in a searchable format and then, realizing their mistake, was quickly format-shifted to a non-searchable text. (.pdf? Not sure.)
Strat
Re:Retarded (Score:5, Insightful)
Well, actually- it points out the absurdity of a contract without a signature.
Oral contract (Score:4, Interesting)
Well, actually- it points out the absurdity of a contract without a signature.
Ever heard of an oral contract? [wikipedia.org]
Re:Oral contract (Score:5, Interesting)
Ok, then it points out the absurdity of a contract that has no interactivity at all. It's less than oral, written, or even twittered. There isn't even a handshake, not even a metaphorical one. Zero communication occurs. The person offering the contract can't even informally attest that they received the slightest hint about whether the other party said Yes or No.
Accept the contract. Reject the contract. How does the other party know what you did?
How would that Texaco vs. Pennzoil case have gone, if instead of a handshake deal, Getty Oil had mailed their offer to Pennzoil, never got any reply at all, and then assumed that if they hadn't heard the offer was rejected, then it must have been accepted?
A shrinkwrap EULA is even less than what we normally think of as a take-it-or-leave-it contract of adhesion. It gets even more warped in the usual case where bought the software from a third party (retail store, Amazon, etc). You've never even accepted any goods from the publisher; your deal was with a reseller. Suppose your reply (uncommunicated, of course) to the take-it-or-leave-it offer is that you leave it. What happens? You still have the objectc that you bought from Amazon, and they're sure not asking for it back.
Re: (Score:3, Insightful)
Um, did you even read the linked article, such as the bit about Texaco and Pennzoil?
Yes, and if there had been a PAPER contract, there wouldn't have needed to be a court case. The oral contract worked because there were witnesses - similar to having a recording.
Good luck taking an oral contract to court with no evidence that it took place.
Re:Retarded (Score:5, Informative)
Re:Retarded (Score:5, Insightful)
A contract doesn't need a signature, dumbass. It's just a convenient way to prove you agreed to the terms. An EULA does exactly the same thing.
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.
Re: (Score:3, Insightful)
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.
In which case the EULA was invalid regardless of whether you clicked it or you coerced the cat into clicking it.
However, assuming it was, if anyone seriously thinks that having the cat click the button would make a blind bit of difference in court, they're an idiot. The law for the most part doesn't operate remotely like a stupidly pedantic Slashdot argument (*), and this *is* the law we're discussing.
IANAL and I don't claim to know exactly why the alleged legal argument behind this device would be thro
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: (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: (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: (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 con
Re:Retarded (Score:5, Insightful)
Actually, you and your cousin Vinny are an example I was going to make here.
If I "encourage" you two to shoot someone, regardless if I'm there or not, does that free me from any criminal responsibility? Nope. I'd be willing to bet that I'd be sitting in jail waiting for my conviction (bah, who needs a trial) on 1st degree murder.
Instead of using you and Vinny, what if I rigged up a shotgun (with a hair trigger, of course), through a pulley, to the cat's collar? At the time an intended victim was in front of the shotgun, I call the cat, and it shoots. I don't think there's a jury in the world that would go for the "Oh no, the cat did it." defense.
I know there's been at least one conviction where a guy set up an "anti-intruder" system at his house. He tied a string to the doorknob, which lead to a shotgun mounted in the hallway. Someone broke in, and was shot (surprise). Through his action or inaction, he caused the final result.
A shrinkwrap/clickthrough agreement is a joke at best. I would be more concerned about being hit by you or Vinny (since I haven't pissed off that many people, I doubt I'm a target yet), than I would be about even hear a word from a lawyer about some shrinkwrap agreement. But you never know, the economy is starting to really suck. Maybe big businesses will start trying to cash in on their shrinkwrap licenses.
But what if someone else did it for you? (Score:5, Insightful)
Your point is very clear - but I could leave my laptop to a shop, a handy cousin or anyone really and they could install and agree to things without my consent.
Not so clear now, I think.
Yes, I should not lend my computer. I should, I should. But when my TV breaks I bring it somewhere to fix. Same with the computer.
Really, it's not that clear-cat.
Re:Retarded (Score:5, Interesting)
"Encouraging" someone to murder is called conspiracy to murder and it's a different crime from murder.
The other example you give is called manslaughter.
Yes, these are all crimes, but they're all different crimes and are all tried differently!
Click-throughs have little or no legal basis, let alone the ability to hold a conspirator to clicking "OK" accountable.
In the UK, you absolutely cannot enter a contract without it being a fair contract. A fair contract is where both parties have equal opportunity to amend the contract and both have to agree the final terms before jointly signing it. If it's one-sided, "take it or leave it", then it is simply not a contract and has no legal strength.
Re:Retarded (Score:5, Insightful)
If my kid installs it, the kid isn't of legal age to agree to any contract - what does $MEGACORP do in the face of that?
EULAs themselves are rather brittle and fragile anyway, even legally. I suspect that once challenged head-on in court (notice that no corporation is really willing to do that), it'll come apart like a house of tissue paper in hurricane-force winds.
Re: (Score:3, Interesting)
Re:Retarded (Score:5, Informative)
Re:Retarded (Score:5, Insightful)
Here you go:
http://lmgtfy.com/?q=EULA+upheld+in+court [lmgtfy.com]
Re: (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
Re:Retarded (Score:5, Insightful)
It's absolutely idiotic to say "if you don't like the terms, return the software" but then make the manner of knowing what the terms are preclude returning the software.
That is what shouldn't be legal. All EULAs should be provided in outside-the-shrinkwrap envelopes for immediate, pre-purchase perusal.
You Are Not A Lawyer (Score:5, Interesting)
This is just begging to be discussed by the article series featured on Slashdot last week, "You Are Not A Lawyer", which had the stated purpose to "try to disabuse computer scientists and other technically minded people of some commonly held misconceptions about the law (and the legal system).":
http://yro.slashdot.org/article.pl?sid=09/02/10/1749208&from=rss [slashdot.org]
At the time, the comments were filled with snark about how it is an unfair stereotype that geeks don't understand the law and try to "hack" the law with overly cute tricks. This article is the stereotype.
Re:Retarded (Score:5, Insightful)
I'd argue that since you were the one that "coaxed" the cat onto the device, for the sole purpose have having an "I Agree" button pressed, that your will was done through the cat. I'm not sure why this is any different than pressing the button on a mouse. You're still deciding the outcome. You decided to either coax the cat onto the device... or not. It most likely was not the cat's idea to go through this exercise.
Re: (Score:3, Insightful)
One could say that the cat doesn't understand the contract, but I haven't read a EULA that most people understand anyway.
Re:Retarded (Score:4, Insightful)
No. It doesn't fix that. You did the strategic placement of the food for the sole purpose of getting the cat to perform the action. It was still your will for the button to be pressed. Not the cats.
Re: (Score:3, Interesting)
Well, if your cat agrees to a contract, it doesn't mean you have agreed to it, hence you are not authorized to use the software. The pen on the other hand, has no free will (try disproving that in court),
The court would probably (in more legalistic language) tell you to **** off and stop wasting their time with pseudo-legalistic intellectual wankery that had nothing to do with the case anyway.
so it acts as a medium through which your will is enforced. Please go back to taking a class in critical thinking.
Good luck using that as the basis of a legal argument in court. You're seriously saying that *legally* having the cat click the button instead of the pen would made a difference because the cat had "free will" (despite the fact it doesn't- and never could- understand contracts and arguably has no free will in that resp
Re: (Score:3, Interesting)
You don't need to be 'authorized' to use software you bought anymore than you need authorization to eat a pizza you bought.
No, copyright law doesn't stop you. If you have software, you are allowed under the law to make an installed copy of it, and make incidental copies into memory and swap.
EULA originate from before the law allowed that, under the theory that they could impose rules on you in exchange for 'letting' you install and use it. Which shouldn't have been legal, they can't sell you something tha
Re:Rules lawyer (Score:5, Insightful)
The EULA itself is already a case of rules-lawyering. It's trying to avoid those irritating steps normally necessary to forming a contract, in particular both (actual) agreement and consideration, by holding the use of purchased software hostage until you indicate "agreement". Either the act of clicking "agree" means nothing, or various ways to use the software without clicking "agree" really do mean you aren't bound by the EULA.
I hold to the principle that the EULA is meaningless, and clicking on "Agree" signifies agreement to the EULA like clicking on "Yes" to the quit box in Wolfenstein 3D signifies you agree that you are a wimp. But if the courts want to pretend that clicking "Agree" actually is agreement, they can hardly complain about rules-lawyering if someone avoids clicking "Agree".
Re: (Score:3, Funny)
is your argument that we pay to possess the software, but clicking 'Agree' on the EULA is what actually authorizes us to use that software legally.
that's good to know, because I have a ton of pirated software, and since I've clicked "agree" on that EULA during installation, i now have a valid license, and I am now authorized to use it. sweet!
Root Cause. (Score:3, Insightful)
I give the lady an A for effort but it won't hold up in court. She will help to line some lawyer's wallet.
The only thing that lines lawyers wallets are bullshit laws. You know, like the ones EULAs are made of.