back to article Adobe demands 7,000 years a day from humankind

I'm not a very good liar, I haven't got the memory for it, which is why it always pricks my conscience whenever I tick the yes box to the prompt "I have read and understood…" when installing software. I am, of course, fibbing. I never read a word. In fact, even though we all tick yes to these agreements every day, unless you're …

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EULAs

I'd always thought that there was a little bit of give-and-take in all of these things. The software vendors just assume that your average Joe (and I include myself in this definition) will just tick the box, and your average Joe just assumes that he won't get taken to court should he fail to remove all copies of Flash from his mountain of backups once he's sold his old PC.

These agreements are mainly in place to stop massive abuses of software theft and copyright abuse, rather than impinge on what the other 99.9% of users are doing with their computers.

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Holmes

It all depends on what the EULA says about what the word EULA means.

> software theft and copyright abuse

Right. Because of course a freely downloadable player will invite "software theft and copyright abuse"

Just assume that it boils down to the kind of give-and-take where they TAKE all your right and GIVE you none.

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Joke

Re: EULAs

but thats what they want you to think man!

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Re: It all depends on what the EULA says about what the word EULA means.

> a freely downloadable player will invite "software theft and copyright abuse"

Probably more to do with patching the software to make it more beneficial - which might annoy the DRM content crowd.

My personal favourite is the EULA and license for a patches. Why do they need a new license to assent to? Surely it should just say - "This software is covered by the terms of your original license accept/decline?"

Even more fun is reading Apple's licenses on an ipod touch. I think the record I saw was around 75 pages.

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Windows

Re: EULAs

... your average Joe just assumes that he won't get taken to court should he fail to remove all copies of Flash from his mountain of backups once he's sold his old PC.

I don't believe 'your average Joe' has even taken a backup in his life, or knows how to.

He may have a USB drive somewhere with copies of some of his more recent correspondence and some of his holiday photographs, but he won't have a backup ... and if he did it wouldn't include his copy of Flash.

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Re: It all depends on what the EULA says about what the word EULA means.

Aples EULA actually has a bit in it about not using this software (e.g. itunes) for ... "the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons."

- check for yourself http://www.apple.com/legal/itunes/appstore/dev/stdeula/

Taken literally this means that the US and UK government can not use Apple software and products!

Also I've often wondered how legal a click in a check box, suppose you get your cat, fluffy, to check the tickbox for you, would that work.in a court of law " I'm sorry your honor but it was fluffy my cat what that done it, not me."

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Not enforcable anyway?

At lest that's my understanding but also that this has never been tested in court.

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Re: Not enforcable anyway?

By definition, to have seen the Adobe EULA you are already running Adobe software and thus would (presumably) be bound by a EULA you haven't yet read. Don't forget that from the first assembler instruction you are bound by the licensing on that program. Similarly, ToU agreements on websites suffer from the same cyclical dependency - to agree to how to get here, you have to be here.

Similarly, if you are supplied with boxed software, you are sometimes agreeing to the license contained within (that you can't see) just by opening the box.

Thus, in law (and there has been a case with boxed Microsoft software, I believe), it's all a load of baloney. There might be an *implied* contract but asserting that the "I agree" box is legally binding is far from the truth. For a start, prove that I clicked Yes and it didn't just not show me that dialog at all... you can't. It's almost impossible to prove that I actually agreed and not, say, my cat, or my broken keyboard did it for me without me realising.

And that also means that if I can find a way to install the program WITHOUT seeing the EULA and agreeing to it, then I'm not bound by the EULA? I don't think that would wash in court either - and I have seen setup programs that I disagreed with the EULA, clicked the windows-close button and it carried on assuming I had agreed (and I've even seen one that had only an "I agree" box and nothing else).

And even if you think I accepted the EULA, most of it is nothing but legal boilerplate and quite a lot of it is, again, unenforceable in some jurisdictions anyway. They even acknowledge this in most EULA's. This is part of the fuss over "class action" clauses - you know, if there's ever a good reason to have a class action, then that part of the implied "contract" will just be deemed unfair and void anyway.

Making EULA's a binding agreement would be a possibility - but it would also mean that manufacturers would need to FORCE you to read them before having the product in your hands, they would need to be fair, they would need to be local to each jurisdiction, they would need to be provably signed and verified, and only THEN would you be able to provide the software based on the agreement - like good, old-fashioned contracts have always worked.

Nobody's yet contested it properly, because it will create an absolute MESS in the jurisdiction that successfully contests their legality and such things are expensive for everyone. But they are less enforceable than almost anything else you can imagine at the moment because of the grey areas. Most convictions for, e.g. copyright infringement, etc. do not rely on the provisions of the EULA at all because it's just a roundabout way of costing the whole industry a lot of money and pushing impossible restrictions onto the sale of digital good.

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Re: Not enforcable anyway?

Seeing as most EULA's I've bothered to look at also had a clause stating "if any of this contract is bollox, then the contract is basically everything excluding the bollox" - so they can demand the world, your firstborn and whatnot and it's up to you to prove they don't have that legal right rather than pushing the obligation onto them to offer a fully legal contract.

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Boffin

Re: Not enforcable anyway?

My understanding is that a contract is a meeting of the minds. Any so-called agreement that you cannot negotiate but must accept as-is is an adhesion contract and is thus unenforceable. That said, IANAL.

Further, it seems to me that these EULAs can be summarized as 'we have all the rights, you have all the liabilities' (and any draws go to the dealer...)

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Re: Not enforcable anyway?

wasn't there an issue on some early versions of Windows where the code that dimmed the "Next" button on installers until you checked the "I agree to your ludicrous terms" box was by-passable and you could run a small program to un-dim the next button without agreeing to the license?

I would suspect that there was some effort to address that, but I suspect its still possible to get past that check box if you're determined enough. And you're right - they have no way of proving if you did read and agree or not.

When I rented my last accommodation I pointed out several spelling and/or grammar errors in their contract. I strongly suspect I was the first person ever to read it and not just blindly sign it.

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Re: Not enforcable anyway?

I politely disagree on a number of points:

* The case Oracle vs. Usedsoft (decision of the European Court of Justive available here: http://curia.europa.eu/juris/liste.jsf?language=en&jur=C,T,F&num=C-128/11&td=ALL) seemed to at least partly refer to a clause in the EULA. The EULA was not thrown out outright, so calling a EULA invalid from the onset may go to far.

* Your approach to assume circular reasoning is interesting, but I wonder whether it fails to take into account that you may modify an agreement by mutual agreement. Thus, you run (and therefore exercise the right to make a copy of) the installer software/the software under an implied contract with a restricted license which then is modified by the EULA.

* Regarding the fairness test of the general terms and conditions, I assume you are right. However, you agreed to those clauses in the first instance so you may be on the heels with this defense.

* Signature is usually not required for concluding an agreement in most of the EC.

* I agree regarding your view on infringements: Most of the time, the infringement does not necessarily depend on the EULA. Oracle vs. Usedsoft may have been the important exception though.

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Anonymous Coward

Re: Not enforcable anyway?

I'm sure a while ago there was a lot of fuss about employment contracts containing illegal clauses (specifically the one about not leaving to work for a competitor). The point was that any such clause rendered the entire contract null and void. The point was made, I recall, that adding a "bad clauses remove only themselves" was itself null and void, you can't just chuck things willy-nilly and hope that the law will remove the bad ones.

I have no idea, I'm not a lawyer (thank goodness) but I suspect if a EULA was tested in court then it could be overturned as a confusing mass of contradictory, unenforceable and unintelligible statements.

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@Radbruch1929 Re: Not enforcable anyway?

Signature may usually not be required for concluding an agreement, but surely identification must be. Unless it can be proven that it was actually my finger that clicked the mouse button, there can be no case for me to answer.

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Every single update...

What I don't get is why Adobe feel the need to force me to agree again for every single update. I've already claimed to have read the license agreement when I first installed the software, this is just an update so it doesn't revoke what I have previously agreed to.

In fact even if Adobe had changed the clauses of the EULA, the fact they don't inform you of this means that they aren't enforceable anyway - as a reasonable person could assume the EULA is the same as the version they agreed to 5 years ago!

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Boffin

Re: Every single update...

Except that most EULAs contain statements like: we reserve the right to update this agreement at any time and you're responsible for continuing to accept any new changes we post to [hieroglyphically long url that is long enough to word-wrap but this isn't handled by our page formatting] or you'll uninstall the software.

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reasonable person...

think about it

it was written by a lawyer, so why are you talking about reasonable people?

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Re: Every single update...

Not just Adobe: it's all of them.

I think they have been court tested in NY and it was essentially "companies are expected to read them - individuals are not". That might have been wishful thinking though!

The article makes a bizare claim for Apple ("I have to say I find Apple’s take on things rather interesting."), but as anyone who has updated any app on an iPhone/iPod etc knows, the T&Cs change with great regularity and even greater verbosity: 35 pages or more to get an update from another company, not even apple!

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I once read the EULAs

That habit lasted for about 45 minutes, at which point my co-worker ( I was a new hire) told me to stop being ridiculous and just check the box and install the damn software. Later, after everything was installed and running, I calculated that if I had read each license agreement, I would still have been installing software the next afternoon.

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Re: I once read the EULAs

Were you a director of the company?

If not you had no right to enter into a legal agreement with Adobe - you should have stopped and got a member of the board, and probably your company's legal council, to read and agree to the EULA before installing each update.

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Holmes

Re: I once read the EULAs

Authority to sign contracts is commonly delegated - and for low value items usually down to quite a low clerical level.

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Re: I once read the EULAs

But this isn't low value - the Eula contain permission for just about everything and they include the right to change the rules. You might have just agreed to them using all your customer data for marketing purposes for example.

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Go

What I understand… about licence agreements

"I understand" that this corporate software will open backdoors on my computer and track me till the day I die, and the only thing likely to interfere with Microsoft's, Google's and Adobe's data collection is their falling over each other while trying to simultaneously rake my hard drive. Go for your life.

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Maybe I missed the reason for a nice advert for Kindle in the 3rd page?! Was there discussion of Amazon T&Cs?

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Headmaster

The value of Free Software

Once again, Richard Stallman is right. Proprietary software is wrong, and it requires insane rituals to preserve the illusion of civility.

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Re: The value of Free Software

Richard Stallman is just as bad here as the "proprietary" folks. Have you actually read any version of the GPL? (OK, I haven't read v3, but I did read through v2 many years ago, in a moment when I was feeling bored and wanted something to help me sleep. It worked well.)

The only software license that isn't like this is the "public domain" one -> "This software is in the public domain. Do what you want with it, but don't expect any help either."

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Stop

public domain

Public Domain isn't a licence. When you place something in the public domain you are taking a very specific legal step, you are gifting that something to the whole world. From that moment you have surrendered all rights to it because you no longer own any part of or interest in it, so you can't license anything related to it.

It's a very nice thing to do, but very few people actually do it.

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Anonymous Coward

Re: public domain

Did you know that you can't do that in all countries? Copyright legislations vary. For example here in Finland our copyright law doesn't recognize Public Domain. There's no mention of it. In Finland the author always retains copyright for their original work, no matter what. The author cannot get completely rid of his/her copyright. Of course the author may state that copying, distributing, modifying and whatnot is perfectly fine and that in the future he/she will never demand any of the rights that the law grants. That may be close to being Public Domain, but not completely, because legally the copyright remains with the author.

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Linux

Re: The value of Free Software

Despite it being as long as most proprietary EULAs, the GPL is far superior on this issue because:

* It is written to be a general license, so the exact same text is reused for innumerable projects. Read a version of the GPL once, and you can honestly say that you have read (if not understood) the license for any project which uses it.

* It is static. There are new versions occasionally, but you don't have to re-read "GPL v2" every six months, on the offchance that it's been modified in some way.

(Similar things can be said of any FLOSS license, of course, I just use the GPL as the prime example because of its combination of verbosity and popularity.)

The open-source world had something similar to this for a while, we called it "license proliferation". The community as a whole saw this for the problem it was, and (mostly successfully) urged projects to use one of a smaller set of licenses, rather than everyone coming up with their own.

Proprietary software vendors need to recognise this as a problem, and engage in something like the Creative Commons licensing project; to create a set of simple, discrete, modular, reusable, terms, which any site can adopt. But so long as the lawyers are making bank, I don't see this happening.

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Boffin

Re: The value of Free Software

The basic rules are simple and apply to all GPL and LGPL licenses and many other copyleft ones.

You can use the software however you want but liability is disclaimed. Use it, copy it modify it for your own use and you don't need to worry about the rest of the license.

If you want to distribute it (something that none of the proprietary consumer licenses permit at all) you must distribute the source (possibly to the whole programme).

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Re: The value of Free Software

The value of the GPL is that it is a single licence and other people who DO understand this stuff have read and checked that there isn't a "we now own your children clause" and most FOSS users have a decent understanding of it.

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Re: public domain

No public domain in Finland? How does that work?

Who owns works whose authorship can't be traced (orphan works)?

Where a work is ancient or every old, created before copyright existed, who owns the rights?

Is Finland signed up to the Berne convention? What does it do regarding public domain works in the rest of then world where they're published in Finland? Assign local ownership based on publication? Even without creative input?

In addition, having No public domain seems evil to me - yeah evil! Everything must be someone's property; no commons. No public culture open to all. The apex of the capitalist wet dream.

Are you SURE Finland has no public domain?

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Re: The value of Free Software

How many people download a package with a GPL license and check it wasn't altered? Not many.

If you don't compare to a reference copy, how do you know that it is the proper GPL license and not one that has a "now we own your first born" clause?

Answer: you don't. You just fell into the same trap as people clicking through on commercial licenses.

The only benefit to the GPL or BSD or Apache licenses is that they are (mostly) standard. I'd honestly say the BSD license is better than the GPL in this regard as it is relatively short - the 2 clause version is 29 lines of 80 column text long, with the differences being in whom claims the copyright. GPL v2 is 339 lines according to one local copy. GPL v3 is 674 lines long, again in some local copy from some package or other. To me thats just as bad as an Apple license.

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Re: public domain

> No public domain in Finland? How does that work?

Indeed. Finland would have to have unlimited copyright otherwise what happens to works that have existed for longer than the copyright period?

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Re: The value of Free Software

"If you don't compare to a reference copy, how do you know that it is the proper GPL license and not one that has a "now we own your first born" clause?"

Because the package is distributed with the terms "this package is licensed under GPL2" or whatever. In other words it does not bundle it's own license copy, rather instead references a single common immutable document.

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Boffin

Re: public domain

I think the poster who started talking about Finland was confused. There's a difference, in European and international (but not American) copyright law, between "moral rights" and "commercial rights".

Moral rights mean, basically, the right to be identified (or not) as the author of a work, and the right to object if someone distorts it and falsely attributes it to you. Commercial rights cover the copying/distribution/etc. issues that attract all the attention.

In Finland, as in every EU country, "moral rights" can't be sold, but "commercial rights" can.

Hope this helps.

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Re: public domain

Many countries have no pubic domain - it's intended to protect authors.

With public domain you can always just take some work and say: "I thought it was public domain", where there is none you have to at least show some understanding that it did have an author - even if their rights have lapsed.

It's equivalent to compulsory voting - it seems pointless but makes it harder to prevent people exercising their rights.

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Re: The value of Free Software

"If you don't compare to a reference copy, how do you know that it is the proper GPL license and not one that has a "now we own your first born" clause?"

No because then the contract would be a lie, if it says GL2 then the real GPL2 is what you are agreeing to.

Otherwise it would be like faking a banknote and saying that the other person accepted it so its OK

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Good article

Good angle on an age old woe, the person years bit.

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Paris Hilton

Re: Good article

I wonder how many man years have been lost reading this article...

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Angel

Re: Good article

Lost? Pfff. Those are years of enlightenment.

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Re: Good article

Not as many if you skip reading the EULA quotes like I did.

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Once upon a time

I think it was Norton who had the only sensible T&Cs I recall....please treat this software like a book, you can install it anywhere but you should only use one copy at a time.

As the article implies, the more you tie these things up in legalese then the less likely people are to even bother reading it to say nothing of complying with any conditions. All these complex regulations/agreements achieve is to create loopholes for people who like loopholes to slide through and 'normal' people to get snagged in.

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Re: Once upon a time

Borland used to have those licence conditions for Turbo C (and their other products such as Turbo Pascal) - that is going back to 1988 or earlier!

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Does anyone obey the EULA?

I consider EULA's as more of a bunch of suggested guidelines, not as a legally binding contract.

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Re: Does anyone obey the EULA?

I agree - the fact that the EULA is non-negotiable means that the end user has no say in the terms and conditions. As a result it cannot be a contract.

The fact that it is written in 'legalese' which no normal person should be expected to understand (if you are a Lawyer then you could be expected to understand the terms and conditions, but most people aren't) just goes to re-enforce that.

It's a waste of a lot of peoples time.

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Re: Does anyone obey the EULA?

quote: "I agree - the fact that the EULA is non-negotiable means that the end user has no say in the terms and conditions. As a result it cannot be a contract."

A quick wiki for contract reports that "undue influence" is an affirmative defense, and the first lines for Undue Influence being "In jurisprudence, undue influence is an equitable doctrine that involves one person taking advantage of a position of power over another person. It is where free will to bargain is not possible."

I'm pretty sure most people would agree that "tick agree or GTFO" is a position where free will to bargain is not possible. This leads to the interesting assumption that all these highly paid lawyers writing all this EULA boilerplate are actually aware that any EULA presented under "tick agree or GTFO" conditions are by definition unenforceable, if the second party then claims undue influence with intent to void the contract.

I think I might use that one myself, if ever in the position of having to defend a breach of EULA in court :)

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tl;dr

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TL:DR

http://www.youtube.com/watch?v=F1C4gWyW1Ng

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