@A J Stiles & Aaron Browne

Perfect!

Microsoft users whine and weep and rage... and then continue to buy M'soft and related software products! I've reached the point where I've started thinking they deserve exactly what they get.

Why should any of those companies change their EULAs when they know that 99% of their users are too stupid and lazy to go somewhere else?

This does not affect your statutory rights.

Interestingly (and if IIRC from my law classes at school many moons ago) it is not possible for any contract to remove or modify a consumer's statutory rights as laid sown in the Sale Of Goods Act (SOGA) and the Sale Of Goods and Services Act (SOGASA) and possibly other legislation that I can't remember just at the moment.

These include things like the ability to return goods and get a refund if they are defective or if they are "unfit for purpose" (e.g. you buy product X to fulfil function Y and it turns out not to be able to do so to your satisfaction). From the general tone of the comments on El Reg whenever the Beast Of Redmond is mentioned, I guess many folks feel that both of these conditions apply).

Retailers in general try quite hard to avoid allowing consumers their rights (seemingly restrictive return policies, etc), and they mostly get away with it because consumers are generally ignorant of the relevant statute law, which is why we have Trading Standards and the OFT.

There are also, as someone mentioned, rules governing how contracts can be structured, I can't remember what they are in any great detail, a google of "construction of contracts" with a UK filter should help the curious, but IIRC their must be something called "valid consideration". This is quite complicated, but basically means that contracts must provide something of worth to both parties in order to be valid, I think.

I've no idea how this would apply to a EULA, but I can imagine it would do for at least a few clauses.

"There was only one very specific exclusion which was for bus & train tickets that have details on the back."

Well remembered that man. In fact, ISTR that the actual judgement goes further than that and allows, under certain circumstances, for Ts&Cs to be merely 'available', e.g as long you can (at least in theory) get hold of a copy to read before you purchase, then they are valid. I haven't got a rail ticket handy, but I believe they have something like "issued under the terms of the conditions of carriage" written on them. The conditions of carriage are (in theory) available from the operator.

I really can't remember the circumstances of the case, so I don't know if this could be applied to shrinkwrap licences on software.

Either way, I'm pretty sure that an impartial UK legal beagle could render most of the MS EULA invalid with a bit of effort.

But imagine the consequences if MS (et al) are made liable for defects, you think Office is expensive now ? Wait until you have to purchase it with the price of a perpetual liability insurance policy added.

As an aside, I wonder how copyright law applies to the EULA itself ? I've worked for a number of ISVs who just cut 'n' pasted EULA.txt

Law of contracts

English law on contracts says some interesting things in relation to the process by which a consumer contract comes into being. This is especially awkward for the supplier for consumers rather than commercial purchasers.

In particular,

The contract terms are those which the parties reasonably believed were the terms when the contract was formed.

The offer of variations on the contract after it has been formed may be rejected by the customer. The EULA is clearly such an offer and may be rejected. The contract with the supplier remains in force leaving an interesting situation. If you entered into a contract to by "Microsoft Office" then you have little come back except to reject the terms and ask for the contract to be cancelled (ie get your money back). If you went into a shop (PC World say) and asked to buy something for a specific purpose and the EULA is not suitable then the contract remains in force and they are required to provide something does meet your purpose. This is a whole new can of worms but the upshot is that the shop you buy from should be grateful if they get away with simply giving you your money back.

On the issue of software not working. It is required to be of merchantable quality and no amount of statements in the EULA saying they do not warrant it is suitable for a particular purpose will get them out of this. Basically it must be of "merchantable quality" for carrying out the tasks they advertise it for. If their advertisements talk it up then they are making some quality statements about their software. The EULA cannot negate this.

Unfortunately many of the nuances of the law in this area have simply never been tested in court mostly since if you apply legal pressure you will get your money back and that is the end of it. No industry wants their limited warranties tested in court since this might make consumers realise how invalid they are.

I have numerous warranty cards for bits of equipment that provide a "free one year warranty repair" for manufacturing defects. The law gives me a lifetime warranty against manufacturing defects.

From my point of view the key EULA restrictions that will stand up in court (probably) are the consequntial damages and licence transferability clauses.

I keep hearing about how MS EULAs

aren't enforceable, legal, et al.

However, I've never heard of one single case where a court of law has overturned any software eula.

It's also true, that I haven't heard alot about MS pushing for enforcement very hard either, but folks can keep saying this stuff, but until someone actually hands MS their hat, and sends them home on this, it's all just noise.

Grey area.

The simple fact is, UK software licensing is a very grey area. Most aspects have never been tested in Court, and hence there are no precedents to set the pattern.

Though, EULA's which make conditions that clearly exceed those of copyright -for example the OEM condition that should the computer fail the software may not be transfered to an identical replacement machine- are extremely questionable, and may even represent an offence under Trading Standards laws.

The other side of the piracy issue is that most packages come with no identifiable licence-form, and as such it's very hard to pin-down the vendors as to what constitutes a 'licence' to use the software. Microsoft for example say that owning a serial-number or COA sticker does not in itself constitute a licence. I suppose some might argue that if you don't get a proper licence-form in the package then there is no point in paying anyway, since in that case you could still -in theory- be prosecuted regardless of having paid for the software. Or, woudl a till-receipt be sufficient evidence of payment? Unsure. Not a good situation.

End Loser License Agreement

Is really what these should be called - you lose no matter what. Little has changed since the days of Windows 3.1

By installing or using this software you agree to the following:

1) You do not own this copy of the software - instead, you are paying us for the right to use it as we dictate. This 'right' may be terminated by us on a whim with no recourse available to you.

2) You also agree that by using this software you indemnify us from any damages caused by our product. You agree not to sue if this trashes your data/hard drive/marriage.

3) Warranty? Ok, if the disc is bad we'll replace it within a specified time. The software itself? pfffttt! As they say in China "Rotsa Ruck!"

4) If you do not agree to these terms you may return the software for a full refund. Oh wait - if you got this far that means you opened it, no refund! Gotcha!!

I believe software companies have been getting away with this because few people take the time to disseminate these ELLA's and just click "I AGREE".

@Mark

The point I was trying to make was that you only need abide by the licence for as long as you are doing something that would otherwise be prohibited by law: for example installing, copying, or using a work that is under copyright.

After uninstalling said work, you are no longer performing actions that require a licence. Therefore, you can consider the licence terminated.

Until you reinstall, and need to agree to it again.

@ Mark

According to the terms of the EULA, the permission granted under the licence for your first friend to use the software probably was withdrawn when they voluntarily parted with the original installation media.

What's more interesting is that you don't need to agree to the EULA if you acquired the software subject to the Sale of Goods Act 1979 As Amended. Because according to SGA79, goods must be fit for purpose -- and if using the software for its rightful purpose entails making a copy, then that copy must by definition be non-infringing. Otherwise the goods would not be fit for purpose. Refusing permission to use legitimately-purchased software would void the sale.