You all know the feeling. You’ve just downloaded a piece of software for your computer, and you’re presented with the option of actually reading the incredibly boring terms of the user license or simply assuming that the contract contains no unpleasant hidden terms and agreeing with whatever may happen to be included.
And I’m quite sure I’m not alone in that I rarely do more than scan through the terms with a cursory eye before clicking on the almighty “I agree” button. I mean, c’mon. I’ve slogged through Aristotle and Aquinas, found The Federalist Papers endlessly fascinating, and loved every page of Ivanhoe. But two sentences into the typical end user license agreement, my eyes begin to cross and my mind searches for something more interesting to ponder, such as, well, anything.
My question, therefore, is this. Since businesses must surely be aware of the average user’s disinclination to read the fine print before agreeing to all terms, have there been any notable cases of software companies slipping sneakly little clauses into their license agreements? You know, the sort of thing that would make a person of normal intelligence think twice about agreeing to were they made aware of it? Is it possible that I have inadvertantly signed over my first born to Bill Gates?
One time the IT security department at the firm I work for sent us all a software upgrade for a proprietary system we use. At the beginning of the installation there was a User Agreement and I just clicked ‘Yes’ and continued without really looking at it.
The next screen bascially said, “Really? You’re okay with us reducing your salary by 50% and using it to fund the IT team picnic? Because that’s what you just signed! Maybe you want to read those user agreements a little more carefully.” Then we had the option to change our answer
I don’t think any of the sneaky stuff would stand up in court, though. If it ever got that far. Usually, as Chuck noted, you just allow them to mess with your computer. I don’t think anybody has ever tried to sue Kazaa over it.
File swapping software is pretty dodgy stuff, due to the largely illegal nature of file swapping itself. Kazaa is counting on people being reluctant to admit to using it. More reputable software makers want to maintain their reputations, and avoid gotchas for that reason. Plus, disclamers of any sort are usually pretty much worthless if a lawsuit does get filed.
End-user license agreements have been routinely upheld in U.S. courts for several decades now. They were originally known as “shrink-wrap” agreements (as in “breaking this seal indicates assent to the enclosed terms”) and today they’re often called “click-wrap” agreements. They’re considered contracts like any other boilerplate agreement that you get on the back of your sports event/parking/ocean liner ticket or cable television/power bill. Standard contract law applies, so you can argue that certain terms are unconscionable or non-negotiated, but that’s an uphill climb.
Of course I know what you’re getting at, but I think it’s worth saying – there’s nothing inherently illegal about file swapping. Of course you meant to specify “copyrighted material”, but you didn’t. Unfortunately, it’s claims like this that give things like BitTorrent an unfair reputation.
The EFF has an excellent guide to EULA’s here. They do note that EULA’s have stood up in court as being valid contracts.
However, it’s my understanding that pretty much any “gotcha” terms included in them (like, “you owe us half your salary”) are almost certainly unenforceable. Take for example Network Associates inclusion in its EULA of: “The customer shall not disclose the results of any benchmark test to any third party without Network Associates’ prior written approval.” In People of the State of New York v. Network Associates, the court found that this clause is unenforceable, and banned Network Associates from including it in NY. Same thing with “Do not reverse engineer this product” and “We are not responsible if this product messes up your computer”; these clauses have been struck down in court and you can safely ignore them if you see them in a EULA.
I think that as more of these types of clauses are tested, more and more will be found unenforceable.
IIRC in the UK it’s impossible to sign away your statutory rights, so any clause which states that by agreeing you have no claim for damages etc is invalid. Similarly AFAIK there’s no such thing as a liability waiver in the UK.
It seems to be the opposite, at least to some extent, in the United States. According to the ProCD case, a legal contract can override “fair use rights” as provided under the Copyright Act.
I’m always perplexed by the notices in car parks about the owners not being liable for any damages or loss whilst you’re parked there, are those actually binding or not?
