[Commons-Law] Interesting US ruling on EULAs

[Aniruddha Shankar]

The UNITED STATES DISTRICT COURT of the EASTERN DISTRICT OF MISSOURI has 
ruled [1] that an EULA (End User License Agreement) of a commercial 
product can legally prohibit the licensees from interoperating with 
other software.

Blizzard Entertainment, makers of the wildly popular game series 
starcraft, warcraft and diablo and owners of the battle.net online 
service for multiplayer gaming between blizzard games sued the bnetd 
project in early 2002. The bnetd project, an open source effort, allows 
people to run multiplayer game servers that emulate the battle.net 
servers, allowing people who have purchased / licensed the game to 
connect to a bnetd server instead of the official battle.net server.

Blizzard argued that the programmers who wrote BnetD violated the DMCA's 
anti-circumvention provisions and that the programmers also violated 
several parts of Blizzard's EULA, including a section on reverse engineering

The Electronic Frontier Foundation (EFF), co-counsel for the defendants, 
argued that programming and distributing BnetD was fair use. The 
programmers reverse-engineered Battle.net purely to make their free 
product work with it, not to violate copyright.

According to discussants on Slashdot[2], the highlights of the ruling 
include:

1. A clickthrough EULA isn't unconscionable (and thus enforceable)
2. Fair Use rights can be waived in a EULA
3. First Sale rights (!) can be waived in a EULA
4. The DMCA's interoperability provisions are not a defense

There's an interesting comment[3] and a counter [4] to which 
commons-lawyers might want to respond.

3: "*Huh?* If you are that concerned about EULA's (and I'm not saying 
that you are wrong to be) simply email the company asking to see their 
Eula before purchasing. Adobe (for example) lists their EULA on their 
webpage, and refers you there from the outside of the box [I think this 
is the way to go].

It used to be standard practice to print the EULA on the outside of the 
shrinkwrapped plastic disk package.

If you're concerned with the usage-restrictions in a EULA, take the time 
to find out. And if you don't agree with the terms (quite reasonable in 
the case of spyware etc.) don't accept the EULA and send back the 
software for a refund; that is: don't use the software .

It is the software maker's perogative to offer their software on 
whatever conditions they want, and it is your perogative to NOT USE 
THEIR SOFTWARE (and instead consider giving your money to a competing 
product)."

4"     If you're concerned with the usage-restrictions in a EULA, take 
the time to find out.

That's bullshit. When I head over to my local bookstore, I don't first 
log into the publishers web site to see if I'll be able to sell the book 
to a used book shop. When I go buy a CD, I don't check to see if I can 
make a tape copy, or if I can sell it to a used cd shop.

The software industry has managed to convince the world that they get to 
have magical new rules unlike those anywhere else in the world. This 
little trick is based on some downright flaky court rulings and an 
ignorant public. It does not need to be this way, and it should not need 
to be this way.

I'm perfectly happy to make contracts. I sign employment agreements, 
cell phone contracts, auto-loan contracts, service contracts, and more. 
In those situations it's done honestly; we agree roughly on the terms, 
I'm presented with and sign the contract, we then exchange goods, 
services, and/or money.

     And if you don't agree with the terms (quite reasonable in the case 
of spyware etc.) don't accept the EULA and send back the software for a 
refund; that is: don't use the software

Hahahahahahaha. Sure. Take it back; I'm sure they'll happily give you a 
refund. Right. And since we're in fantasy-land anyway they'll reimburse 
you for the time you wasted buying a product you only learned you 
couldn't use when you got home.

     It is the software maker's perogative to offer their software on 
whatever conditions they want, and it is your perogative to NOT USE 
THEIR SOFTWARE (and instead consider giving your money to a competing 
product).

Sure. I was at Best Buy recently. There were music CDs, the offer 
appeared to be about $18 for a music CD, o strings attached. There were 
some magazines, the offer was often something like $3.95 for a magazine, 
no strings attached. I actually bought a new clock-radio; the posted 
offer was $29.95, no strings attached. I headed over to check out 
pricing for Doom III. The posted offer was $54.99. There was no sign 
warning me of additional limitations. There certainly wasn't any 
contract present that I could review. Yet, for some magical reason, I'm 
supposed to treat Doom III different. It'll complete bullshit. If 
software publishers want contracts with customers, they can afford to be 
up-front and honest about it."



[1] http://www.freedom-to-tinker.com/doc/2004/bnetd_30sep.pdf
[2] http://yro.slashdot.org/article.pl?sid=04/10/02/1648254
[3] http://yro.slashdot.org/comments.pl?sid=124141&cid=10414495
[4] http://yro.slashdot.org/comments.pl?sid=124141&cid=10417723