Remove the EULA before installing your software

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A Malfunction

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Apr 30, 2002, 5:32:26 PM4/30/02
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This is a Windows VBScript I created to remove the click-through
End-User License Agreements from retail software I install. EULAs are
getting unacceptably intrusive and restrictive, and I for one have had
enough. In my opinion, manufacturers have no business putting extra
restrictions on how I use something after I have already paid for it.
While this script is no great programming achievement, its purpose is
twofold: (1) to make a point about the absurdity of hidden "agreements"
that buyers cannot know about until after sale, and (2) to be able to
honestly say that I never accepted any EULA, and thus my use of the
software is limited only by copyright law, just like a book or a CD.

Copy the following into a file called NoMoreEULA.vbs, further
instructions are in the comments at the top:


' NoMoreEULA.vbs - Automatic EULA remover for Windows
' $Revision: 1.11 $
' $Date: 2002/04/29 16:32:17 $

' *****************************************************************************
' Windows VBScript for automatically removing the click-through End-User
' License Agreements found in most installers. Use this to install your
' paid-for software without accepting outrageous post-sale terms of use from
' the manufacturer. For extra amusement, you may add your own "Software Vendor
' License Agreement" to replace the EULA by providing a file SVLA.txt in the
' same directory as this script. Take a look at <http://www.cexx.org/svla.htm>
' for inspiration.

' I AM NOT A LAWYER AND THE FOLLOWING IS MERELY OPINION, NOT LEGAL ADVICE:

' To use this, start your software's installer as you normally would, but
' before it displays the EULA, run this script (double-click the file or run
' "wscript.exe NoMoreEULA.vbs"). It will search the Windows Temp directory for
' text files that could be EULAs and give you a chance to replace them. In my
' brief testing, this works with most installers. If all goes well, the
' installer will display an empty agreement (or your SVLA.txt) instead of the
' manufacturer's. You may want to take a screen shot of that window (Alt-Print
' Screen, then Paste into MSPaint or something similar) to show that you never
' agreed to the original EULA. Naturally, you must still obey copyright laws
' (i.e. no unauthorized distribution) while using the software.

' I created this script in an effort to show just how absurd it is to have to
' accept arbitrary terms of use from the manufacturer _after_ you have paid for
' something. My opinion is that EULAs on store-bought software are completely
' unenforceable. Software manufacturers give the appearance of a sale (you buy
' it in a standard retail store, you pay sales tax, etc.), but after they
' have your money they spring this "agreement" on you and suddenly it's a
' lease. Ladies and gentlemen, this is known as _fraud_. If a transaction
' looks like a sale, then it _is_ a sale, and it's up to the party who doesn't
' want it to be a sale to make that known in advance. The burden is on the
' manufacturer not on me. It is not my responsibility to seek out these extra
' terms of use, nor is "return this software for a full refund" an acceptable
' remedy for this contractual Trojan Horse.

' For no other type of product would we consumers tolerate this nonsense--not
' even other copyrighted works like books or CDs. When you buy something it's
' yours and only the _law_ can restrict how you use it, not the manufacturer.
' Copyright gives authors the power to prevent others from publishing their
' work, but it is not a blanket license for them to dictate how people use it.
' However, courts have been slow to apply the First Sale doctrine to software,
' and I am impatient. By running this script you sidestep the issue entirely.
' You can honestly claim that you never agreed to any EULA, and thus are bound
' only by the terms of copyright law. Copying the software to your hard disk,
' memory, and CPU in order to run it is already permitted under Fair Use,
' specifically by 17 USC 117(a); so using the software on your own computer
' after you've legitimately paid for it does not require anyone's permission.
' Absent interference from the EULA, you remain free to reverse engineer,
' disassemble, and back up your private property as the law allows and only
' distribution of the copyrighted software is illegal. Again though, I am not
' a lawyer, and this is not legal advice.

' There is some chance that this code is in violation of 17 USC 1201(a)(2) (the
' "Digital Millennium Copyright Act"), but oh well... One more reason to write
' to your Congressmen and get that stupid law repealed. A web search on DMCA,
' CBDTPA, or UCITA will get you started if you are unfamiliar with the legal
' and Constitutional issues here.

' PLEASE NOTE THAT THIS IS IN NO WAY A LICENSE TO COPY AND DISTRIBUTE (i.e.
' "PIRATE") SOFTWARE ILLEGALLY. THIS SCRIPT IS INTENDED ONLY TO FREE YOU FROM
' RESTRICTIONS ABOVE AND BEYOND WHAT THE LAW ALREADY PROHIBITS; IT DOES NOT
' (AND CANNOT) GIVE YOU PERMISSION TO VIOLATE COPYRIGHT LAW. I DO NOT CONDONE
' COPYING COMMERCIAL SOFTWARE WITHOUT PAYING FOR IT, IF FOR NO OTHER REASON
' THAN SUCH BEHAVIOR IS PRECISELY WHAT GIVES US CRAZY, UNCONSTITUTIONAL LAWS
' LIKE THE DMCA IN THE FIRST PLACE.

' Feel free to distribute this code as widely as possible, but please preserve
' this comment section at the top. Also feel free to make and distribute
' improvements as this is my first attempt at using VBScript. I have tested
' this on Windows 98, but it should work on any version of Windows with
' Scripting Host installed. Visit <http://www.microsoft.com/> if you need WSH.
' What would better is a script to remove the read-only property of a Windows
' text field (or modify its contents) at run-time, but I don't know if VBScript
' allows one app to modify another like that.
' *****************************************************************************

' Require all variables to be declared before use.
Option Explicit

' Win32 Constants
Const ForReading = 1
Const ForWriting = 2
Const TemporaryFolder = 2

' Script Constants
Const EULASize = 65536 ' Max size of an EULA candidate
Const SVLAFile = "SVLA.txt" ' Optional file containing replacement EULA text

' Objects
Dim fso
Dim fd
Dim tmp

' Strings
Dim svla

' Integers
Dim numeula

' Regexes
Dim highchar
Dim nonchar
Dim term1
Dim term2

' Return True if the given string looks like an EULA.
Function iseula(s)
' Is it mostly (> 98%) ASCII text? We don't want to overwrite a binary file.
If highchar.Execute(s).Count > 0.02 * Len(s) Then
iseula = False
Exit Function
End If

' Does it contain telltale terms like "license agreement"?
If term1.Execute(s).Count = 0 Then
iseula = False
Exit Function
End If

' How about "reverse engineer", etc.?
If term2.Execute(s).Count = 0 Then
iseula = False
Exit Function
End If

' Is the number of printable, non-newline characters at least 90% of the
' total? This helps distinguish EULAs, which tend to be wordy, from other
' text like config files that might also happen to contain EULA words.
If nonchar.Execute(s).Count > 0.1 * Len(s) Then
iseula = False
Exit Function
End If

' Ok, it's an EULA.
iseula = True
End Function

' Walk through subdirectories checking each file to see if it's an EULA.
Sub recurse(folder)
Dim subfolder
Dim file
Dim fd
Dim l

' Traverse subdirectories.
For Each subfolder In folder.SubFolders
recurse(subfolder)
Next

For Each file In folder.Files
If file.Size < EULASize Then
' Try to open each file. Some will fail if they are in use, but that's
' ok, just skip them.
On Error Resume Next
Set fd = fso.OpenTextFile(file, ForReading)
If Err.Number = 0 Then
l = fd.ReadAll
fd.Close
Set fd = Nothing
If iseula(l) Then
' We found a match. Show the first part of the file contents and the
' filename and ask the user for confirmation.
If MsgBox("Defuse " & file & "?" & vbCrLf & vbCrLf & vbCrLf & _
Left(l, 1024), vbYesNo, "Possible EULA found") = vbYes Then
' Overwrite the entire file with our own.
Set fd = fso.CreateTextFile(file, True)
fd.Write svla
fd.Close
Set fd = Nothing
numeula = numeula + 1
End If
End If
End If
End If
Next
End Sub

' *****************************************************************************
' Main ************************************************************************
' *****************************************************************************
Set fso = WScript.CreateObject("Scripting.FileSystemObject")
Set tmp = fso.GetSpecialFolder(TemporaryFolder)

' If SVLA.txt exists in the same directory as the script, use that. Otherwise
' use a default blank agreement.
If fso.FileExists(SVLAFile) Then
Set fd = fso.OpenTextFile(SVLAFile, ForReading)
svla = fd.ReadAll
fd.Close
Set fd = Nothing
Else
' Default agreement is nothing.
svla = "The agreement is empty." & vbCrLf
End If

' Regex for matching non-ASCII bytes
Set highchar = New RegExp
highchar.Pattern = "[\x80-\xff]"
highchar.Global = True
highchar.IgnoreCase = False

' Regex for matching letters and common punctuation.
Set nonchar = New RegExp
nonchar.Pattern = "[^a-z .,()\-=]"
nonchar.Global = True
nonchar.IgnoreCase = True

' First regex for matching common EULA terms. We insist on at least one match
' in each group to increase accuracy.
Set term1 = New RegExp
term1.Pattern = "(license\s*agreement|eula|terms\s*and\s*conditions|limited\s*license|limited\s*warranty)"
term1.Global = True
term1.IgnoreCase = True

' Second regex for matching common EULA terms. We insist on at least one match
' in each group to increase accuracy.
Set term2 = New RegExp
term1.Pattern = "(reverse-?\s*engineer|dis-?assemble|de-?compile|as-?\s*is)"
term1.Global = True
term1.IgnoreCase = True

' Search starting at C:\Windows\TEMP (or wherever).
numeula = 0
recurse(tmp)

' If nothing was found, say so.
If numeula = 0 Then
MsgBox "No End-User License Agreements found in " & vbCrLf & tmp & ".", _
vbOkOnly, "No EULAs found"
End If

Shep©

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Apr 30, 2002, 7:21:36 PM4/30/02
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On Tue, 30 Apr 2002 21:32:26 GMT, It was a dark and stormy night when
A Malfunction <ta...@hand.invalid> wrote:

>This is a Windows VBScript I created to remove the click-through

Ah!.The sweet smell of,"BULLSIT".
Game one =)

ramdac

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May 1, 2002, 2:50:34 PM5/1/02
to
Shep? <sh...@gmx.co.uk> wrote in message news:<ql9ucuohca9lpqvnt...@4ax.com>...

And how would you know? :)

A Malfunction

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May 1, 2002, 3:22:53 PM5/1/02
to
Usenet Patrol <mo...@illuminati.gov> wrote in
news:akc0du4g258gaueef...@4ax.com:

> If you can't see the value of this, and don't have any constructive
> criticism, kindly keep your pie-hole shut.

Unfortunately I made a small typo in the script, as someone on Slashdot
<http://slashdot.org/yro/02/05/01/1513209.shtml> pointed out. For the
three lines under 'Set term2 = New RegExp', change 'term1' to 'term2'. Not
a big deal since the script will work fine anyway, but worth mentioning.

David Wurz

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May 1, 2002, 6:34:49 PM5/1/02
to
Your VB script ought to prove most interesting in the weeks to come.
Keep us posted on responses.

Technobarbarian

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May 1, 2002, 7:05:14 PM5/1/02
to

"Usenet Patrol" <mo...@illuminati.gov> wrote in message
news:akc0du4g258gaueef...@4ax.com...
> In alt.privacy, this little turd floated to the top of the punch bowl,
> and proclaimed:
> If you can't see the value of this, and don't have any constructive
> criticism, kindly keep your pie-hole shut.

Get a grip, you're on usenet, you can't expect everyone to praise your
useless little toy. If can only tolerate praise you shouldn't show your toy
to anyone but yer mommy. What in the world do you think you can really do
with the thing? And if you believe that it's anything other than a silly toy
you need to talk to any second year law student or above to have the proper
hole punched in your fantasy.

TB


A Malfunction

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May 1, 2002, 11:09:41 PM5/1/02
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"Technobarbarian" <d_murry-...@excite.com> wrote in
news:aapsbr$clqd1$1...@ID-140828.news.dfncis.de:

> And if you believe that it's anything other than a silly toy you need
> to talk to any second year law student or above to have the proper
> hole punched in your fantasy.

If you have specific objections to the line of reasoning in my original
post, then feel free to bring them up. If you're only going to flail your
arms and spout insults, then please don't waste my time. For starters, I
hope you are prepared to explain in precise terms why the law should treat
buying software any differently from buying a book at the same store.

Technobarbarian

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May 2, 2002, 2:31:46 AM5/2/02
to

"A Malfunction" <ta...@hand.invalid> wrote in message
news:V52A8.258704$Ge3.2...@news.easynews.com...

Yup, about the time I find a book with a EULA I'll tell ya' all 'bout
the differences. And the first time a book messes up my operating system I
quess I'll be able to go sue the publisher because there wasn't a EULA.

Again--what in the world do you think this silly toy will accomplish?
You are not going to be able to hold the software company to any higher
standard than what they agreed to in the EULA just because you ignored it,
and as a practical matter you won't be able to anything that you couldn't
otherwise do. If there's a "line of reasoning" here please explain it,
because I really cannot see what your toy accomplishes.

TB

"You must wander the wastelands of Usenet, but bring your insanity,
they don't take common sense"


Jake

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May 2, 2002, 8:45:47 AM5/2/02
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> This is a Windows VBScript I created to remove the click-through
> End-User License Agreements from retail software I install.

The problem is, I've tried this on at least half a dozen different
application installers, and it doesn't work on any of them. And I
followed the instructions? Does it not work with installshield?

A Malfunction

unread,
May 2, 2002, 9:51:20 AM5/2/02
to
"Technobarbarian" <d_murry-...@excite.com> wrote in
news:aaqmh4$co7k4$1...@ID-140828.news.dfncis.de:

> Yup, about the time I find a book with a EULA I'll tell ya' all 'bout
> the differences. And the first time a book messes up my operating
> system I quess I'll be able to go sue the publisher because there
> wasn't a EULA.

Nope, not good enough. The basis for EULAs seems to be that I have no
legal rights to run the software unless I accept the EULA. Why then, do I
not need an EULA to read a book I've purchased in exactly the same way?

Like any contract, I am entitled to make changes to an EULA before signing
it. Whether the other party accepted those changes is a matter of debate,
but in this case who cares? Their agreement isn't giving me anything I
don't already have so I don't need it anyway. Without the EULA, the only
thing limiting my use of the software is copyright law.

> Again--what in the world do you think this silly toy will accomplish?

As I said originally, it's as much to make a point as anything else.
Legally, EULAs don't have a leg to stand on and here's yet another way to
work around the silly things.

A Malfunction

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May 2, 2002, 9:55:57 AM5/2/02
to
cool...@hotmail.com (Jake) wrote in
news:3bacc62f.02050...@posting.google.com:

> The problem is, I've tried this on at least half a dozen different
> application installers, and it doesn't work on any of them. And I
> followed the instructions? Does it not work with installshield?

Hm, what OS are you using? I could only test it on Win98. That's
surprising though, I tried the script with several installers here and the
only one it didn't work on was one that displayed license.txt right off the
CD. Can you give me some examples of apps where it doesn't work?

A Malfunction

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May 2, 2002, 1:22:32 PM5/2/02
to
Anonymous <Nobody> wrote in news:3cd0ba69$1_3@anonymous:

> I am getting a syntax error at line 215, char 16.

Word wrap maybe? Try copying it directly from
<http://groups.google.com/groups?selm=K3Ez8.199674%24Ge3.1784104%40news.eas
ynews.com>.

Technobarbarian

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May 2, 2002, 7:48:55 PM5/2/02
to

"A Malfunction" <ta...@hand.invalid> wrote in message
news:svbA8.109882$f_4....@news.easynews.com...

> "Technobarbarian" <d_murry-...@excite.com> wrote in
> news:aaqmh4$co7k4$1...@ID-140828.news.dfncis.de:
>
> > Yup, about the time I find a book with a EULA I'll tell ya' all 'bout
> > the differences. And the first time a book messes up my operating
> > system I quess I'll be able to go sue the publisher because there
> > wasn't a EULA.
>
> Nope, not good enough

Oh well, it's a useless side track anyway.

> Like any contract, I am entitled to make changes to an EULA before signing
> it.

Check out the elements of a contract sometime--the things that must
be there for it to be a contract--especially look at "offer and acceptance."


Whether the other party accepted those changes is a matter of debate,
> but in this case who cares? Their agreement isn't giving me anything I
> don't already have so I don't need it anyway. Without the EULA, the only
> thing limiting my use of the software is copyright law.
>
> > Again--what in the world do you think this silly toy will accomplish?
>
> As I said originally, it's as much to make a point as anything else.
> Legally, EULAs don't have a leg to stand on and here's yet another way to
> work around the silly things.

Oh well hell, if you're trying to make a statement of great social and
political import ya' ain't takin' it far enough. Instead of just jumping
over the EULA you need to replace it with one of your own. I'd suggest
trying various levels of sarcasm and satire. Then send registered letters to
the software manufacturers telling them what you did and suggesting that
unless they reject your EULA immediately, by registered letter, you will
consider your EULA legally binding. I'm sure it would brighten many people's
day.

My apologies--this thing ain't a toy--it's a pacifier.

TB


A Malfunction

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May 3, 2002, 12:28:39 AM5/3/02
to
"Technobarbarian" <d_murry-...@excite.com> wrote in
news:aasj9p$dis1o$1...@ID-140828.news.dfncis.de:

> Check out the elements of a contract sometime--the things that must
> be there for it to be a contract--especially look at "offer and
> acceptance."

Exactly. The main goal here is to avoid accepting the manufacturer's
agreement as it is written. Since the installer won't let me simply
decline the agreement and continue, I'll do the next best thing and modify
it to null before accepting it. Whether the other party accepted the
changes or not (and you could make the case either way) is irrelevant;
either there is no contract or there's an empty one. Either way the result
is that, as the legal owner of the plastic disc, I retain full rights to
use the software under copyright law.

> Oh well hell, if you're trying to make a statement of great social and
> political import ya' ain't takin' it far enough. Instead of just
> jumping over the EULA you need to replace it with one of your own.

Which is why I also pointed to <http://www.cexx.org/svla.htm> in the
original post. But getting the manufacturer held to some agreement you
wrote would only be a bonus--the main thing is to avoid the EULA and
preserve your basic property rights.

> My apologies--this thing ain't a toy--it's a pacifier.

Judging from some of the responses I've read so far, a number of people had
simply accepted on faith that EULAs are necessary and binding and never
thought to question them. Now at least some of them are seeing how absurd
that is, and that can only be a good thing. Surely you don't measure
success by the presence of torches and pitchforks. :)

A Malfunction

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May 3, 2002, 12:44:20 AM5/3/02
to
Anonymous <Nobody> wrote in news:3cd0b3a8_1@anonymous:

> Keep up the good work and kill file the detractors. EULAs irritate the
> hell out of me. It's as if I bought a car but had to unilaterally
> accept restrictions on where I could drive it, how fast I could drive
> it and to whom I could lend it with no say whatsoever in the matter.
> And I don't learn about the restrictions until after I have driven the
> car home and have paid in full non refundable. Blah!

Here's another one:

[You come home one day to find a strange person standing outside your front
door.]
Man: Excuse me, sir. I cannot let you enter this house.
You: What? This is my house.
Man: Yes, but you see, the wallpaper is a copyrighted design owned by me.
You: But I bought the wallpaper, it came with the house!
Man: No, you only bought the physical materials. I still own the visual
contents of the paper. By viewing the design without my permission you
have committed infringement upon my intellectual property and may be liable
for civil and/or criminal penalties.
You: Huh?
Man: Fear not, just sign this license agreement and I will not pursue legal
action against you for any copyright theft committed thus far.
[He hands you a 10 page legal document.]
You: What the hell is all this?
Man: It is an industry standard wallpaper viewer license agreement (WVLA)
that allows you to enjoy the benefits of my creativity while protecting my
intellectual property rights. In addition to not duplicating the design,
you agree to seek my permission before allowing any others into your home
who might view the copyrighted wallpaper pattern. You agree that I may
confiscate or destroy any cameras or reflective surfaces in your home as
they may be used to create infringing copies of the intellectual property.
You authorize me to inspect the house at any time to ensure that the
vertical alignment of the hangings is within acceptable tolerance and that
no unauthorized defacement (e.g. by unsupervised children) of the design
has occured. I may also alter lighting or other decor if I feel it
conflicts with the wallpaper aesthetics or in any way presents my work
unfavorably. Such alterations are at your own expense and I am not liable
for any damage that may occur to your home as a result.

Doc.Cypher

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May 3, 2002, 3:08:30 AM5/3/02
to mail...@freedom.gmsociety.org
-----BEGIN PGP SIGNED MESSAGE-----

Now you're being silly. Software is a different animal, and such
comparisons don't work.

Firstly, I should point out that I think that it should be illegal to have
a license agreement that you can't review before you purchase, but that is
wholly different from what you're doing here. You are circumventing the
display of the license agreement, and I very much doubt if a court would
find you exempt from its terms because of this. You'd probably find it
being argued that you were aware of its existence otherwise you couldn't
have removed it. And, the court would probably rule that by not agreeing to
the terms of the license you had no rights to use the software.

Secondly, you should be aware of the situation with more serious software
such as proprietary operating systems or packages to run on mainframes.
With such there are generally two separate purchases. First the purchase of
a license to use the software, and second a purchase of media containing
said software. Of course, in some instances you don't need to purchase the
media and can instead download the software.

Your other example was books, well with books you own the paper you bought,
but you certainly don't own the words within the book. They are the
intellectual copyright of the author or publisher. You can't copy them onto
blank paper and sell that on, that is infringement of copyright. Books are
a little like software, there *is* an end-user license agreement...

"This book is sold subject to the condition that it shall not,
by way of trade or otherwise, be lent, re-sold, hired out or
otherwise circulated without the publisher's prior consent
in any form of binding or cover other than that in which it
is published and without a similar condition including this
condition being imposed on the subsequent purchaser."

Understanding software distribution as a "purchase" is probably where you
are going wrong. It is much more like a lease (even if you only need make
one payment for a lifetime lease). If you really want to buy a piece of
software you need really deep pockets. Try phoning M$ and telling them you
want to buy M$ Word. When they tell you the price, point out you don't want
a licence, you want to own the software. The quoted figure will then be in
the millions.


Doc.
- --
The bigger the humbug, the better people will like it.
~ Phineas Taylor Barnum. https://vmsbox.cjb.net

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Doc.Cypher

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May 3, 2002, 9:06:48 AM5/3/02
to mail...@freedom.gmsociety.org
-----BEGIN PGP SIGNED MESSAGE-----

On Thu, 02 May 2002, A Malfunction <ta...@hand.invalid> wrote:
>"Technobarbarian" <d_murry-...@excite.com> wrote in
>news:aaqmh4$co7k4$1...@ID-140828.news.dfncis.de:
>
>> Yup, about the time I find a book with a EULA I'll tell ya' all 'bout
>> the differences. And the first time a book messes up my operating
>> system I quess I'll be able to go sue the publisher because there
>> wasn't a EULA.
>
>Nope, not good enough. The basis for EULAs seems to be that I have no
>legal rights to run the software unless I accept the EULA. Why then, do I
>not need an EULA to read a book I've purchased in exactly the same way?

Books come with an EULA. Just look in the first few pages and you'll find
it, here's a sample of one...

"All rights reserved. No part of this publication may be
reproduced, stored in a retrieval system, or transmitted,
in any form or by any means, electronic, mechanical,
photocopying, recording or otherwise, without the prior
permission of the publishers.

This book is sold subject to the condition that it shall not,
by way of trade or otherwise, be lent, re-sold, hired out or
otherwise circulated without the publisher's prior consent
in any form of binding or cover other than that in which it
is published and without a similar condition including this
condition being imposed on the subsequent purchaser."

You need to remember that with a book all you actually "own" is the paper
and ink. The author or publisher owns the words within it.

>Like any contract, I am entitled to make changes to an EULA before signing
>it. Whether the other party accepted those changes is a matter of debate,

An EULA is a contract which the party licensing the software to you has
already agreed to. Should you wish changes you can't do so without having
their agreement, and, in the case of contracts (which an EULA constitutes),
signature.

>but in this case who cares? Their agreement isn't giving me anything I
>don't already have so I don't need it anyway. Without the EULA, the only
>thing limiting my use of the software is copyright law.

Look, you don't own the software. You own a license to use it. There is a
world of difference.


Doc.
- --
The bigger the humbug, the better people will like it.
~ Phineas Taylor Barnum. https://vmsbox.cjb.net

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Doc.Cypher

unread,
May 3, 2002, 10:47:30 AM5/3/02
to mail...@freedom.gmsociety.org
-----BEGIN PGP SIGNED MESSAGE-----

On Fri, 03 May 2002, Anonymous <Nobody> wrote:

<snip>

>> This book is sold subject to the condition that it shall not, by way
>> of trade or otherwise, be lent, re-sold, hired out or otherwise
>> circulated without the publisher's prior consent in any form of
>> binding or cover other than that in which it is published and
>> without a similar condition including this condition being imposed
>> on the subsequent purchaser."
>

>However, I do not recall seeing this clause anywhere. Tough on libraries.
>Tough on used books, a great many of which I have sold and a great many more
>of which I have lent to others. As you may know, both EBay and Amazon make it
>easy to sell used books.

It's horrible legalese - all one sentence. But it doesn't stop you from
lending or selling the book, just from doing so without the original cover
and this notice.


Doc.
- --
The bigger the humbug, the better people will like it.
~ Phineas Taylor Barnum. https://vmsbox.cjb.net

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A Malfunction

unread,
May 3, 2002, 10:50:57 AM5/3/02
to
Doc.Cypher <Use-Author-Address-Header@[127.1]> wrote in
news:2002050307083...@gacracker.org:

> Now you're being silly. Software is a different animal, and such
> comparisons don't work.

Why is it different? Be specific.

> Firstly, I should point out that I think that it should be illegal to
> have a license agreement that you can't review before you purchase,
> but that is wholly different from what you're doing here. You are
> circumventing the display of the license agreement,

Modifying a contract before signing it is a basic legal right that is part
of any negotiation. The only thing in question is whether the other party
accepted my modified contract by continuing the installation anyway. But
that doesn't matter from my point of view. All I care about is saying in a
legally unambiguous way that I did not accept the manufacturer's original
EULA while continuing to exercise my legal right to run the software.

Frankly I'm being extremely generous giving EULAs any legal weight at all
in this discussion. I don't believe clicking "I Agree" should mean
anything if it is the only way to use the software you paid for. In
reality, EULAs are nothing more than an obstruction on your private
property. Like if someone built a fence around your yard and nailed a
lease agreement to the gate. Since some courts have disagreed and decided
that this is magically enforceable in the special case of software, I say
fine, climb over the fence instead. I can play by their stupid rules and
still win.

> Secondly, you should be aware of the situation with more serious
> software such as proprietary operating systems or packages to run on
> mainframes. With such there are generally two separate purchases.

In such cases, both parties sign a contract saying that _before_ anything
changes hands.

Software companies like to say this somehow automatically carries over to
retail software. That does not make it true. The law decides what is a
sale and what isn't. The transaction looked and behaved in every way like
an ordinary sale--right down to charging me sales tax. The law also says
this <http://www4.law.cornell.edu/uscode/17/101.html>:
"Copies" are material objects, other than phonorecords, in which a
work is fixed by any method now known or later developed, and from
which the work can be perceived, reproduced, or otherwise
communicated, either directly or with the aid of a machine or device.
The term "copies" includes the material object, other than a
phonorecord, in which the work is first fixed.
The plastic disc in my hand _is_ the copy and if I own one, I own the
other.

> Your other example was books, well with books you own the paper you
> bought, but you certainly don't own the words within the book.

This is almost word for word what the "wallpaper agent" said. I do own a
copy of the words and can freely use them within the bounds of the law. I
do not own the copyright to those words, but that's because the law says
so, not because the publisher says so. Copyright != Ownership.

> "This book is sold subject to the condition that it shall not, by way
> of trade or otherwise, be lent, re-sold, hired out or otherwise
> circulated without the publisher's prior consent in any form of
> binding or cover other than that in which it is published and without
> a similar condition including this condition being imposed on the
> subsequent purchaser."

Publishers can say whatever the hell they want. Has this actually been
enforced? Not against a book store, since they may have signed a separate
contract with the publisher saying much the same thing, but an actual
individual or some other party that had no contact with the publisher? And
even this doesn't restrict your use of the book, e.g. you may only read it
under Brand X light bulbs.

> Try phoning M$ and telling them you want to buy M$ Word. When they
> tell you the price, point out you don't want a licence, you want to
> own the software. The quoted figure will then be in the millions.

I didn't buy anything from MS. The transaction was between me and Best
Buy. MS is in absolutely no position to say what it was. Ford can't
interfere if you sell your car to someone else. I bet they could make
similar intellectual property claims though. Hm, let's see... You didn't
actually buy that patented automatic transmission, you only licensed the
right to use it, therefore in order to sell the car you need our
permission.

Doc.Cypher

unread,
May 3, 2002, 10:57:32 AM5/3/02
to mail...@freedom.gmsociety.org
-----BEGIN PGP SIGNED MESSAGE-----

On Fri, 03 May 2002, Anonymous <Nobody> wrote:
>In article <2002050307083...@gacracker.org>,
>Use-Author-Address-Header@[127.1] says...
>(Snip)


>
>>Secondly, you should be aware of the situation with more serious software
>>such as proprietary operating systems or packages to run on mainframes.
>>With such there are generally two separate purchases. First the purchase of
>>a license to use the software, and second a purchase of media containing
>>said software. Of course, in some instances you don't need to purchase the
>>media and can instead download the software.
>

>I rather imagine that when General Electric buys a license from IBM for
>mainframe software there is a good deal of negotiation as to the exact
>terms of
>that license. The EULA is not shoved down GE's throat unilaterally. What we
>are talking about here is widespread resentment of unilateral EULAs that may
>very well be unenforceable anyway and a symbolic revolt. I have no problem
>with erasing the EULA before I even see it. How many of you out there have
>actually read one of those things?

Ah, so that post showed up elsewhere. I didn't get it, I got errors back
from one of the M2N gateways, and it didn't show up on google when I
looked. Need to learn more patience. :)

Anyway, I've worked on the negotiation of license terms for software such
as in the example you give. There is room for changes to be made if the
client deems some term unacceptable. Corporate lawyers view it as just
another contract. Of course, some changes may result in an increase in the
price to cover any increased liability the company could be forced to bear.


Doc.
- --
The bigger the humbug, the better people will like it.
~ Phineas Taylor Barnum. https://vmsbox.cjb.net

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Doc.Cypher

unread,
May 3, 2002, 11:25:20 AM5/3/02
to mail...@freedom.gmsociety.org
On Fri, 03 May 2002, A Malfunction <ta...@hand.invalid> wrote:
>Doc.Cypher <Use-Author-Address-Header@[127.1]> wrote in
>news:2002050307083...@gacracker.org:
>
>> Now you're being silly. Software is a different animal, and such
>> comparisons don't work.
>
>Why is it different? Be specific.

Software is licensed, you buy the media containing the copy. Wallpaper is
sold and all that the designer retains is copyright on the design.

>> Firstly, I should point out that I think that it should be illegal to
>> have a license agreement that you can't review before you purchase,
>> but that is wholly different from what you're doing here. You are
>> circumventing the display of the license agreement,
>
>Modifying a contract before signing it is a basic legal right that is part
>of any negotiation.

There is no negotiation here. I don't think its right that this license is
hidden inside the box, it should be up front and available for review
before you pay out any money.

>The only thing in question is whether the other party
>accepted my modified contract by continuing the installation anyway.

You don't give them the opportunity to do so, it isn't the software that is
the other party, it's a company and you'd have to notify them of the
changes and give them an opportunity to respond. Don't be surprised if the
response is sure, you can modify the license but we'll have to charge you
more in case of increased liability.

>But
>that doesn't matter from my point of view. All I care about is saying in a
>legally unambiguous way that I did not accept the manufacturer's original
>EULA while continuing to exercise my legal right to run the software.

The right to run the software is granted by the license. If you don't agree
to the license you don't have a right to run the software. You can stick
the CD in your walkman and listen to it, but if you put the software on a
computer you've got to agree with the license.

>Frankly I'm being extremely generous giving EULAs any legal weight at all
>in this discussion. I don't believe clicking "I Agree" should mean
>anything if it is the only way to use the software you paid for. In
>reality, EULAs are nothing more than an obstruction on your private
>property. Like if someone built a fence around your yard and nailed a
>lease agreement to the gate. Since some courts have disagreed and decided
>that this is magically enforceable in the special case of software, I say
>fine, climb over the fence instead. I can play by their stupid rules and
>still win.

It's lease vs ownership. If you can't see the difference I'll give up and
let you be happy.

>> Secondly, you should be aware of the situation with more serious
>> software such as proprietary operating systems or packages to run on
>> mainframes. With such there are generally two separate purchases.
>
>In such cases, both parties sign a contract saying that _before_ anything
>changes hands.

This method of selling software sets a precedent. Manufacturers of
shrink-wrapped software are expoiting this.

>Software companies like to say this somehow automatically carries over to
>retail software. That does not make it true. The law decides what is a
>sale and what isn't. The transaction looked and behaved in every way like
>an ordinary sale--right down to charging me sales tax. The law also says
>this <http://www4.law.cornell.edu/uscode/17/101.html>:
> "Copies" are material objects, other than phonorecords, in which a
> work is fixed by any method now known or later developed, and from
> which the work can be perceived, reproduced, or otherwise
> communicated, either directly or with the aid of a machine or device.
> The term "copies" includes the material object, other than a
> phonorecord, in which the work is first fixed.

I think you'll find that "Copies" has been carried over to CDs and tapes so
the phonorecords clause applies.

>The plastic disc in my hand _is_ the copy and if I own one, I own the
>other.

What other? You own the media, not the content - same as a book.

>> Your other example was books, well with books you own the paper you
>> bought, but you certainly don't own the words within the book.
>
>This is almost word for word what the "wallpaper agent" said. I do own a
>copy of the words and can freely use them within the bounds of the law. I
>do not own the copyright to those words, but that's because the law says
>so, not because the publisher says so. Copyright != Ownership.

Copyright is where your examples break down. The wallpaper guy owns the
copyright on the wallpaper design, not the actual pieces of wallpaper. With
software you don't own it, you buy a license to use it and the media
containing a copy is generally included. The phonorecords clause from your
above quote applies and this copy is not a material object - the media
containing it is.

>> "This book is sold subject to the condition that it shall not, by way
>> of trade or otherwise, be lent, re-sold, hired out or otherwise
>> circulated without the publisher's prior consent in any form of
>> binding or cover other than that in which it is published and without
>> a similar condition including this condition being imposed on the
>> subsequent purchaser."
>
>Publishers can say whatever the hell they want. Has this actually been
>enforced? Not against a book store, since they may have signed a separate
>contract with the publisher saying much the same thing, but an actual
>individual or some other party that had no contact with the publisher? And
>even this doesn't restrict your use of the book, e.g. you may only read it
>under Brand X light bulbs.

For good reason this would be enforced against a bookstore. When a book is
not sold the practice is for the bookstore to remove and return the cover
for a refund. They are then expected to destroy the remainder of the book.

>> Try phoning M$ and telling them you want to buy M$ Word. When they
>> tell you the price, point out you don't want a licence, you want to
>> own the software. The quoted figure will then be in the millions.
>
>I didn't buy anything from MS. The transaction was between me and Best
>Buy. MS is in absolutely no position to say what it was. Ford can't
>interfere if you sell your car to someone else. I bet they could make
>similar intellectual property claims though. Hm, let's see... You didn't
>actually buy that patented automatic transmission, you only licensed the
>right to use it, therefore in order to sell the car you need our
>permission.

Best buy is acting as an agent for M$ or whoever's software you are buying
a license for. As to the automatic transmission, you bought what your
example says - a copy, a material object. Software isn't a material object.


Doc.

A Malfunction

unread,
May 3, 2002, 3:16:57 PM5/3/02
to
Doc.Cypher <Use-Author-Supplied-Address-Header@[127.1]> wrote in
news:2002050315252...@gacracker.org:

> Software is licensed, you buy the media containing the copy. Wallpaper
> is sold and all that the designer retains is copyright on the design.

You did not justify the distinction, you merely restated it. What _law_
says that buying copyrighted software is only a lease but buying
copyrighted wallpaper is a sale?

> You don't give them the opportunity to do so, it isn't the software
> that is the other party, it's a company and you'd have to notify them
> of the changes and give them an opportunity to respond. Don't be
> surprised if the response is sure, you can modify the license but
> we'll have to charge you more in case of increased liability.

I don't care if they accepted it or not. I don't need anything from them.
As the legal owner of a plastic disc, I am already entitled to use it
within the bounds of the law. I have to be, or I wouldn't be able to run
setup.exe and see the EULA in the first place.

> The right to run the software is granted by the license. If you don't
> agree to the license you don't have a right to run the software.

Says who? If your response is "the EULA", that's not good enough. I
haven't accepted the EULA yet so its terms are meaningless.

> It's lease vs ownership. If you can't see the difference I'll give up
> and let you be happy.

If a transaction looks like a sale, then it is a sale. The courts decide
this, not software manufacturers--especially if they weren't even a party
in the transaction.

> This method of selling software sets a precedent. Manufacturers of
> shrink-wrapped software are expoiting this.

So because it's possible to lease a car, all car sales are now leases by
this "precedent"?

> I think you'll find that "Copies" has been carried over to CDs and
> tapes so the phonorecords clause applies.

Audio CDs and tapes maybe. Not software. Here's the exact definition of
phonorecord:
"Phonorecords" are material objects in which sounds, other than
those accompanying a motion picture or other audiovisual work, are


fixed by any method now known or later developed, and from which the

sounds can be perceived, reproduced, or otherwise communicated, either


directly or with the aid of a machine or device. The term

"phonorecords" includes the material object in which the sounds are
first fixed.
That doesn't sound like software to me. I'm curious why the phonorecord
vs. everything else distinction is even there to begin with though.

> What other? You own the media, not the content - same as a book.

No one "owns" the content exclusively. The publisher holds a copyright on
it (for a limited time), which is not the same thing. Applying full-
fledged ownership rights to ideas would be incredibly stupid and
inefficient.

> The wallpaper guy owns the copyright on the wallpaper design, not the
> actual pieces of wallpaper.

Exactly. He owns a copyright, not the design itself. He can't dictate how
people use it, only stop them from copying it.

> For good reason this would be enforced against a bookstore. When a
> book is not sold the practice is for the bookstore to remove and
> return the cover for a refund. They are then expected to destroy the
> remainder of the book.

Like I said, the book store may have signed some other distribution
agreement before the publisher sold the books to them. They probably did,
in fact, to set up that refund arrangement. Give me an example of this
being enforced against an individual.

> Best buy is acting as an agent for M$ or whoever's software you are
> buying a license for.

Then why are they charging me sales tax on a lease? And don't say I'm
buying a license, that is by definition a lease.

Chris

unread,
May 4, 2002, 2:39:25 AM5/4/02
to
Hey, remember back on Fri, 03 May 2002 10:42:30 -0400, when Anonymous <Nobody>
said:

>In article <2002050313064...@gacracker.org>,
>Use-Author-Supplied-Address-Header@[127.1] says...
<snip>


>> This book is sold subject to the condition that it shall not,
>> by way of trade or otherwise, be lent, re-sold, hired out or
>> otherwise circulated without the publisher's prior consent
>> in any form of binding or cover other than that in which it
>> is published and without a similar condition including this
>> condition being imposed on the subsequent purchaser."
>

>However, I do not recall seeing this clause anywhere.

AFAIK, it's only found in British books, and is dependant on UK law.

<snip>

IMO, a uni-laterally imposed "licence"/"contract" whose terms are only revealed
after the purchase is made, and the goods opened and (started to be) put to use
is a crock of festering shit from the pus-daubed ass of syphlitic goats.

My thanks to the person who posted this interesting little proggie, and to those
who design EULA's--in the immortal words of Kryton, "Sit on this upraised middle
digit, and swivel till you squeal like a piglet."


--
The law, in its majestic equality, forbids the rich as well as the poor to sleep
under bridges, to beg in the streets, and to steal bread. -- Anatole France

Doc.Cypher

unread,
May 4, 2002, 4:16:34 AM5/4/02
to mail...@freedom.gmsociety.org
-----BEGIN PGP SIGNED MESSAGE-----

On Fri, 03 May 2002, A Malfunction <ta...@hand.invalid> wrote:

>Doc.Cypher <Use-Author-Supplied-Address-Header@[127.1]> wrote in
>news:2002050315252...@gacracker.org:
>
>> Software is licensed, you buy the media containing the copy. Wallpaper
>> is sold and all that the designer retains is copyright on the design.
>
>You did not justify the distinction, you merely restated it. What _law_
>says that buying copyrighted software is only a lease but buying
>copyrighted wallpaper is a sale?

Right, sorry. The difference is that you don't have to copy the wallpaper
to use it. You must copy the software into your computer to use it. Even if
it runs off the CD you've got to copy it into memory to use it. That
requires that you have a license or you are breaching the copyright.

>I don't care if they accepted it or not. I don't need anything from them.
>As the legal owner of a plastic disc, I am already entitled to use it
>within the bounds of the law. I have to be, or I wouldn't be able to run
>setup.exe and see the EULA in the first place.

See above. You can do anything you like with the disc. You can't copy the
content without a license.

>> The right to run the software is granted by the license. If you don't
>> agree to the license you don't have a right to run the software.
>
>Says who? If your response is "the EULA", that's not good enough. I
>haven't accepted the EULA yet so its terms are meaningless.

What *is* wrong is that the EULA is not available for inspection up front.
I'd like to see that challenged in court.

<snip>

>So because it's possible to lease a car, all car sales are now leases by
>this "precedent"?

Sheesh! No.

>> I think you'll find that "Copies" has been carried over to CDs and
>> tapes so the phonorecords clause applies.
>
>Audio CDs and tapes maybe. Not software. Here's the exact definition of
>phonorecord:
> "Phonorecords" are material objects in which sounds, other than
> those accompanying a motion picture or other audiovisual work, are
> fixed by any method now known or later developed, and from which the
> sounds can be perceived, reproduced, or otherwise communicated, either
> directly or with the aid of a machine or device. The term
> "phonorecords" includes the material object in which the sounds are
> first fixed.
>That doesn't sound like software to me. I'm curious why the phonorecord
>vs. everything else distinction is even there to begin with though.

I can't answer that, I don't know the precise evolution of the law in this
area.

>> What other? You own the media, not the content - same as a book.
>
>No one "owns" the content exclusively. The publisher holds a copyright on
>it (for a limited time), which is not the same thing. Applying full-
>fledged ownership rights to ideas would be incredibly stupid and
>inefficient.

That's just what a patent is.

>> The wallpaper guy owns the copyright on the wallpaper design, not the
>> actual pieces of wallpaper.
>
>Exactly. He owns a copyright, not the design itself. He can't dictate how
>people use it, only stop them from copying it.

Which, as I point out above, is the issue here. You don't have to copy the
wallpaper to use it. You *do* have to copy the software to use it. That
requires a license otherwise you are breaching copyright.

>> For good reason this would be enforced against a bookstore. When a
>> book is not sold the practice is for the bookstore to remove and
>> return the cover for a refund. They are then expected to destroy the
>> remainder of the book.
>
>Like I said, the book store may have signed some other distribution
>agreement before the publisher sold the books to them. They probably did,
>in fact, to set up that refund arrangement. Give me an example of this
>being enforced against an individual.

The clause is there primarily to deal with bookstores, I only brought this
up to point out that there is a sort-of EULA on a book. The ability to
actually enforce this is not relevant to the argument.

>> Best buy is acting as an agent for M$ or whoever's software you are
>> buying a license for.
>
>Then why are they charging me sales tax on a lease? And don't say I'm
>buying a license, that is by definition a lease.

Then challenge them applying the sales tax.

Anyway, the effect of your program is to use the software without a valid
license. The software industry takes a pretty dim view of that.


Doc.
- --

The bigger the humbug, the better people will like it.
~ Phineas Taylor Barnum. https://vmsbox.cjb.net

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Eric Lee Green

unread,
May 4, 2002, 12:31:02 PM5/4/02
to
In article <2002050408163...@gacracker.org>, Doc.Cypher ruminated:

> Which, as I point out above, is the issue here. You don't have to copy the
> wallpaper to use it. You *do* have to copy the software to use it. That
> requires a license otherwise you are breaching copyright.

*BULLSHIT*. If you buy copyrighted text, you automatically are granted
"fair use" rights, one of which is the right to read it (i.e., copy
its contents to the retina of your eye, from whence the content is
then interpreted by the grey matter in your brain).

If a blind person buys a book, he has the right to use one of those
"blind reader" programs to read it aloud to him. He owns the book.
He has the right to read the book in any way he wishes. The fact
that reading the book in this instance requires running a scanner
(scanning a page) hooked to a computer (i.e., a temporary copy of
a page for purposes of reading the book) is irrelevant.

In the case of software, the way to "read" this book is to read it
into computer memory. That doesn't require a license of any sort.
That is simple "shifting", as covered by the provisions of the Betamax
case (which granted you the right to make temporary copies of
copyrighted videos broadcast over the airwaves in order to exercise
your fair use rights).

Now, I know about all the bullshit that software publishers have
trotted out in an attempt to say that software is somehow different
from books and video tape. But I design these damned things for a
living, so I know the truth: the only difference between a book and a
computer program is that one is copied via light beams to the retina,
while the other is copied via light beams (CD-ROM laser) to the
computer's memory, in order to make use of its contents.

--
Eric Lee Green er...@badtux.org http://badtux.org/eric
GnuPG public key at http://badtux.org/eric/eric.gpg
BadTux News Links http://badtux.org

Doc.Cypher

unread,
May 4, 2002, 12:49:19 PM5/4/02
to mail...@freedom.gmsociety.org
-----BEGIN PGP SIGNED MESSAGE-----

On Sat, 04 May 2002, er...@badtux.org (Eric Lee Green) wrote:

<snip>

>Now, I know about all the bullshit that software publishers have
>trotted out in an attempt to say that software is somehow different
>from books and video tape. But I design these damned things for a
>living, so I know the truth: the only difference between a book and a
>computer program is that one is copied via light beams to the retina,
>while the other is copied via light beams (CD-ROM laser) to the
>computer's memory, in order to make use of its contents.

Okay Eric, I feel suitable chastised.


Doc.
- --
The bigger the humbug, the better people will like it.
~ Phineas Taylor Barnum. https://vmsbox.cjb.net

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A Malfunction

unread,
May 4, 2002, 1:24:52 PM5/4/02
to
Doc.Cypher <Use-Author-Supplied-Address-Header@[127.1]> wrote in
news:2002050408163...@gacracker.org:

> Right, sorry. The difference is that you don't have to copy the
> wallpaper to use it. You must copy the software into your computer to
> use it. Even if it runs off the CD you've got to copy it into memory
> to use it. That requires that you have a license or you are breaching
> the copyright.

Actually, that copy is always permitted. Even if it weren't covered under
the blanket of fair use (personal copies, backups, etc. don't necessarily
infringe copyright), there's
<http://www4.law.cornell.edu/uscode/17/117.html>:
Notwithstanding the provisions of section 106, it is not an
infringement for the owner of a copy of a computer program to make or
authorize the making of another copy or adaptation of that computer
program provided:
(1) that such a new copy or adaptation is created as an essential step
in the utilization of the computer program in conjunction with a
machine and that it is used in no other manner, or
Besides, you probably _could_ extend your argument to cover wallpaper: In
order to use it, you have to look at it, and that creates a copy of the
pattern inside your eyeball. Plus all those reflective surfaces in your
home that the "wallpaper copyright agent" was complaining about.

It would be utterly ridiculous if that sort of thing counted as copyright
infringement. Copyright is (supposed to be, anyway) about controlling
publication of work, not accounting for every random incidental copy that
shows up in its use. It allows society to buy, sell, trade, give away
copies of an original work just like toasters or bananas or other physical
objects without worry that someone will flood the market with their own
copies of the same information.

> What *is* wrong is that the EULA is not available for inspection up
> front. I'd like to see that challenged in court.

I'm glad we agree there.

>> No one "owns" the content exclusively. The publisher holds a
>> copyright on it (for a limited time), which is not the same thing.
>> Applying full- fledged ownership rights to ideas would be incredibly
>> stupid and inefficient.
>
> That's just what a patent is.

Even a patent isn't absolute. I can use a patented invention without extra
permission from the patent holder. All I have to do is buy it like
anything else. What's prohibited is developing a similar device and
marketing it on my own. This arrangement is enforced entirely by law with
no EULAs or other contracts needed. Again, my script does not remove the
copyright on the software--it couldn't do that even if I wanted it to--it
only removes the extra restrictions that have nothing to do with the law.
Warez kiddies can run it all they want, but it won't help them at all.

> The clause is there primarily to deal with bookstores, I only brought
> this up to point out that there is a sort-of EULA on a book. The
> ability to actually enforce this is not relevant to the argument.

The reason I asked was that if it doesn't apply to end-users--people who
simply bought the book with no extra agreements beforehand--it's not really
analogous to a software EULA.

> On Fri, 03 May 2002, A Malfunction <ta...@hand.invalid> wrote:
>
>> Then why are they charging me sales tax on a lease? And don't say
>> I'm buying a license, that is by definition a lease.
>
> Then challenge them applying the sales tax.

That may be possible, but I'd rather put the blame where it belongs. The
transaction was a sale until the software company intervened after the
fact. Could this be illegal in itself? I want to say "restraint of trade"
but I don't know if that's the right term.

> Anyway, the effect of your program is to use the software without a
> valid license. The software industry takes a pretty dim view of that.

I bet they do, but as long as I'm within the law I'm not particularly
concerned about hurting their feelings. I'm sure they also take a dim view
of my using free software when there are commercial equivalents, but my
response is the same: Tough shit. The software industry has to learn that
it isn't king of the world and can't make up its own rules for basic
commerce.

Eric Lee Green

unread,
May 4, 2002, 6:17:16 PM5/4/02
to
In article <2002050313064...@gacracker.org>, Doc.Cypher ruminated:

> You need to remember that with a book all you actually "own" is the paper
> and ink. The author or publisher owns the words within it.

While that may be true in a philosophical sense, that's not what the
Constitution of the United States says. The Constitution of the United
States says that the author only owns the copyright (COPY right) to the
text of the story. The words themselves are not owned by anybody. The
notion that ideas could be owned would have surprised the founders of
this country, who set up its legal system.

To quote the Constitution:

Article I, Section 8:
The Congress shall have Power ... To promote the Progress of Science
and useful Arts, by securing for limited Times to Authors and
Inventors the exclusive Right to their respective Writings and
Discoveries;

That is, the Constitution has no provision for the ownership of the
actual words themselves. It merely grants the author of those words
exclusive COPY rights for a limited time. For patented items, the
Constitution has no provision for the ownership of the ideas embodied
by the item. It merely grants the inventor the exclusive right to use
those ideas for a limited time.

"Intellectual property" (a term invented by copyright and patent
holders to trick people into believing that copyright and patent
holders own more than they actually own) is not the text of a novel or
the plan for an automobile. "Intellectual property" is the exclusive
rights granted by Congress, as embodied by copyright law (which gives
the author certain rights regarding the copying, modifying, and
performing of the literary work during the lifetime of the
Congressionally-granted COPY right) and patent law (which gives the
patent owner certain rights over the manufacturing and use of an
invention during the term of the congressionally-granted patent).

Doc.Cypher

unread,
May 5, 2002, 3:54:00 AM5/5/02
to mail...@freedom.gmsociety.org
-----BEGIN PGP SIGNED MESSAGE-----

On Sat, 04 May 2002, er...@badtux.org (Eric Lee Green) wrote:
>In article <2002050313064...@gacracker.org>, Doc.Cypher ruminated:
>> You need to remember that with a book all you actually "own" is the paper
>> and ink. The author or publisher owns the words within it.
>
>While that may be true in a philosophical sense, that's not what the
>Constitution of the United States says. The Constitution of the United
>States says that the author only owns the copyright (COPY right) to the
>text of the story. The words themselves are not owned by anybody. The
>notion that ideas could be owned would have surprised the founders of
>this country, who set up its legal system.
>
>To quote the Constitution:
>
>Article I, Section 8:
> The Congress shall have Power ... To promote the Progress of Science
> and useful Arts, by securing for limited Times to Authors and
> Inventors the exclusive Right to their respective Writings and
> Discoveries;
>
>That is, the Constitution has no provision for the ownership of the
>actual words themselves. It merely grants the author of those words
>exclusive COPY rights for a limited time. For patented items, the
>Constitution has no provision for the ownership of the ideas embodied
>by the item. It merely grants the inventor the exclusive right to use
>those ideas for a limited time.

Ah, thanks. That's a subtle distinction that caught me out, I'm sure it
catches other people too.

>"Intellectual property" (a term invented by copyright and patent
>holders to trick people into believing that copyright and patent
>holders own more than they actually own) is not the text of a novel or
>the plan for an automobile. "Intellectual property" is the exclusive
>rights granted by Congress, as embodied by copyright law (which gives
>the author certain rights regarding the copying, modifying, and
>performing of the literary work during the lifetime of the
>Congressionally-granted COPY right) and patent law (which gives the
>patent owner certain rights over the manufacturing and use of an
>invention during the term of the congressionally-granted patent).

More education for Doc :) Thanks.

Now, about the original poster's little program to remove the EULA...

First, I think there are serious problems with the EULA and it may be
doubtful if the terms can be enforced. Mainly this is because I think it
should be available for review up front and before you part with any money.
However, what situation do you think it puts people in if they actually
remove this?


Doc.
- --
The bigger the humbug, the better people will like it.
~ Phineas Taylor Barnum. https://vmsbox.cjb.net

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Doc.Cypher

unread,
May 5, 2002, 4:10:41 AM5/5/02
to mail...@freedom.gmsociety.org
-----BEGIN PGP SIGNED MESSAGE-----

On Sat, 04 May 2002, A Malfunction <ta...@hand.invalid> wrote:
>Doc.Cypher <Use-Author-Supplied-Address-Header@[127.1]> wrote in
>news:2002050408163...@gacracker.org:

<snip. Eric put me right about copy/copyright and didn't pull any punches>

>> What *is* wrong is that the EULA is not available for inspection up
>> front. I'd like to see that challenged in court.
>
>I'm glad we agree there.

<snip>

>> That's just what a patent is.
>
>Even a patent isn't absolute. I can use a patented invention without extra
>permission from the patent holder. All I have to do is buy it like
>anything else. What's prohibited is developing a similar device and
>marketing it on my own. This arrangement is enforced entirely by law with
>no EULAs or other contracts needed. Again, my script does not remove the
>copyright on the software--it couldn't do that even if I wanted it to--it
>only removes the extra restrictions that have nothing to do with the law.
>Warez kiddies can run it all they want, but it won't help them at all.
>
>> The clause is there primarily to deal with bookstores, I only brought
>> this up to point out that there is a sort-of EULA on a book. The
>> ability to actually enforce this is not relevant to the argument.
>
>The reason I asked was that if it doesn't apply to end-users--people who
>simply bought the book with no extra agreements beforehand--it's not really
>analogous to a software EULA.

It's probably the case that the publishers would like to apply it to Joe Q.
Public as well, but in such cases the trade is probably occurring in an
arena where it would be virtually impossible to police it.

>> On Fri, 03 May 2002, A Malfunction <ta...@hand.invalid> wrote:
>>
>>> Then why are they charging me sales tax on a lease? And don't say
>>> I'm buying a license, that is by definition a lease.
>>
>> Then challenge them applying the sales tax.
>
>That may be possible, but I'd rather put the blame where it belongs. The
>transaction was a sale until the software company intervened after the
>fact. Could this be illegal in itself? I want to say "restraint of trade"
>but I don't know if that's the right term.

Sounds reasonable.

>> Anyway, the effect of your program is to use the software without a
>> valid license. The software industry takes a pretty dim view of that.
>
>I bet they do, but as long as I'm within the law I'm not particularly
>concerned about hurting their feelings. I'm sure they also take a dim view
>of my using free software when there are commercial equivalents, but my
>response is the same: Tough shit. The software industry has to learn that
>it isn't king of the world and can't make up its own rules for basic
>commerce.

I remember when buying Windows for the first time (at a company I was
working for). It came with the license agreement as a pretty-looking
certificate on the front of the manual, times have certainly changed, and
not for the better. The concealment of EULAs within the software needs to
be challenged, but I simply don't think your program does much towards
this. It may make people feel a little better when installing the software,
but I doubt if they'd have much success getting acceptance of liability
from a software company based on having bypassed the EULA. Unfortunately
the software & computer industry have gotten wise to the risks of
legislation impacting on their ability to do business however the hell they
please. You just need to look at the massive lobbying machine M$ have built
to stave off legislation against things like cookies. As I see it the US
government is far too pro-business and won't enact any legislation that
might deal with these problems, perhaps contries like Germany could be
persuaded to look at this and make it illegal to try and apply terms not
available for review prior to the sale.


Doc.
- --
The bigger the humbug, the better people will like it.
~ Phineas Taylor Barnum. https://vmsbox.cjb.net

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Eric Lee Green

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May 5, 2002, 5:41:06 AM5/5/02
to
In article <200205050754...@gacracker.org>, Doc.Cypher ruminated:

> Now, about the original poster's little program to remove the EULA...
>
> First, I think there are serious problems with the EULA and it may be
> doubtful if the terms can be enforced. Mainly this is because I think it
> should be available for review up front and before you part with any money.
> However, what situation do you think it puts people in if they actually
> remove this?

Well, you are basically creating a "modified work" if you do so.
The copyright law gives the copyright holder the exclusive right to make
modified versions of his work. This is why the copyright of the Spanish
version of a novel is still owned by the original author, not by the
translator... the Spanish version is a modified or derivative work.

Similarly, the EULA-free version is a modified or derivative work.
However, there are some situations in which the courts have ruled that
the 1st Amendment overrides the Article 1 -- in particular, when the
modification is made as a form of political protest, a very highly
protected version of free speech. For example, if you took the
Republican party symbol and replaced the E with the Enron symbol, this
is protected by the 1st Amendment, since this would be political
commentary or protest -- commenting upon the connections between the
Republican party and Enron.

However, the courts are still confused about computers and how they
work, and I would not want to be the first person to go before a judge
and say, "Me removing the EULA was a form of political protest." Not
all judges recognize that computer programs are literary works, and
should receive the exact same treatment as all other literary
works. Some judges still get hung up confusing computer programs with
computer hardware -- i.e., as something functional in nature, rather
than literary in nature -- and meander down avenues that are
irrelevant. The fact is that a computer program, by itself, is no
more functional than an instruction book for how to build a bomb.
Both are read by some reader in order to perform a certain task,
whether that be calculating a spreadsheet or building a bomb,
but neither actually does anything by itself. But some courts are
still confused by the difference.

Eric Lee Green

unread,
May 5, 2002, 5:43:58 AM5/5/02
to
In article <200205050810...@gacracker.org>, Doc.Cypher ruminated:

>>The reason I asked was that if it doesn't apply to end-users--people who
>>simply bought the book with no extra agreements beforehand--it's not really
>>analogous to a software EULA.
>
> It's probably the case that the publishers would like to apply it to Joe Q.
> Public as well, but in such cases the trade is probably occurring in an
> arena where it would be virtually impossible to police it.

This is actually a case that the publishers tried to bring against used
book sellers. They lost. This is where the Supreme Court devised its
"First Use" doctrine, which states that when you buy a book, it is the
same as buying any other item -- i.e., you can lend it, sell it,
burn it in your fireplace, do anything you want with it, as long as you
do not violate the specific rights granted to the author by copyright
law.

Message has been deleted

Technobarbarian

unread,
May 5, 2002, 4:19:10 PM5/5/02
to

"Philip Stromer" <pstr...@my-deja.com> wrote in message
news:213d4318.02050...@posting.google.com...
> "Technobarbarian" <d_murry-...@excite.com> wrote in message
news:<aasj9p$dis1o$1...@ID-140828.news.dfncis.de>...

>
> > Check out the elements of a contract sometime--the things that must
> > be there for it to be a contract--especially look at "offer and
> > acceptance."
>
> If I have already purchased the software, all elements of the contract
> have been completed. How can the EULA be part of the contract when I
> never had the chance to review it before paying for the software?

The contract isn't completed until you accept the EULA. They're quite
plainly telling you that if you don't accept the ELUA that's ok too, but
that's the only contract that they're interested in at the retail price.
>
> A typical EULA will say "if you don't agree with these terms, return
> the software for a full refund." That is an ADDITIONAL term, one that
> I never agreed to before the offer and acceptance which manifested
> itself in a sale.
>
> Is such an additional term binding in a court of law? I'm unware of
> any EULA being challenged.

Despite not having made it clear at the point of sale the EULA isn't an
additional item, it's part of what you're are buying. While I'd agree with
others that it's a pretty shabby way to do business, as noted else where you
aren't actually buying the software, you are buying a license to use it.

I'd be surprise if retail EULAs had been challenged in court, we all
just buy for the thing and use it as we see fit anyway. Why bother with
courts?


Dennis


Eric Lee Green

unread,
May 5, 2002, 5:00:41 PM5/5/02
to
In article <ab444i$f47e9$1...@ID-140828.news.dfncis.de>, Technobarbarian
ruminated:

> Despite not having made it clear at the point of sale the EULA isn't an
> additional item, it's part of what you're are buying. While I'd agree with
> others that it's a pretty shabby way to do business, as noted else where you
> aren't actually buying the software, you are buying a license to use it.

Maybe that is true in Germany, or when you are negotiating directly
with a software company. But that is not true in the United States when you
walk into, say, Fry's Electronics, and buy the latest version of
Smash'em Nuke'em. You're purchasing a literary work -- software --
not leasing it. When you purchase a literary work, the U.S. Supreme Court
has ruled that you have certain "fair use" rights regarding it -- such as
the right to resell it, the right to use any technical means needed to
make use of its content (e.g. if you're blind you can use one of those
"blind reader" programs that'll read its contents to you), etc.

Some say that software is not a literary work, it is a functional
work. This is mostly computer illiterates who do not understand the
difference between software and hardware who say this (including a few
computer illiterate courts). Software is an instruction manual telling
hardware how to do things. It is no more a functional work than an
instruction manual telling you how to, say, build a bomb.

> I'd be surprise if retail EULAs had been challenged in court, we all
> just buy for the thing and use it as we see fit anyway. Why bother with
> courts?

Various software companies have tried to enforce EULA's against people
who resell software on, e.g., eBay. So far the only cases that have
made it to court are cases where public interest law groups have paid
for the defense, because otherwise it's not worth taking to court. In
one recent case, a software vendor had two versions of their software
-- one for resale to end users, and one that was bundled with
hardware. Someone resold the bundled version to end users. The court
ruled that because the reseller had not agreed to the EULA (indeed,
had not popped the shrink wrap on the software), the reseller was free
to do so, because any violation of the EULA (if it were valid) would
be on the part of the end user, not the reseller. The court did not
rule on whether the EULA was binding or not, noting that such a ruling
was irrelevant for this particular case.

As far as I know (which is not far, IANAL but I do follow the news),
that's the closest that a EULA case has made it to court. For the most
part, since we're talking only wealthy and vindictive corporations
that generally pursue EULA violations, it's cheaper for individuals to
just settle with the wealthy and vindictive corporation rather than to
fight it in court.

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