EULAs aren't laws. I can't agree to something illegal, nor can I agree to give up rights guaranteed to me by law. It all varies by jurisdiction, and fine print designed to obfuscate the fact that it wasn't a sale probably wouldn't hold up even in jurisdictions where it would otherwise be possible. All of this would have to be tested in various jurisdictions in court.
The troubling part is, that they are making blanket statements about all reverse engineering of abandon-ware regardless of original EULA or even if there is a party left to injure. We're straying dangerously close to "bank robbers use cars so cars should be illegal" territory.
> EULAs aren't laws. I can't agree to something illegal, nor can I agree to give up rights guaranteed to me by law.
Actually, you generally can do the latter, unless the law specifically makes the right not waivable. Contracts, in general, are about giving up rights guaranteed by law.
EULAs can't really be considered the same as contracts in a philosophical sense, since they're presented after sale.
Back in the 90s, there was a Microsoft printed EULA that said that breaking the shrinkwrap counted as agreeing to the EULA, but you couldn't access the EULA without breaking the shrinkwrap (and opening the box). :)
They're contracts. Contracts are binding on the signatories. If you don't like the terms, you don't have to accept them. Also, contracts are evaluated based on what they say, not on what you think they ought to say. I'm no fan of the game publishing industry, but just because you don't like the idea that you're buying a license to use the game in a particular way rather than in perpetuity doesn't mean they're breaking the law.
EULAs aren't contracts; contracts require compensation in kind. You already bought the product (a physical CD containing a game, say), and the EULA wasn't a part of the negotiation of that sale. The EULA only comes after, and you get nothing in exchange for agreeing to it, so it doesn't have any legal force.
Imagine buying a home, and then on move-in day you find another contract taped to the front door that asks you to sign it in exchange for keys. In such a situation, the obvious thing to do is to just ignore the exploitation and call a locksmith. It's your house, after all; you have a prior negotiated sale that says so.
EULAs work if you had to agree to them in advance of the product sale, of course. If you buy something from an online service, chances are you agreed to its EULA before being allowed to buy it. In fact, for "app stores" in particular (iTunes, Steam, etc.) individual products sold therein could have a post-install license with implicitly-fully-enforcable terms requiring no additional agreement, because the terms you agreed to when registering for the store could obligate you to abide by any additional terms shipped with the individual products.
I find myself wondering if you have ever sat down and read a EULA carefully, because typically it includes a statement like this close to the beginning (this one from EA's EULA for The Sims 3, but IMHO pretty typical):
Right to Return: If you do not agree to the terms of this License, and if you purchased this game from
a physical retail store in the United States, and if you have not installed or used the Software, you may
return the Software for a refund or exchange within thirty (30) days from the date of purchase by
following the instructions for return available at warrantyinfo.ea.com.
Most of them say the same things with minor variations, though I don't think it's worth doing a comprehensive survey for a HN comment. What can I say, I'm nerdy enough to read these things to satisfy my own curiosity.
There are lots of things which aren't contracts which have legal force, so this is a huge non-sequitur: you can't leap from "EULAs aren't contracts" to "doesn't have any legal force." Maybe the most charitable way to read you then is saying that it's an "unenforceable contract". But courts are often willing to enforce such contracts, so that's not really true either. Courts have given various reasons why they've enforced EULAs, but I sense that the deepest reason is as a form of syntactic sugar: there is a "right way" to formally do this sort of thing, but that "right way" is much more inconvenient than this way, so this way is allowed too. Yes, technically the store that you bought Adobe Photoshop from should have had a printed contract which they presented to you when you bought the software, much like the many papers you'll have to sign when you're buying a car -- but because you're not buying from Adobe but from a third-party reseller in a vast network, a click-through license makes a lot of economic sense in a way that the "now let's negotiate for the keys to this house!" after-the-fact contract doesn't.
In Australia you can't actually have a valid contract if one party has to give up their rights under consumer law or if it can be proved that either party didn't act in good faith, or if either party was given false pretences as to what the contract contains, which has actually helped out a lot of people here who are tripped up over very cryptic small print, like flood insurance that would cover flash flooding from rain but not tidal inundation.
There is a difference between waivers of specific rights that courts will not enforce (for instance, employee non-competition agreements in California) and the notion that contracts are in the most general sense about enforceably agreeing to give up rights.
To make the Australia comparison more interesting, can I ask if there are consumer law rights that make anti-jailbreaking and copyright terms in game EULAs unenforceable there?
You are right that a EULA can't violate the law, but the law doesn't say you get to keep playing it forever or that you can produce derivative copies.
Contracts are VERY powerful in this country. The old saying that you can't sign your rights away is totally wrong. The default is that you can sign whatever rights you have away unless it is forbidden under the law.
Four words for anyone who thinks they are not bound by the terms of the EULA: Vernor v. Autodesk, bitches. In the USA, EULAs are binding contracts and software distributed under them is licensed for use, not sold. You break the EULA, you lose your license. That's the law.
Except if your disk is damaged and you want to download a working version or get a replacement disk, then it's not just a licence, you gotta buy it again. They want it both ways
That always drove me nuts. It's got to be one or the other. Seems like there might be an interesting court case to be made by say the Internet Archive:
1. Buy a CD and then damage it
2. Then ask for a new one for free, with proof of the damaged one
3. When they refuse, get your lawyer to send the same request certified mail
4. When they officially refuse, sue in small claims and they'll get it tossed out since "you bought it" (hopefully)
5. Tuck this in your back pocket and start archiving and making them re-playable galore
6. When publisher X who told you it was a sale sues for "hacking" go to court for a summary dismissal based on the previous court case where they argued "hey you bought it!" and a judge might have no choice but to agree
In this scenario the game disc can still constitute a license, not the actual game. The contents of the disc would simply be a convenient installation method.
Sure, but if it's a license then the disc is only of marginal value and they should replace it for cheap/free since the LICENSE is what constituted most of the cost, not the PHYSICAL MEDIA.
Ideas like this make me want to study law. Not to be a lawyer, anymore than I study programming to be a programmer, but to get interesting things done.
