The thing about EULAs is that they’re chock-a-block full of crap. Some of it the lawyers know damn well is unenforceable. Some they know are questionable, and some are valid but they know that enforecement would be problematic. They just throw them all in there, and add a line that basically says “if any part of this is proven to be bullshit, it doesn’t invalidate the rest of it.” Because hey, even if they have no legal right to tell you you can’t sell your game, some people might believe they do and that means more money for them.
Fortunately most people don’t read EULAs, and the people who do tend to know which parts are bullshit.
I would agree with that, other than that for the most part, I would say “Some of it the lawyers are pretty damn sure is unenforceable, but they throw it in there anyway to take a shot at it.” Or they are just ignorant; there’s a lot of law to know, and many attorneys also just draft the contract to say whatever they want it to without realizing that other law may prohibit their terms. Or they just do a once-over reading of the Copyright Act or other statutes and presume they “get it” and draft from there, unaware of precedents that have interpretted the statute far differently than they have.
Having read Davidson, SlyFrog is right. I’m surprised, but that case, at least, goes against the grain for contract law in other settings (like parking garages), on the theory that because you click “I Agree” you’re actually on notice of the terms of the contract. Whether that will stand up, I don’t know, but it’s the law out in Missouri (and whatever else that circuit covers). Interestingly, the district court case makes a point that the defendants were all sophisticated computer programmers rather than regular-joe consumers. Which is no defense for Jason, who’s already made a permanent record showing that he actually reads EULAs, but might help people like me (note to potential plaintiffs: I never read EULAs). And, as SlyFrog points out, the case is only about one specific type of violation (reverse-engineering) and there’s no telling how courts would come out on the stuff Jason is complaining about (reselling, etc.). I am pretty sure they would come out for the consumer, but it’s not as black and white as it is in other types of contract.
Out of curiosity, what makes you say that?[/quote]
The fact that there is a decent amount of case law stating that shrink-wrap and click-wrap EULAs are enforceable. Therefore, when I see people say things like, “These EULAs aren’t enforceable,” or “I didn’t sign or agree to this, so it can’t be enforced against me,” I tend to take it with a legal grain of salt.
Everyone wants to be an amateur lawyer. :)[/quote]
When we all know that professional lawyers will never say anything definite, you can weed out the blatherers by their confidence in their statements. The answer is, of course, “it depends.” And you won’t get the answer without lots and lots of expensive litigation. That’s why overreaching happens, nobody wants to be the test case.
