Please join me in condemning such companies (No matter what the EULA says).

I personally dont believe an EULA should restrict the users rights to remove any given application.

A Tip:

As a Marketer you should obey the law yes but dont get overconcerned with it. Pay attention to what the market wants first and foremost. And that my friend is not unusable PCs, unsolicited popups, or things that are basically trojan and require a format to uninstall.

“if your software misbehaves ill uninstall it.”

The “life” of the “EULA” only persists as long as the user does not “uninstall”.

When you stelath install or your installer purposely does not work.. you deserve to be in jail. Other “hackers” go to jail. All that misbehaviour INVALIDATES any “EULA” rubbish especially when you broke the EULA with an ineffective installer or when your software renders a computer USELESS.

Most people are not computer literate enough to undrstand the technical aspects of often vaguly worded and longwinded “EULA”s. They simply click “ok” which is why people like me spend so much time cleaning non-tech friends computers when they realise they installed “something they shouldnt”.

You are the architecture of your own demise by drawing the wrath of the technical and legal profession.

“ad supported application” where the app supplies something useful is the only form of “ads” people are prepared to suffer. And no they will probably never click them. The uninstaller HAS to work too. No invasion of the OS or IE or exploits. No stelath installs. Only then can you legitimately call it “advertising”.

Would you agree?

Or do you like the “hijack” experiance?

Therefore, I believe that the example you give in your last comment would be fully enforceable under US law. On the facts you give, I don’t think it’s a particularly close question.

—-End of quote——

That’s the problem in my eyes. Either the referred to clauses in that example are unenforceable, in which case the law is up in the air and it’s uncertain what is ‘reasonable’ for someone to have read in a EULA, or they are enforceable, in which case the common law of online contracting is completely out of touch with reality. In either case I see reform as essential.

Here’s the Tilden citation:

Tilden Rent-A-Car Co. v. Clendenning (1978), 83 DLR (3d) 400, 18 OR (2d) 601 (Ont. CA)

Basically it says if terms are onerous and not apparent, with regard to the context in which the contract is signed, they may be void.

We have some similar doctrines for certain types of provisions (such as some warranty disclaimers or limits of liability under UCC Article 2 or under the Magnuson-Moss Act), but I don’t think vendors have a general duty to call attention to important clauses in US contracts. Instead, such concerns would be addressed under an unconscionability doctrine, but the standards for unconscionability are relatively high.

Therefore, I believe that the example you give in your last comment would be fully enforceable under US law. On the facts you give, I don’t think it’s a particularly close question.

(As an aside, interesting you should mention Tilden Rent-a-car. I had a horrible experience with them when my rental car broke down in Kitwanga, British Columbia. So let’s not get started on how I feel about Tilden!)

* user manifestation of assent is required for contract formation

* a click “yes” can constitute that manifestation of assent

* if the user clicks “yes,” they are bound to all of the terms that they could have reasonably been expected to read–not just the terms they actually read.

From my perspective, these known propositions cover virtually all of the software downloads that might constitute spyware or adware. Yes, software is bundled together. Yes, the agreements might be lengthy. Yes, no one expects the users to read these lengthy documents. Yes, the contract may not be crystal-clear about every feature/attribute users might be interested in. NONE of this affects the validity of the contract.

I’ve aggregated online contract formation cases at http://eric_goldman.tripod.com/resources/onlinecontractcases.htm. You might take a look. While I don’t think any of those cases involved spyware labeled as such, I do think a number of the AOL and RealNetworks cases involve identical issues that would be raised in a spyware case. (Consider, specifically, a case like In re. RealNetworks Privacy Litigation, 2000 U.S. Dist. LEXIS 6584 (N.D. Ill. May 8, 2000)). So I think we have precedent in this area, and most importantly, I don’t think spyware raises any new issues about online contract formation from the existing precedents.

The non-contract claims, like unfair business practices, are different. I would agree with you that the boundaries of activities that qualify for these claims IS unclear. This is one of the open issues from the NY v. Intermix case.

Sorry for the bit of a rant above. I think that the major uncertainty in EULA rules is that current case law indicates that only some sort of ‘action’ like clicking an ‘I agree’ button is enough to assent to every term in the EULA (Specht v. Netscape.) Then Caspi v. Microsoft indicates that there’s no such thing as fine print in EULAs. Other cases have demonstrated that terms can even be included by reference – including a clause that says ‘Check the website from time to time for updated terms’ may hold users to those terms (Kanitz v. Rogers – Ontario CA.)

Spyware vendors know that users don’t read EULAs, and the law above essentially gives them a license to include any disclosures they want in long, complex contracts. Then they can claim that they abided by existing law and received consent.

As far as your average piece of software, I’m fine with the current rules, but when software performs certain potentially shady functions I think we need more specific rules of disclosure. These potentially shady functions include things like running on startup without asking the user, causing pop-ups to appear, sending personal information to home servers without asking first, or lacking an uninstall function.

Probably 95% or more of the software out there will either not perform these functions or ask the user before executing them, so there is no problem with them – it’s when a EULA has a bundled software clause buried in 40 pages of text that I think the law is insufficient. These guys are obviously trying to scam people.

I may be paraphrasing some of the details above – I’d be interested to hear your thoughts. Can you email me your response?

Dan

However, many people (including, I suspect, you) don’t like the existing law and believe the rules should read differently. This is where the obfuscation takes place–many critics make up rules that are not consistent with the existing rules and then fault software vendors for failing to meet these made-up rules.

Perhaps I am missing your point. Could you clarify how you think the disclosure/consent rules are vague and uncertain?

Eric.