EULAs again 2

[lionelhill]

I have in front of me a disk with CD-writer software on it from a well-known manufacturer. Through the plastic pocket I can see a licence agreement (well, half a licence agreement. Someone alont the vendor chain has stuck a bar-code label over the other half, but with a strong light and some imagination I can read through it).

The agreement has the usual "by opening... or using the Software that has been preloaded ..in your computer, you agree to be bound by the terms..." line.

But when I start the software preloaded on my computer I get a totally different agreement, including the following:

"This agreement grants you ("licensee&quot a license to:

(a) use the software on a single computer system, which is not intended for use by more than five (5) users;"

Now this seems a bit heavy: the way it's written sounds like not only do they want to limit the number of people using their software (reasonable), but they actually want to limit the number of people using my computer, even if none of those users are granted access to the folder holding the software to which this EULA applies.
As a result I'm having to pay up to buy a different bit of software so I can use the machine for the purpose it was originally purchased.

I am not very happy with this:
(1) the EULA you can see through the celophane isn't the one that's embedded in the programme, so it seems unfair to tell someone they've accepted it by the act of removing the celophane.
(2) What right does a software manufacturer have to dictate the use of hardware and software that they did not produce? When that software is sitting on a hard disk and not being executed, it isn't very much different to a diskette sitting on a bookshelf - it could be executed, but it is currently just being stored. Yet no one can tell me that because I have a diskette from some company on my bookshelf I am not allowed to let more than 5 people read a book that is also sitting on the same shelf, can they?
In the same way as I can safeguard the diskette by locking it in a box, I can safeguard the software by granting access to its folder only to certain individuals. And I keep my password as safe as I'd keep the physical key to the diskette box, so the analogy holds good. Surely this EULA is a little unreasonable?
(3) Of course no system vendor is going to get caught up in silly little things like this, and no user is going to kick up a massive stink about such a small amount of cash. But multiplied by the number of people who must be using this software, either a lot of people are being cheated, or a lot of people are simply ignoring the EULA. In which case why bother having it?

 

[xutopia]

could you send me the complete EULA by email (follow my web site address) as well as the name of the company? Gary

http://www.xutopia.com

Haran

 

[KimberTech]

Gary, if you get it could you please forward it to me?
I am curious as well.
If so I will contact you at the address you have posted if that is ok.
Kimber

The more I learn,I realize how much more there is to know!

 

[xutopia]

lionel,

I still haven't received the email. Maybe you can post it here. Gary

http://www.xutopia.com

Haran

 

[flyboytim]

This exact wording is on the Roxio Easy CD Creator licence, among others including some Adaptec. Is there a law against plagiarising phrases in other manufacturers EULAs? ;-)

 

[chiph]

Is there a law against plagiarising phrases in other manufacturers EULAs?
I think they have all bought copies of EULA-Maker 2.1
:-D

Chip H.

 

[dilettante]

chiph, I think Broderbund has it on sale on their web site at 75% off this month. But only one person can create EULAs with it for up to 5 software products - then you have to buy another license. ;-)

 

[lionelhill]

Xutopia, I visited your site, but couldn't persuade the mail-to link to work (I suspect my browser isn't up to date). But actually flyboytim has identified the source very accurately!

Incidentally, I'll have to retype the wretched thing to send it to you since it doesn't have a print or edit-copy facility. It's just plain text, accept or reject. If I'm really unlucky Roxio or someone will probably do me for illegally copying their copyright statement (or muddying their name).

I'm utterly certain Roxio must have got in a tangle with their grammar about this and I'm mistaking their intention, but legal wording is supposed to be totally unambiguous... well, that's what I thought as a non-lawyer.

I found it particularly ironic that this copyright protection text appears on a product that is probably used by 90% of its purchasers to make illegal copies of other people's music and images. But that's not adaptec or Roxio's fault, I suppose.

Good job there's also Nero.

 

[mattKnight]

>but legal wording is supposed to be totally unambiguous...
[cynicism]
I thought that was how lawyers made their money making the unambiguous ambiguous...
[/cynicism] Take Care

Matt
If at first you don't succeed, skydiving is not for you.

 

[flyboytim]

If you use Google with the phrase "use the software on a single computer system, which is not intended for use by more than five (5) users" including the quotes, Google says it will ignore anything but the first 10 words. But it still brings up a lot of EULAs! Strangely the Roxio page is not there now!! It was there last week, honestly!

 

[CajunCenturion]

Given the following statement by lionelhill --> Xutopia, I visited your site, but couldn't persuade the mail-to link to work (I suspect my browser isn't up to date).

Is that lionelhill's problem for not having an up to date browser, or is it Xutopia's problem for not supporting an older browser?

In either event, the transaction failed, and who suffers because of it? Good Luck
--------------
As a circle of light increases so does the circumference of darkness around it. - Albert Einstein

 

[xutopia]

Lionel,

What browser are you using?

Cajun,

It could be that my site's public is the higher end browsers! I do web applications which is not possible without recent browsers that support web standards. Gary

http://www.xutopia.com

Haran

 

[flyboytim]

The Roxio licence is as follows:
The link was from a Google search HTML version of a PDF file. Hunted down in my browser cache!

This is the html version of the file

http://www.xaz.cz/install/soft/CDRW Soft/ecdc51/HELP_PDF/ENU/QUICKREF.PDF.

G o o g l e automatically generates html versions of documents as we crawl the web.
To link to or bookmark this page, use the following url:

http://www.google.com/search?q=cach...see")+a+license+to:&hl=en&lr=lang_en&ie=UTF-8

Google is not affiliated with the authors of this page nor responsible for its content.

Roxio, Inc., OEM Version End User License Agreement
PLEASE READ CAREFULLY
: THE USE OF THIS SOFTWARE IS SUBJECT TO THE
SOFTWARE LICENSE TERMS OF ROXIO, INC. AND OTHER LICENSORS WHOSE
SOFTWARE MAY BE BUNDLED WITH THIS PRODUCT.BY YOUR USE OF THE
SOFTWARE INCLUDED WITH THIS PRODUCT YOU AGREE TO THE LICENSE
TERMS REQUIRED BY THE LICENSOR OF THAT SOFTWARE, AS SET FORTH
BELOW. IF YOU DO NOT AGREE TO THE LICENSE TERMS APPLICABLE TO THE
SOFTWARE, YOU MAY RETURN THE ENTIRE UNUSED PRODUCT TO THE
SOURCE FROM WHICH YOU OBTAINED IT.
Roxio Software License Agreement
(Single User, Non-Networked Applications)
In return for acquiring a license to use the Roxio software, which may include
software from third party licensors and patches made available by Roxio ("Software&quot,
and the related documentation, you agree to the following terms and conditions:
1. License. This Agreement grants you ("Licensee&quot a license to:
a. use the Software on a single computer system, which is not intended for
use by more than five (5) users; and
b. make one copy of the Software in machine readable form solely for back-up
purposes, provided you reproduce Roxio's copyright proprietary legends.
Notwithstanding the foregoing, the Software may be used on the home,
laptop or other secondary computer of the principal user of the Software,
and an additional copy of the Software may be made to support such use.
As used in this license, the Software is "in use" when it is either loaded into
RAM or installed on a hard disk or other permanent memory device. The
Software may be "in use" on only one computer at any given time.
(Different license terms and fees are applicable for networked or multiple
user applications.) As a specific condition of this license, you agree to use
the Software in compliance with all applicable laws, including copyright
laws, and that you will not copy, transmit, perform or distribute any audio
or other content using the Software without obtaining all necessary licenses
or permissions from the owner of the content.
2. Restrictions. You may not distribute copies of the Software to others or electronically
transfer the Software from one computer to another over a network. You are not
authorized to use any licensed codecs in the Software or the Software itself in real
time broadcasting (terrestrial, satellite, cable or other media) or broadcasting via the
Internet or other networks such as, but not limited to, intranets, etc. or in pay-audio
or audio-on-demand applications. An independent license for any such use is
required. For details on MP3 licensing, please visit

http://www.mp3licensing.com.

You may not post or otherwise make available the Software, or any portion thereof,
in any form, on the Internet. You may not use the Software in a computer service
business, including in time sharing applications. The Software contains trade secrets
and, in order to protect them, you may not decompile, reverse engineer, disassemble,
or otherwise reduce the Software to a human-perceivable form. Content providers
are using the digital rights management technology ("DRM&quot contained in this
Software to protect the integrity of their content ("Secure Content&quot so that their
intellectual property, including copyright, in such content is not misappropriated.
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Owners of such Secure Content ("Secure Content Owners&quot may, from time to time,
request Roxio or its suppliers to provide security related updates to the DRM
components of the Software ("Security Updates&quot that may affect your ability to
copy, display and/or play Secure Content through the Software or other applications
that utilize the Software.
You therefore agree that, if you elect to download a
license from the Internet which enables your use of Secure Content, Roxio or its
suppliers may, in conjunction with such license, also download onto your
computer such Security Updates that a Secure Content Owner has requested that
Roxio or its suppliers distribute.
Roxio and its suppliers will not retrieve any
personally identifiable information, or any other information, from your computer
by downloading such Security Updates. YOU MAY NOT MODIFY, ADAPT,
TRANSLATE, RENT, LEASE, LOAN, RESELL FOR PROFIT, DISTRIBUTE,
NETWORK OR CREATE DERIVATIVE WORKS BASED UPON THE SOFTWARE
OR ANY PART THEREOF.
3. Ownership of Software. As Licensee, you own the media upon which the
software is recorded or fixed, but Roxio and its licensors retain title and ownership
of the Software recorded on the original media and all subsequent copies of the
Software, regardless of the form or media in which or on which the original and
other copies may exist. This license is not a sale of the Software or any copy.
4. Confidentiality. You agree to maintain the Software in confidence and that you
will not disclose the Software to any third party without the express written
consent of Roxio. You further agree to take all reasonable precautions to preclude
access of unauthorized persons to the Software.
5. Term. This license is effective until January 1, 2045, unless terminated earlier. You
may terminate the license at any time by destroying the Software (including the
related documentation) together with all copies or modifications in any form.
Roxio will have the right to terminate our license immediately if you fail to
comply with any term or condition of this Agreement. Upon any termination,
including termination by you, you must destroy the Software (including the
related documentation), together with all copies or modifications in any form.
6. Special Terms Applicable to Databases. Where a database is included with the
Software, you acknowledge that it is licensed only in connection with the use of
the Software to perform disc creation, and that the database and all data derived
therefrom must be maintained in confidence in accordance with the provisions of
Section 4. This license does not grant you any rights to distribute or disclose such
database or data.
7. Limited Warranty. Roxio and its Licensors warrants only that the Software will
perform substantially in accordance with the accompanying written
documentation for a period of thirty (30) days from the date of your purchase
receipt. ROXIO AND ITS LICENSORS DO NOT AND CANNOT WARRANT
THE RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE OR
DOCUMENTATION. THE FOREGOING STATES THE SOLE AND EXCLUSIVE
REMEDIES ROXIO AND ITS LICENSORS WILL PROVIDE FOR BREACbH OF
WARRANTY. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, ROXIO
AND ITS LICENSORS MAKE NO WARRANTIES, EXPRESSED OR IMPLIED,
INCLUDING, BUT NOT LIMITED, AS TO NON-INFRINGEMENT OF THIRD
PARTY RIGHTS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
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vi
PURPOSE. Some states do not allow the exclusion of implied warranties or
limitations on how long an implied warranty may last, so the above limitations
may not apply to you. This warranty gives you specific legal rights and you may
also have other rights which vary from state to state.
The entire liability of Roxio and its Licensors, and your exclusive remedy for a
breach of this warranty, shall be: (a) the replacement of any Software not meeting
the above limited warranty which is returned by you; or (b) if Roxio or its
distributor is unable to deliver replacement Software you may terminate this
Agreement by returning the Software and your money will be refunded. If you
have purchased this Software bundled with a computer hardware product, you
must return the Software to the computer hardware manufacturer.
8. Limitation of Liability. IN NO EVENT WILL ROXIO OR ITS LICENSORS BE
LIABLE TO YOU FOR ANY INCIDENTAL, CONSEQUENTIAL OR INDIRECT
DAMAGES, INCLUDING ANY LOST PROFITS, LOST SAVINGS, OR LOSS OF
DATA, EVEN IF ROXIO OR A LICENSOR HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER
PARTY. Some states do not allow the exclusion or limitation of special, incidental,
or consequential damages, so the above limitation or exclusion may not apply to
you.
9. Export. You acknowledge that the laws and regulations of the United States and
other countries may restrict the export and re-export of the Software. You agree
that you will not export or re-export the Software or documentation in any form in
violation of applicable United States and foreign law.
10. Indemnity
.
You agree that Roxio shall have no liability whatsoever for any use you
make of the Software. You shall indemnify and hold harmless Roxio from any
third party claims, damages, liabilities, costs and fees (including reasonable
attorney fees) arising from your use of the Software as well as from your failure to
comply with any term of this Agreement.
11. Government Restricted Rights. The Software is subject to restricted rights as
follows. If the Software is acquired under the terms of a GSA contract: use,
reproduction or disclosure is subject to the restrictions set forth in the applicable
ADP Schedule contract. If the Software is acquired under the terms of a DoD or
civilian agency contract, use, duplication or disclosure by the Government is
subject to the restrictions of this Agreement in accordance with 48 C.F.R. 12.212 of
the Federal Acquisition Regulations and its successors and 49 C.F.R. 227.7202-1 of
the DoD FAR Supplement and its successors
12. General. You acknowledge that you have read this Agreement, understand it, and
that by using the Software you agree to be bound by its terms and conditions. You
further agree that it is the complete and exclusive statement of the agreement
between Roxio and you, and supersedes any proposal or prior agreement, oral or
written, and any other communication between Roxio and you relating to the
subject matter of this Agreement. No additional or any different terms will be
enforceable against Roxio unless Roxio gives its express consent, including an
express waiver of the terms of this Agreement, in writing signed by an officer of
Roxio. You assume full responsibility for the use of the Software and agree to use
the Software legally and responsibly. This Agreement shall be governed by
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vii
California law, except as to copyright matters, which are covered by Federal law.
This Agreement is deemed entered into at Milpitas, California by both parties.
Should any provision of this Agreement be declared unenforceable in any
jurisdiction, then such provision shall be deemed severable from this Agreement
and shall not affect the remainder hereof. All rights in the Software not
specifically granted in this Agreement are reserved by Roxio.
Should you have any questions concerning this Agreement, you may contact Roxio
by writing to:
Roxio, Inc.
Legal Department
461 South Milpitas Boulevard
Milpitas, California 95035.

 

[flyboytim]

Gary, I have mailed you the Roxio EULA. Please pass it on to interested parties.

 

[lionelhill]

Hello Xutopia,
I was using Netscape communicator 4.6. It gives me little buttons for "send a mail", "go home" etc., but the mouse pointer remains firmly pointer-shaped and doesn't do anything if I try to click on them. Looking at the frame source it's pretty obvious it ought to, and yes, I could have read your e-mail off there and sent one manually (sorry I didn't think to do that before).
Maybe I've got something turned off in my browser settings. I looked on a work computer, and they tend to be a little more cautious in their dealings with the outside world than I am at home.
Hope that helps.
I hate the way it's so hard to make a web-site behave the same on everyone's computers, everywhere.
Lionel

Thanks everyone else for digging out information etc.

 

[xutopia]

Lionel,

Lots of things are hard in web design and you are right that it is very hard to guess what users have for browsers. Our best bet is to never use anything that isn't a standard set by the W3C (w3.org).

Gary

http://www.xutopia.com

Haran

 

[manarth]

Hi all -

1. W3C standards -

http://www.nomensa.com

offer advice about accessibility issues...
It's the case in some countries (e.g. UK, Australia) that the law regarding accessibility requires stricter coding than the w3c standards specify - in this case, web sites (or at least those run by big organisations) have to be accessable by people with disabilities (e.g. those who are blind or suffer other visual impairment).
The Australian Olympic Committee was successfully sued for not providing access for visually impaired people on their site!
even using the "alt" tag properly in html goes a long way towards providing accessibility... a fully developed CSS oriented site is a good solution.


2. Licencing -
Imagine, if you will, the program being run on a PC / workstation, which uses X server (a virtual terminal system). This effectively means that hundreds of people could login (remotely) to the PC and use the software simultaneously.
Therefore, multiple use IS a legitimate business concern.
Perhaps they should change it to "no more than 5 users at any one time."


<marc>