Rather than just trying to tame EULAs, as I'm doing with my FEULA project, some readers argue we should just get rid of them altogether. While not lacking in sympathy for that idea, I've always wondered how you could invalidate the bad EULAs without also invalidating good license agreements such as the free software GPL. One reader argues persuasively that it could be done, so I thought I'd share some of his comments with you.
"I am not exactly sure why we need a license to say that vendors and end users retain exactly the rights they already have under copyright law," the reader wrote in response to the beta FEULA. "One of the most fundamental problems with EULAs is the presumption that they are needed. This approach also completely avoids the messy problems regarding whether shrinkwrap licenses are even legal. Copyrights have worked for most other publishers for centuries. Sure, they have problems, but the only thing that really distinguishes software is the ease with which it can be copied. Oops, so can e-books, music, and increasingly DVD's. And all that EULAs have done is persuade the traditional publishing industry that they now need one too."
The reader, a big Open Source fan, argues that the GPL works in a fundamentally different way than EULAs that take away rights. "The GPL provides the user with rights significantly beyond those of copyright," he wrote. "I do not believe the GPL in any way takes away a right you would have otherwise. But it grants some very broad rights beyond those of copyright in return for agreeing to some limited restrictions on those new rights."
EULAs on the other hand are based on the very disputable premise that they are real contracts. "A EULA aspires to be a contract -- if it is not a contract, then it is meaningless," the reader wrote. "For a contract to exist there has to be an offer and acceptance, a meeting of minds. These are ancient legal concepts. For software sold at retail a contract was completed at the time of purchase. The shrinkwrap license agreement is an attempt to modify that contract AFTER the fact, something that is possible but not trivial. To modify the original agreement -- which basically is you have bought my software for money and have the right to do whatsoever you please with it constrained only by copyright law -- there has to be a new offer that has to offer something of value you do not already have. Otherwise, you do not have a new contract."
EULAs are just one part of the much larger problem of an intellectual property system that no longer serves the public interest. "The U.S. Constitution makes it absolutely clear that patents and copyrights are there to serve the public interests, that the interests of the patent and copyright holders are NOT significant," the reader wrote. "Any intelligent assessment of intellectual property rights reveals they are at best a necessary evil. As much as those of us who create patentable or copyrightable works wish to claim them as our own, they are not. Patents are legally supposed to be about implementations, and copyrights expressions, but ideas cannot be owned. It may appear to be stealing for one person or company to copy the idea of another. But whoever came up with it in the first place did not create the idea. It was always there."
"Technology is making it crystal clear that the distinction that we made in the past between ideas, and their expression or implementation, is fictitious," the reader continued. "Computer programs come incredibly close to the pure mathematical expression of ideas. But our desire to reward those who worked to produce them has blinded us to the fact that we are selling the laws of mathematics, nature or God to the first person wise enough to try and patent or copyright them. The patent system , for all its rife evils, eventually expires. Most of the stupid patents granted today will expire before I die -- absent another stupid extension into infinity like the last Copyright act."
Ultimately, the reader believes that the marketplace will do the job of getting rid of EULAs for us. "Of course, why am I arguing for the elimination of EULAs -- the more egregious the EULA, the greater the interest in Open Source. In the end I believe in Adam Smith's invisible hand. To paraphrase: treat customers like crap, even with the permission of the law, and they will find another solution."
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12:21:33 AM 
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