In the comments posted on my website, you will often see two very contradictory positions taken by readers who seem absolutely certain they are correct. Some say that end user license agreements, no matter how onerous or one-sided their terms, are completely binding legal contracts. Others say that sneakwrap terms that you don't get to see until after the purchase have no legal standing whatsoever. So which side has it right?
"I would suggest everyone here stop posting their opinions and suppositions about what they think the law is or should be and take a look at the actual U. S. copyright law," one reader wrote recently. "Copyright owners automatically have exclusive rights to their own works. Whatever rights they decide to exchange for money is their choice. This is often indicated in the "EULA" when it comes to software. Some give away all rights to copy and distribute and others choose to sell the right to make a single copy, or two copies, or the right to use without restriction on a single server, etc. -- whatever they want. Even most open source software has complex and precise licensing restrictions. Ever read through the GPL? Bottom line: it's the author's choice and it's protected by law. Get over it. If you don't like what the author is willing to exchange for your money, return it and find something that better suits your fancy. But, please, quit crying about evil musicians/programmers/companies that don't roll over and give away their legally protected intellectual property. Geesh."
Well, if true, that would settle things, but some who have actually looked at U.S. copyright law might say this post also contains some questionable opinions about how the law works. Doctrines of copyright law like Fair Use and First Sale actually put considerable limits on what rights a copyright owner can choose to withhold. And the U.S. Copyright Act says virtually nothing about license agreements one way or the other, as that's a matter for state contract law.
Those who believe that EULAs aren't enforceable argue that contract law has always demanded there be some mutual meeting of the minds rather than one side forcing the other. "Many hundreds of years of established contract law state that you CANNOT be held to 'agreements' you were not fully aware of in advance," another reader wrote recently. "This is a very basic and essential ingredient in any contract. Legally, anything else is not a binding contract. Therefore EULAs carry absolutely no weight of law and are legally unenforceable. Even if EULAs were otherwise legally binding, they would constitute a 'contract of adhesion' that is unilateral and non-negotiable ... Courts have also regularly upheld the concept that any contract that cannot be negotiated in advance is not a real contract. Rather, it more closely resembles an attempt at coercion. Contracts of Adhesion are routinely thrown out of court, with prejudice."
As much as I applaud such sentiments, they unfortunately no longer reflect how all our courts interpret contract law. While some judges still throw out obviously unfair or unconscionable terms, recent years have seen a number of courts -- those involved in the Blizzard case, for example -- that have embraced contracts of adhesion with open arms. Fair use rights explicitly granted by copyright law are, at least in some jurisdictions, blown away by one "I Agree" click.
But when federal copyright law and state contract law are in conflict, isn't federal law supposed to win? "License terms that preclude the right to transfer use of copyrighted works to other machines, other people, or other business entities clearly violate the fair use rights provided by copyright law," wrote another reader. "The owners of the copyright are basically saying 'we choose to fully exert our rights under copyright law' while at the same time saying 'we do not recognize yours.' Therefore, although obviously not tested in the courts, how could the owners of the copyrighted works expect us to honor their basic copyright rights when they do not honor ours? Early in the childhood of rented movies on VHS tape the movie industry sued public and private entities who lent or rented original movies to their customers or patrons citing that use rights to the work were "non transferable", and they lost. Why hasn't this legal concept been applied to software licenses?"
So which side is right? Well, we could be generous and say they both are, but it's probably far more accurate to say they are both completely wrong. The one thing that is absolutely and undeniably true is that, more than a decade into the age of the Internet, our legislatures and our courts have totally failed to resolve the very basic questions technology has raised about our traditional rights. And perhaps we could also agree on who is to blame for this sad state of affairs: you and me.
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