Sielle: The point I was trying to raise is strictly from a legal sense in some areas EULA's can be binding.
I won't contest this, as it's easily observable to be true. The key thing to realize as part of this, though, is that EULA's are like pretty much any other kind of contract in that they aren't worth the paper they're written on in a legal sense until a court upholds them. But this takes us to a key point with contracts, in that if when you're offering a contract if considering how enforceable that contract will be in court is a concern to you because you consider it very likely that contract will be broken, then you're already doing things horribly wrong. Contracts are mere formalizations of agreements between people, and when being used appropriately both parties should be getting something out of the contract, and thus both entering the contract in good faith with the full intention of abiding by it. Courts should only come into the matter if one individual then fails to uphold their end of the contract after the fact, and at that point things typically get quite messy as it's lose-lose for everyone involved. The problem in recent times is parties using a vastly superior bargaining position or underhanded tactics to foist contracts on others where the other party gets pretty much nothing out of the agreement (or isn't even aware they've entering into an agreement), and thus has pretty much no motivation to abide by the contract outside of potentially being threatened by legal action. In such situations the instigating party is basically acting in bad faith from the very beginning, and thus it should be little surprise when such contracts end up in court, and even less of a surprise when judges often rule them invalid (although like pretty much all contract disputes it's basically a coin toss).
An interesting thing, though, is that large companies that instigate bad faith contracts actually don't want to end up in court in most situations. Rather, their preferred route is just to keep sending legal-looking nasty-grams (e.g. C&D's and DMCA notices) until the other party gets scared and backs off. It's typically only when the other party says "put up or shut up" that a suit may be filed. The Vernor v. Autodesk case was a rather interesting example of this, as it begun with Autodesk sending a DMCA notice to shut down Vernor's EBay auction of AutoCAD. Vernor filed a DMCA counter-notice (which basically says "I'm not violating your copyright. Here's my contact info, sue me or STFU.") which should have put the matter in court if Autodesk was serious, but rather they then (fraudulently) just kept sending DMCA notices to shut down Vernor's auctions until eventually
he and to sue
them.
So to actually try to distill a point out of my rambling and storytelling, when you say that EULA's
can be held to be legally binding you're correct, but despite this that statement is basically meaningless without considering a larger view of the entire system and what the implications of the legal trivia actually are in practice.
Sielle: Now you're right that none of this has anything to do with what a user is physically able to do if the software doesn't require online activation of any kind, but I had the understanding that we were talking about just the legal issues and standing?
The funny thing with US laws is that there are so many vague and overly broad laws that just about anything we do could be considering illegal if we restrict ourselves purely to the realm of strict theory. There was a recent
WSJ article where an author estimates that the average American unwittingly commits 3 felonies a day due to vague laws, many covering technological considerations. With the system in such a state if you were to live your life based on avoiding what could be strictly considered illegal you'd never even be able to leave your house. Thus in practice when addressing the question of "is this legal" one must consider not only legislation and case law, but the realities of what the law ends up being in practice due to enforcement. With respect to the "owned or licensed" argument one can spend plenty of time of time looking through the legislation (which basically says "owned"), through the case law (which basically says "the system is a clusterfuck and sneezing on the CD might get you sued"), but ultimately what's most instructive is looking at what's actually happening in practice. Consider what it classically means to own something, then compare those to what you can readily do with various software offerings in practice. To take a single example resale is something that often comes up in the "licensed vs sold" discussion. For, say, a game acquired through D2D resale is a non-trivial exercise, a listing of the game will be pulled pretty quickly from major resale outfits (such as EBay), and is quite likely to get your access to the game through D2D cut off if you persist in your efforts. For, say, a no-strings-attached retail game.. well, a quick look through the listing on EBay, Amazon, and Craigslist quickly answers that question. And being the major outfits these are, they'd be an easy target for the likes of the ESA if they actually believed the position that games couldn't be resold because they're not actually sold to begin with to be a serious position with any kind of basis in reality. It's basically a case of recognizing a group's true beliefs based on their actions and not simply their rhetoric.
Sielle: I think that's what people were trying to get at before, is that that legal standing and enforceability are two VERY different things.
They're only two different things if one believes that a consideration of legal theory divorced from practical considerations has any use outside of an (ultimately useless) intellectual exercise. It's also important to recognize that both the law as written and the law as enforced only has meaning as long as the populace is willing to buy into and consent to the current system of legal rule. You have the laws as written, you have enforceability, and you have what the general populace considers reasonable; the laws as written are only a pointless intellectual exercise until you take into consideration the practicalities of enforcement, and on top of this if these two things together stray too far from what the public considers reasonable then things can start getting
really ugly. But I'm probably rambling again, not to mention getting into the kind of topics that will cause people to start slowly backing away from me, so I'll stop here for now.
