Packaging EULA's

[Adam Smith]

Hello,

Many program & sites package their EULA's in neat dialog boxes, w/ I
Agree, Do Not Agree Radio buttons. Could someone say how this is done?

Thanks

--Adam--

 

[Jukka K. Korpela]

Many program & sites package their EULA's in neat dialog boxes, w/ I
Agree, Do Not Agree Radio buttons. Could someone say how this is done?

There's nothing neat in such dialog boxes. They exist just to please lawyers
that imagine that the dialogs have a legal meaning and work with such issues
since they cannot find neither a more profitable nor a more decent job.

If you want to know how to piss off your visitors with such boxes on web
pages, just look at the source code. You may need to ask the nearest kid for
help in dealing with the way that the page may seem to have "hidden its
source".

 

[Harlan Messinger]

There's nothing neat in such dialog boxes. They exist just to please
lawyers that imagine that the dialogs have a legal meaning and work with
such issues since they cannot find neither a more profitable nor a more
decent job.

What makes you think they don't have a legal meaning, and why do you
seem so disdainful about people placing conditions on the use of their
property?

If you want to know how to piss off your visitors with such boxes on web
pages, just look at the source code.

Do you get pissed off that a landlord wants you to agree to some
conditions before allowing you to live in a house he owns?

 

[Adam Smith]

What makes you think they don't have a legal meaning, and why do you
seem so disdainful about people placing conditions on the use of their
property?


Do you get pissed off that a landlord wants you to agree to some
conditions before allowing you to live in a house he owns?

Well, I regarded that as coming from an immature, naive source. I am
surprised that I haven't received any directions to the question though,
or ahve I posted to the wrong forum (It so hard to tell).

 

[Jonathan N. Little]

Well, I regarded that as coming from an immature, naive source. I am
surprised that I haven't received any directions to the question though,
or ahve I posted to the wrong forum (It so hard to tell).

Maybe if you elaborate on your application of this EULA you may receive
more specific advice.

How an application does it and a web site differers greatly. An
application is compiled and interacts with the OS's API directly to
create a dialog box. With a website you would need essentially a login
form and you EULA page would log the user on to protected pages.

 

[Jukka K. Korpela]

Well, I regarded that as coming from an immature, naive source.

The EULA stuff you mean? Quite probable. (It's hard to tell what someone is
referring to with a pronoun "that" in some text that follows a lengthy
quotation.)

I am
surprised that I haven't received any directions to the question
though, or ahve I posted to the wrong forum (It so hard to tell).

Then you apparently didn't read my response or you failed to understand it.
Your question hardly has much to do with HTML, and I actually gave you
directions to the _question_ indeed.

ObHTML: If you want to see _huge_ amounts of keyword spamming, view
http://www.econ.com
on a text browser or view its source.

 

[Andy Mabbett]

What makes you think they don't have a legal meaning

Rather than asking Jukka to prove a negative, why don't you tell us what
makes you think that they do?

 

[Nick Kew]

Hello,

Many program & sites package their EULA's in neat dialog boxes,

where they are utterly unreadable. I always delete it and
substitute "I can't read this in a ridiculous little text box",
or words to that effect, before agreeing.

w/ I
Agree, Do Not Agree Radio buttons. Could someone say how this is done?

<textarea>

 

[Michael Winter]

In message <[email protected]>, Harlan Messinger
[snip]

What makes you think [click-through agreements] don't have a legal
meaning

Rather than asking Jukka to prove a negative, why don't you tell us
what makes you think that they do?

I remember this coming up a while back and, out of curiosity, I
Googled[1]. The first result[2], and the one I remember the most,
suggests that the binding nature of user agreements varies based on
jurisdiction (not surprising, really), and is subject to certain
constraints.

Mike (not a lawyer!)


[1] <http://www.google.co.uk/search?q=click-through+agreements+legality>
[2] <http://www.andrewpatrick.ca/jitcta/jitcta.html>

 

[Harlan Messinger]

Rather than asking Jukka to prove a negative, why don't you tell us what
makes you think that they do?

A click-through agreement possesses all the elements that, in the US at
least, constitute a valid contract, and to anyone familiar with
contracts this much is obvious. If you're interested, see

http://www.lectlaw.com/def/c123.htm

and in particular the part about parol contracts.

It's Jukka making the claim that something that is obviously a contract
isn't legally binding. Of course, the whole matter is muddied because
Jukka may be talking about Finland or the EU, and I don't know the law
there.

 

[Harlan Messinger]

A click-through agreement possesses all the elements that, in the US at
least, constitute a valid contract, and to anyone familiar with
contracts this much is obvious. If you're interested, see

http://www.lectlaw.com/def/c123.htm

and in particular the part about parol contracts.

US contract law comes from British contract law, so I'm guessing the
fundamentals might still be similar in the UK even after 230 years.

 

[Stephen Poley]

A click-through agreement possesses all the elements that, in the US at
least, constitute a valid contract, and to anyone familiar with
contracts this much is obvious. ....
Of course, the whole matter is muddied because
Jukka may be talking about Finland or the EU, and I don't know the law
there.

I went to a seminar on the law relating to software in the Netherlands a
few years ago. The speaker on this matter said it had not been tested
before the courts, and it was uncertain whether a click-through
agreement would stand up in the Netherlands. Apparently legal opinion
was divided but he was inclined to think it would not.

He further added that at least some clauses of some click-through
contracts he had seen would definitely not stand up in the Netherlands.

I don't know whether things have changed since.

 

[Jukka K. Korpela]

I went to a seminar on the law relating to software in the
Netherlands a few years ago. The speaker on this matter said it had
not been tested before the courts, and it was uncertain whether a
click-through agreement would stand up in the Netherlands.

Hardly anyone _wants_ to test it in a court. There would be a lot of
expenses to lose and little if anything to win. But this still isn't an HTML
issue.

Well, I do have an ObHTML here:

Given any normal www form or link that is claimed to constitute a contract
when clicked on, based on stuff on the page where it resides, one can
construct a link that leads to the same page and does not involve any kind
of reference to any commitment or contract. (If the form uses POST method,
you need either a little bit of JavaScript or a simple server-side piece of
software.) So how could you prove that the user who enters the page has
actually even seen your "click-through agreement"? Right, you don't.

 

[Toby Inkster]

A click-through agreement possesses all the elements that, in the US at
least, constitute a valid contract, and to anyone familiar with
contracts this much is obvious.

But if it's not delivered through HTTPS, then it could be tampered with
en-route to the visitor, so you can never quite be sure whether it was
*your* contract they agreed to, or some man-in-the-middle's contract.

And speaking of tampering with HTTP en-route:
http://www.ex-parrot.com/~pete/upside-down-ternet.html

 

[Andy Mabbett]

A click-through agreement possesses all the elements that, in the US at
least, constitute a valid contract, and to anyone familiar with
contracts this much is obvious.

Claiming "this much is obvious" is hardly a strong argument; not least
because it's far from obvious.

 

[Harlan Messinger]

Hardly anyone _wants_ to test it in a court. There would be a lot of
expenses to lose and little if anything to win. But this still isn't an
HTML issue.

Well, I do have an ObHTML here:

Given any normal www form or link that is claimed to constitute a
contract when clicked on, based on stuff on the page where it resides,
one can construct a link that leads to the same page and does not
involve any kind of reference to any commitment or contract. (If the
form uses POST method, you need either a little bit of JavaScript or a
simple server-side piece of software.) So how could you prove that the
user who enters the page has actually even seen your "click-through
agreement"? Right, you don't.

With a contract printed on paper, you also can't prove that the person
who signs it has read it, even if his signature is under a printed
statement reading, "I affirm that I have read this contract." So? The
contract is still binding.

If someone encountering a EULA chooses to engineer a hack to get around
reading it, what would lead you to expect a judge to give him any more
sympathy than would be given to a person who signed a hard-copy contract
and then later claimed not to be bound by it because he hadn't read it?

 

[Harlan Messinger]

But if it's not delivered through HTTPS, then it could be tampered with
en-route to the visitor, so you can never quite be sure whether it was
*your* contract they agreed to, or some man-in-the-middle's contract.

I suspect an assertion that tampering had occurred would be required,
along with evidence that it had happened. I wouldn't think it would be
the starting assumption. After all, printed contracts can be tampered
with, and, in the US at least, even oral contracts can often be
enforced. A business issuing a EULA has a better chance of proving that
it presented that EULA to the user, and of proving what the EULA said,
than someone bringing an oral contract into court.

 

[Harlan Messinger]

Claiming "this much is obvious" is hardly a strong argument; not least
because it's far from obvious.

If you know what constitutes a contract in the first place, yes, it is
obvious, just as obvious as it is to anyone looking at me that I have
two eyes, a nose, and a mouth. You don't have perform a complex analysis
of a EULA to find the elements of a contract--they're right there.

 

[Jukka K. Korpela]

With a contract printed on paper, you also can't prove that the person
who signs it has read it,

There's no need for proving that, and this has nothing to do with the
discussion at hand, still less HTML.

If someone encountering a EULA chooses to engineer a hack to get
around reading it,

then someone else can quite innocently follow a link and arrive at a page
without seeing any reference to any contract, as I wrote.

 

[Harlan Messinger]

There's no need for proving that,

Right, so in the analogous web-based situation, someone running a web
site ought not to have the initial burden of proving that the user read
the EULA.

and this has nothing to do with the
discussion at hand, still less HTML.

How does an analogy relating to whether a person read or didn't read a
contract not have anything to do with a discussion on whether a person
did or didn't read a contract?

then someone else can quite innocently follow a link and arrive at a
page without seeing any reference to any contract, as I wrote.

And the company's web logs will show the the EULA was never requested by
the user. (It seems to me a hack is easily prevented, by inserting a
random string into a hidden INPUT tag [ObHTML] and expecting to receive
that same string from the same IP to which it was sent and/or from
within the same user session.)

Anyway, as with any contract, the answer to the question of whether a
EULA would be binding if a person did agree to it doesn't rely on the
fact that it certainly wouldn't be binding if it had never been
presented to the person.