Livingsoft sucks? EULAs vs. "First Sale" doctrine

August 26, 2005 10:48 AM

Livingsoft sucks? EULAs vs. "First Sale" doctrine. Ed Foster covers the story of a woman who attempted to sell her legal copy of Livingsoft's Dress Shop 5 Pro sewing-pattern-producing software on eBay, resulting in harrassment from Livingsoft's president towards her and the prospective buyer. The article and resulting discussion about EULAs and software purchases vs. licences is full of interesting perspectives.

If you pay sales tax for a tool, and discover upon opening it that a non-negotiable EULA exists, which prevents you from reselling but does not obligate the manufacturer to the responsibilities of ownership (maintenance, etc.), then who is the owner? Is the EULA valid?
posted by Tubes (20 comments total)

You might want to ask Revgeorge. He dis something similar with iTunes.
posted by klangklangston at 10:58 AM on August 26, 2005

did something...
posted by klangklangston at 10:58 AM on August 26, 2005

I was under the impression, as a non-lawyer, that contracts cannot usurp laws. This is taking away rights so it's along the lines of "I willingly agree to be a slave for John Doe", or more realistically "I agree to be paid $5/hr for this job." You still have laws that apply, I don't believe they have a basis for this but copyright lawyers are evil demons from the depths of hell.
posted by geoff. at 11:13 AM on August 26, 2005

I had something like this happen when I tried to sell my copy of Final Fantasy Online on ebay. No threatening emails but I did get my ebay account suspended for it. After that I turned around and sold it on amazon about 2 days later. So fuck Play Online.
posted by puke & cry at 11:25 AM on August 26, 2005 [1 favorite]

You know, my first instinctual response to geoff.'s comment was that it's not the lawyers, it's the companies that want to do evil things - the lawyers just know how to draft it correctly. But after my own experiences recently with an IP lawyer drafting terms for one of my sites, I'm not so sure. He put all kinds of clauses in there that horrified me - and the worst ones, I demanded he take out. He said they were going in there for my "protection" as a company, but I explained to him that I'm just NOT in business to do evil things, sorry, particularly when it comes to usurping an individual's rights over their own property. So maybe it is the lawyers.

That said, I also think the company's prez should be hung upside down, dipped in honey, and given over to the ants. How do you justify attacking your own customers?
posted by twiki at 11:25 AM on August 26, 2005

A similar thing happened to me when I tried to sell a legitimate copy of Windows NT Workstation 4.0 on eBay a few years ago. Microsoft had eBay shut me down and neither would listen to my complaints that everything was fully legal about my auction. I had no recourse other than suing, which I wasn't prepared to spend the funds on.

So I rebelled in the only way I could think of -- I proclaimed myself entirely free of the EULA... if they're not gonna allow me to exercise the rights I have under it, then I'm not gonna recognize theirs. No more paying for anything Microsoft ever again.

Too bad I'm a Mac owner that doesn't use Office so I don't really have any way of using my new freedom...
posted by BaxterG4 at 11:49 AM on August 26, 2005

LivingsoftNW has a 60 Mb free trial for download, with no registration needed... I bet lots of people, newly interested in the product by all this publicity, will download the whole thing. I know I'm curious.
posted by Triode at 11:50 AM on August 26, 2005

And here's the link to that 60mb file.

Clearly it is necessary that everyone evaluate this software firsthand before we can appropriately comment on this matter.
posted by sfslim at 12:00 PM on August 26, 2005

I reckon most EULAs wouldn't be upheld by a reasonably court.
posted by Pretty_Generic at 12:06 PM on August 26, 2005

How do you justify attacking your own customers?

Because they already have her money and she's made it clear that she doesn't plan to give them more in the future. Corporations know no loyalty, only profit.
posted by nakedcodemonkey at 12:12 PM on August 26, 2005

Which is reason enough to deal with individuals in preference to corporations whenever possible.
posted by sonofsamiam at 12:19 PM on August 26, 2005

Livingsoft has lost way more business from this than they would have from the resale of one copy of their crappy product. They've shown that they don't know how to deal with customers, that they apparently police forums like eBay in an effort to keep their customers in line, and that their product is crappy.
posted by bshort at 12:27 PM on August 26, 2005

In the 5 years or so I've been sbuscribed to Foster's email letter, the only other topic he's covered besides onerous EULAs are the changes software companies are trying to make to the Uniform Commercial Code. I should be numb by now to his steady parade of users burnt by outrageous EULAs but it just seems software companies keep getting away with it.
posted by klarck at 12:34 PM on August 26, 2005

I was talking about this the other day. I buy (for talking sake) Microsoft Office ,take it home unwrap it, and begin installing. Then decide I dont agree with the EULA and cancel out, can I return this product, and where? "Best Buy" sure as hell is not accepting it.
posted by Dr_Octavius at 12:50 PM on August 26, 2005

true, the fact that the EULA shows up after unwrapping (and making a return impossible) should render the EULA null right there, in a saner world. Why isn't it just handed to yas on paper when you buy something?
posted by dabitch at 1:19 PM on August 26, 2005

Has any EULA actually been tried in court? All the cases I've read about online ended out of court because the person in question couldn't afford to deal with a court battle.

dabitch: Becauase they'd spend all their profit margin on paper. Have you actually looked at any of the longer EULA's? Some of 'em go on for twenty pages or so. Also, because it is in the interests of the software companies to keep EULA's as quiet as possible. If Joe User just sees a block of legalease and clicks "I Agree" then he has no idea what he's agreed to, and the company is happy. If Joe User starts reading the thing, and decides its a crock he might not buy their product.
posted by sotonohito at 1:24 PM on August 26, 2005

true, the fact that the EULA shows up after unwrapping (and making a return impossible) should render the EULA null right there

Which fortunately is the case at least in Germany and (I think) a number of other EU countries.

I never understood how a contract can be valid if you have no chance to read or agree to it.
posted by uncle harold at 1:35 PM on August 26, 2005

Although companies still put their EULAs inside the package - obviously there are enough people who are easily enough intimidated.
posted by uncle harold at 1:36 PM on August 26, 2005

The enforceability of an EULA depends on your jurisdiction (in the US). A key part being whether your stat passed the Uniform Computer Information Transactions Act, which I recall would make EULA enforceable (so far Virginia and Maryland are the only ones to have passed it, and apparently the effort has stalled).
posted by MikeKD at 2:21 PM on August 26, 2005

"I proclaimed myself entirely free of the EULA... if they're not gonna allow me to exercise the rights I have under it, then I'm not gonna recognize theirs. No more paying for anything Microsoft ever again."

I did the same thing after they refused to pay me my $90 rebate on Windows 2000. Though only for Windows 2000.
posted by The Cardinal at 2:05 AM on August 27, 2005