[d@DCC] RE: [oclug] A dream?
jyoung at lexinformatica.org
Fri Sep 20 22:26:18 EDT 2002
EULA's are simply licences. They are enforceable in Canada, but are
subject to limitations such as the first-sale doctrine (seller can't
enforce conditions of sale on subsequent buyer who did not agree to
terms), unconscionability (against public policy), contrary to
positive law (contravenes statute), and so forth. Certain types of
EULA's, such as shrinkwraps, have received mixed reception in the
courts, but are generally enforceable too. For example, in ProCD v.
Zeidenberg, the U.S. ct. found that the terms could not be reasonably
printed on the outside of the box, but the splash screen - containing
the terms - required the defendant to click on an "I Accept" button
before using the software. He was therefore deemed to have accepted
the terms by his conduct. This case has been persuasive in Canada. In
the first Cdn. shrinkwrap case, going back to 1981, the ct. found the
licence unenforceable because it included language which could not
have been anticipated by the end user (I'm paraphrasing)... I could
go on, but I don't know if I'm answering your question.
Here's an example of the language of a EULA
http://www.lexinformatica.org/dox/bumblebee/eula.html. You'll note
the first line says "This is a licence, not a sale." This is an
attempt by the vendor to defeat the first-sale doctrine and enforce
the licence (which can be defined as pretty much anything; see above)
on subsequent uses of the software by third-parties (i.e. Chris buys
from Tom. Tom includes conditions X, Y, and Z in the licence. Chris
subsequently sells to me. I am not bound by X, Y, and Z because the
vendor's licence is extinguished under first-sale, although copyright
The problem is that this language is really only enforceable under
the Uniform Commercial Code, which has only been adopted in 2 U.S.
states and nowhere in Canada. I suppose it could also be enforced in
code, using rights management backed by the anti-circumvention
provisions of the DMCA (in the U.S.)
At 09:54 -0700 02.09.16, Chris Brand wrote:
> >I don't know what legal force the EULA has in Canada. Does anyone?
>I believe the answer here is "no". I am unaware of any cases where the
>EULA has been ruled on by the courts (but then I'm not a lawyer - perhaps
>someone with some legal training can comment ?).
>I did ask the Industry Canada legal expert at the Copyright consultation
>this question and he told me that it's "probably enforceable in Canada".
>Don't think I'd want to be the test case :-)
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