[d@DCC] RE: [oclug] A dream?

[Jason Young]

Chris/Tom,

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 
subsists.)

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.)

Jason

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 :-)
>
>Chris
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