Wendy Grossman explains the legal gray area that surrounds End-User License Agreements (EULA) that Microsoft et al slaps on every piece of software it sells to consumers:
If you did read the terms, you might be surprised. Eulas typically
specify that the software's publisher is not liable if anything goes
wrong. They typically specify the publisher's preferred jurisdiction
for legal disputes. And some are even more restrictive: some graphics
packages have been known to specify that they cannot be used in the
production of pornographic images. Yet these licences are, as Hanlon
complained, not really contracts: you generally cannot read them before
you buy (rather than use) the software, and you can't negotiate terms.
One of the problems that needs to be resolved in the copyfight is the validity of licenses, which not only includes all EULAs, but Creative Commons and open-source licenses like the GNU as well. An argument cannot be made that the consumer and seller participated in a voluntary-exchange, when often the terms of the EULA are not agreed to prior to the purchase. How legitimate are the claims of manufacturers that consumers are merely buying the CDs and not the permission to install and use the software for which the consumer (rightly, I might add) believed he is paying?
We do not accept that Ford or American Eagle (a clothing company) has any say in how we use the products they sell us after it is sold to us. Why then do we give software companies this right?