I have been reading The Technology Liberation Front (libertarians critiquing developments in the fields of the internet and technology) and came across Tim Lee's repost of the popular webcomic XKCD regarding End-User License Agreements (EULA) with a question, "Legally enforceable?"
Wendy Grossman explained the legal gray area that surrounds every EULA software companies use for their softwares:
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.
I have tackled the question before in Copyfascism Watch, where I raised another point
that EULAs are not voluntary contracts as they are not agreed upon
prior to the purchase of the software. And there is the bizarre claim
by manufacturers that consumers are merely purchasing the physical CDs
and not the software it contains. I asked, "How legitimate are the
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?"
Jeffrey Tucker of the Mises Blog responded:
[R]estrictive covenants do this all the time with houses for example. You
buy the house in a particular neighborhood and it is really yours, but
you can't paint your shutters pink and you have to mow your grass and
can't leave a sofa on the porch etc. Why can't EULAs amount to a sort
In the Mises Blog, Tucker also asked this question, "Are EULAs contrary to property rights?"
Tucker seems to be of notion that is similar to a covenant, but therein
lies the issue and the difference between physical property covenants
and EULAs: covenants are known and agreed upon prior to purchase, EULAs
are hidden contracts that is then revealed to you after the purchase.
A commenter named PR raised the same point:
Since the EULA isn't revealed until after the buyer has handed over his
money, of course it shouldn't be considered a valid agreement. All the
examples of convenants I know of are presented to the buyer before the
sale, but a EULA is more like a legal Trojan horse that restricts the
use of property one already owns.
of the responses seem to miss that point and the important issue
regarding this unconscionable agreements: it is secret, it is hidden,
and cannot be agreed to prior to purchase. A commenter pointed out that
you can always return the software, but most stores I purchase software
from only have a return-policy for unopened boxes of software. Of
course, one can argue that one can choose not to patronize the store
that has taken one's money for a software crippled by an agreement one
cannot agree to prior to purchase and afterwards, but since when do
libertarians make excuses for theft?
Cross-posted to Red State Eclectic.