[Y_Y]

> "By installing, copying or otherwise using ... you agree to be bound by ... "

Why do people keep writing shit like this. Whoever wrote that EULA no doubt has an understanding of contract law and knows that you can't just unilaterally bind someone into an agreement like that. I know it's classic EULA nonsense, but it still bugs me how you can just write whatever and hope people naively take your word on it.

[deng]

Unfortunately, it is not that easy. First off, "contract law", apart from being incredibly complex, is also different depending on where you are located. Even within the US, we have seen different rulings on whether EULAs are enforceable or not. It often depends on how these EULAs are presented to the user and how exactly they are worded. Here in Germany, I'm pretty sure that the above would not be enforceable, but the real reason these EULAs are written is usually not that they hold up in court. From my experience, having an EULA like this will make pretty sure that no company with a legal department will touch this thing with a 10foot pole, so in effect, EULAs actually do work (unfortunately).

[Semaphor]

> Here in Germany

I agree, because of AGB-law, though that depends on some stuff, the usual EULA-void rules were because you had to buy the software before agreeing to the EULA instead of the other way around. Not sure what would happen here.

But IIRC that is generally not relevant for contracts between companies, only between consumers and companies. Not quite sure about that part, though.

[imtringued]

https://www.gesetze-im-internet.de/bgb/__310.html

>(1) § 305 Absatz 2 und 3, § 308 Nummer 1, 2 bis 9 und § 309 finden keine Anwendung auf Allgemeine Geschäftsbedingungen, die gegenüber einem Unternehmer, einer juristischen Person des öffentlichen Rechts oder einem öffentlich-rechtlichen Sondervermögen verwendet werden.

§ 308 and § 309 are "catalogues" of various conditions that nullify an AGB clause. Also, contract clauses in individual contracts can still be considered as part of the AGB even if the company gives you a separate AGB document.

[jxdxbx]

A “license” is legal permission to do something that would otherwise be illegal, such as copy software (assuming there’s no fair use etc), or even attend a concert. Licenses are often granted as part of contracts, but need not be. Unilateral license conditions are not binding contacts, but not following them can still be unlawful. If a movie theater breaks a license term by for example playing a movie publicly without authorization, it violates copyright, not contact law. Probably both in real life.

[paulnpace]

This is a license agreement, so who are the parties coming to agreement?

[eli]

If you're not a party to the agreement then isn't possessing the software a copyright violation?

[josephcsible]

If I buy a used computer, do I have to agree to the terms of every publisher with software on it to not break copyright law?

[ndsipa_pomu]

As you're neither redistributing it or copying it, copyright law is not applicable.

[ndsipa_pomu]

Only if you are distributing it or making a copy. As to how you came into possession of the software without making a copy is another question.

[tesseract]

For binary software licenses, historically a lot of them have been premised on the idea that it is impossible to use the software without copying it from installation media onto local storage and/or from storage into RAM for execution, meaning that effectively it's possible to use contracts based in copyright law to set terms for the use of the software and not just for what a human might think of as "copying".

[ndsipa_pomu]

I recall that being an argument used against piracy, but I don't know if it was successful or not. It seems disingenuous to me as you could classify almost any process to be "copying" e.g. reading a book is using light to make a "copy" of the printed words onto your retinas.

[rightbyte]

You could use someone else's computer or maybe you have bought one 2nd handand never agreed to any EULA.

[ndsipa_pomu]

Well that would be unlicensed usage of the software, but not copyright infringement by yourself. Resale of software is a trickier topic which may be covered by consumer rights.

[paulnpace]

In the context of this EULA, the software can be downloaded from GitHub without any agreement (between user and GitHub).

[JohnFen]

Not necessarily. Distributing such software would be, though.

[chaosite]

Unless that movie theater entered into a contract with a distributor, right?

[jxdxbx]

In real situations yes. But in the software world “license” and “contract” are often used interchangeably, contracts that grant license will be called “licenses,” etc. So it leads to confusion.

[matheusmoreira]

Could have been worse. It could have been "by reading this license, you agree to its terms" which is essentially what website EULAs do.

[delusional]

It should be disbarrable to knowingly write unenforceable EULA's.

[DannyBee]

This one is likely enforceable.

[imtringued]

There is a difference between individual clauses being invalidated and the whole contract being invalidated.

[meghan_rain]

The you will surely agree to be permanently barred from looking at, commenting, writing or otherwise contributing to code if you write a bug I deem severe enough?

[dooglius]

Seems reasonable to bar someone from contributing code to a project who _knowingly_ contributes severely buggy code

[v3d2]

I wasn't aware you needed a license to code.

[kaliqt]

With the way peasa- I mean citizens talk these days, they'd say breathing should require a license.

[beepbooptheory]

Is this like a feudalism joke? I don't get it.

[Zephyo_]

I am very uneducated on this subject, what exactly is the problem with that sentence?

[t0mas88]

Apparently the code is Apache licensed, so you can use that code.

Putting a file somewhere that states "you agree to X by using the software" without you signing anything isn't an enforceable contract. If they want you to agree to something it needs to be (e-)signed. Not just stating an action and claiming that by doing that you agree to a contract.

[DannyBee]

Actually, this is totally wrong, at least in the US.

They can't bind you for doing nothing (opening a package for example).

They can bind you if you get the benefit of the bargain, which you would by using the software.

[delfinom]

There was a Samsung court case in recent times they lost over this btw. They argued users were bound to arbitration due to the EULA piece of paper in the box. The court ruled against Samsung because Samsung could not reasonably prove a user read this piece of paper in a box even though they were using the phone that was packaged. The court explained the Samsung phones would have to prompt the EULA to have active acceptance.

[DannyBee]

Not quite - that was because it was labeled a warranty brochure. There are also weird warranty vs contract issues there.

The court, on the contract issue, found that people would not expect to find an arbitration restriction in the warranty brochure, and without something else pointing them at it, it wasn't good enough.

"Here, Samsung entitled the brochure “Product Safety & Warranty Information.” The title would not put a reasonable person on notice that the brochure contained “a freestanding obligation outside the scope of the warranty.” "

The court would have been satisfied if they had put a big ole sticker on the phone screen that said "the warranty brochure contains important arbitration restrictions, you should read it".

No active acceptance necessary ;)

The court was also clear that in-box unilateral contracts are okay under california law.

In this case, you are right the question will be whether someone would be expected to notice it exists.

Unlike a random warranty brochure containing arbitration provisions, EULA.txt and friends are common in software, so a court is likely to find the terms would be there. Of course, if they lose they'll clickwrap it and win.

Don't get me wrong, i think in-box contracts are nonsense, but my personal view is not the law, or even close to it.

[rollcat]

I was just wondering, if I were to fork the code, remove the EULA, and use that fork as usual - I would not be violating the terms of the Apache license, right?

[alphager]

A contract requires mutual assent. Hiding an EULA.txt file somewhere does not fulfill the assent requirement. You are already copying nextcloud when you download it; you can't be bound to arbitrary demands you never heard of for that.

[DannyBee]

Unilateral form contracts are a thing.

Clickwrap is generally enforceable.

Browserwrap generally is not.

[gmerc]

What OP says, it’s not enforceable. that’s not how contracts work despite longstanding attempts to make people believe so

[DannyBee]

OP is wrong. This would be a enforceable in the US, despite lots of HN not wanting it to be, and badly playing lawyer.

Unilateral form contracts are enforced all the time.

[tssva]

The blanket statement that EULAs are unenforceable is not accurate. EULAs are enforceable in some jurisdictions. They are where I live.

[tptacek]

A lawyer downthread says you're wrong about this. Are you also a lawyer? Or are they wrong?