[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?