Packaging EULA's

Adam Smith <ad*******@econ.comscripsit:

Many program & sites package their EULA's in neat dialog boxes, w/ I
Agree, Do Not Agree Radio buttons. Could someone say how this is done?

There's nothing neat in such dialog boxes. They exist just to please lawyers
that imagine that the dialogs have a legal meaning and work with such issues
since they cannot find neither a more profitable nor a more decent job.

If you want to know how to piss off your visitors with such boxes on web
pages, just look at the source code. You may need to ask the nearest kid for
help in dealing with the way that the page may seem to have "hidden its
source".

--
Jukka K. Korpela ("Yucca")
http://www.cs.tut.fi/~jkorpela/

Sep 9 '06 #2

Jukka K. Korpela wrote:

Adam Smith <ad*******@econ.comscripsit:

>Many program & sites package their EULA's in neat dialog boxes, w/ I
Agree, Do Not Agree Radio buttons. Could someone say how this is done?

There's nothing neat in such dialog boxes. They exist just to please
lawyers that imagine that the dialogs have a legal meaning and work with
such issues since they cannot find neither a more profitable nor a more
decent job.

What makes you think they don't have a legal meaning, and why do you
seem so disdainful about people placing conditions on the use of their
property?

If you want to know how to piss off your visitors with such boxes on web
pages, just look at the source code.

Do you get pissed off that a landlord wants you to agree to some
conditions before allowing you to live in a house he owns?

Sep 10 '06 #3

Adam Smith

Harlan Messinger wrote:

Jukka K. Korpela wrote:
>Adam Smith <ad*******@econ.comscripsit:

>>Many program & sites package their EULA's in neat dialog boxes, w/ I
Agree, Do Not Agree Radio buttons. Could someone say how this is done?

There's nothing neat in such dialog boxes. They exist just to please
lawyers that imagine that the dialogs have a legal meaning and work
with such issues since they cannot find neither a more profitable nor
a more decent job.

What makes you think they don't have a legal meaning, and why do you
seem so disdainful about people placing conditions on the use of their
property?

>If you want to know how to piss off your visitors with such boxes on
web pages, just look at the source code.

Do you get pissed off that a landlord wants you to agree to some
conditions before allowing you to live in a house he owns?

Well, I regarded that as coming from an immature, naive source. I am
surprised that I haven't received any directions to the question though,
or ahve I posted to the wrong forum (It so hard to tell).

Sep 10 '06 #4

Jonathan N. Little

Adam Smith wrote:

Harlan Messinger wrote:
>Jukka K. Korpela wrote:
>>Adam Smith <ad*******@econ.comscripsit:

Many program & sites package their EULA's in neat dialog boxes, w/ I
Agree, Do Not Agree Radio buttons. Could someone say how this is done?

There's nothing neat in such dialog boxes. They exist just to please
lawyers that imagine that the dialogs have a legal meaning and work
with such issues since they cannot find neither a more profitable nor
a more decent job.

What makes you think they don't have a legal meaning, and why do you
seem so disdainful about people placing conditions on the use of their
property?

>>If you want to know how to piss off your visitors with such boxes on
web pages, just look at the source code.

Do you get pissed off that a landlord wants you to agree to some
conditions before allowing you to live in a house he owns?

Well, I regarded that as coming from an immature, naive source. I am
surprised that I haven't received any directions to the question though,
or ahve I posted to the wrong forum (It so hard to tell).

Maybe if you elaborate on your application of this EULA you may receive
more specific advice.

How an application does it and a web site differers greatly. An
application is compiled and interacts with the OS's API directly to
create a dialog box. With a website you would need essentially a login
form and you EULA page would log the user on to protected pages.

--
Take care,

Jonathan
-------------------
LITTLE WORKS STUDIO
http://www.LittleWorksStudio.com

Sep 10 '06 #5

Adam Smith <ad*******@econ.comscripsit:

Well, I regarded that as coming from an immature, naive source.

The EULA stuff you mean? Quite probable. (It's hard to tell what someone is
referring to with a pronoun "that" in some text that follows a lengthy
quotation.)

I am
surprised that I haven't received any directions to the question
though, or ahve I posted to the wrong forum (It so hard to tell).

Then you apparently didn't read my response or you failed to understand it.
Your question hardly has much to do with HTML, and I actually gave you
directions to the _question_ indeed.

ObHTML: If you want to see _huge_ amounts of keyword spamming, view
http://www.econ.com
on a text browser or view its source.

--
Jukka K. Korpela ("Yucca")
http://www.cs.tut.fi/~jkorpela/

Sep 10 '06 #6

In message <4m************@individual.net>, Harlan Messinger
<hm*******************@comcast.netwrites

>Jukka K. Korpela wrote:
>Adam Smith <ad*******@econ.comscripsit:

>>Many program & sites package their EULA's in neat dialog boxes, w/ I
Agree, Do Not Agree Radio buttons. Could someone say how this is done?
There's nothing neat in such dialog boxes. They exist just to please
lawyers that imagine that the dialogs have a legal meaning and work
with such issues since they cannot find neither a more profitable nor
a more decent job.

What makes you think they don't have a legal meaning

Rather than asking Jukka to prove a negative, why don't you tell us what
makes you think that they do?

--
Andy Mabbett
Say "NO!" to compulsory ID Cards: <http://www.no2id.net/>

Free Our Data: <http://www.freeourdata.org.uk>

Sep 10 '06 #7

Nick Kew

Adam Smith wrote:

Hello,

Many program & sites package their EULA's in neat dialog boxes,

where they are utterly unreadable. I always delete it and
substitute "I can't read this in a ridiculous little text box",
or words to that effect, before agreeing.

> w/ I
Agree, Do Not Agree Radio buttons. Could someone say how this is done?

<textarea>

--
Nick Kew

Application Development with Apache - the Apache Modules Book
http://www.prenhallprofessional.com/title/0132409674

Sep 10 '06 #8

Michael Winter

Andy Mabbett wrote:

In message <4m************@individual.net>, Harlan Messinger
<hm*******************@comcast.netwrites

[snip]

>What makes you think [click-through agreements] don't have a legal
meaning

Rather than asking Jukka to prove a negative, why don't you tell us
what makes you think that they do?

I remember this coming up a while back and, out of curiosity, I
Googled[1]. The first result[2], and the one I remember the most,
suggests that the binding nature of user agreements varies based on
jurisdiction (not surprising, really), and is subject to certain
constraints.

Mike (not a lawyer!)
[1] <http://www.google.co.uk/search?q=click-through+agreements+legality>
[2] <http://www.andrewpatrick.ca/jitcta/jitcta.html>

Sep 10 '06 #9

Andy Mabbett wrote:

In message <4m************@individual.net>, Harlan Messinger
<hm*******************@comcast.netwrites

>Jukka K. Korpela wrote:
>>Adam Smith <ad*******@econ.comscripsit:

Many program & sites package their EULA's in neat dialog boxes, w/ I
Agree, Do Not Agree Radio buttons. Could someone say how this is done?
There's nothing neat in such dialog boxes. They exist just to please
lawyers that imagine that the dialogs have a legal meaning and work
with such issues since they cannot find neither a more profitable nor
a more decent job.
What makes you think they don't have a legal meaning

Rather than asking Jukka to prove a negative, why don't you tell us what
makes you think that they do?

A click-through agreement possesses all the elements that, in the US at
least, constitute a valid contract, and to anyone familiar with
contracts this much is obvious. If you're interested, see

http://www.lectlaw.com/def/c123.htm

and in particular the part about parol contracts.

It's Jukka making the claim that something that is obviously a contract
isn't legally binding. Of course, the whole matter is muddied because
Jukka may be talking about Finland or the EU, and I don't know the law
there.

Sep 11 '06 #10

Harlan Messinger wrote:

>
A click-through agreement possesses all the elements that, in the US at
least, constitute a valid contract, and to anyone familiar with
contracts this much is obvious. If you're interested, see

http://www.lectlaw.com/def/c123.htm

and in particular the part about parol contracts.

US contract law comes from British contract law, so I'm guessing the
fundamentals might still be similar in the UK even after 230 years.

Sep 11 '06 #11

Stephen Poley

On Mon, 11 Sep 2006 11:22:38 -0400, Harlan Messinger
<hm*******************@comcast.netwrote:

>Andy Mabbett wrote:
>In message <4m************@individual.net>, Harlan Messinger
<hm*******************@comcast.netwrites

>>Jukka K. Korpela wrote:
Adam Smith <ad*******@econ.comscripsit:

Many program & sites package their EULA's in neat dialog boxes, w/ I
Agree, Do Not Agree Radio buttons. Could someone say how this is done?
There's nothing neat in such dialog boxes. They exist just to please
lawyers that imagine that the dialogs have a legal meaning and work
with such issues since they cannot find neither a more profitable nor
a more decent job.
What makes you think they don't have a legal meaning

Rather than asking Jukka to prove a negative, why don't you tell us what
makes you think that they do?

A click-through agreement possesses all the elements that, in the US at
least, constitute a valid contract, and to anyone familiar with
contracts this much is obvious.

....

>Of course, the whole matter is muddied because
Jukka may be talking about Finland or the EU, and I don't know the law
there.

I went to a seminar on the law relating to software in the Netherlands a
few years ago. The speaker on this matter said it had not been tested
before the courts, and it was uncertain whether a click-through
agreement would stand up in the Netherlands. Apparently legal opinion
was divided but he was inclined to think it would not.

He further added that at least some clauses of some click-through
contracts he had seen would definitely not stand up in the Netherlands.

I don't know whether things have changed since.

--
Stephen Poley

http://www.xs4all.nl/~sbpoley/webmatters/

Sep 11 '06 #12

Stephen Poley <sb******************@xs4all.nlscripsit:

I went to a seminar on the law relating to software in the
Netherlands a few years ago. The speaker on this matter said it had
not been tested before the courts, and it was uncertain whether a
click-through agreement would stand up in the Netherlands.

Hardly anyone _wants_ to test it in a court. There would be a lot of
expenses to lose and little if anything to win. But this still isn't an HTML
issue.

Well, I do have an ObHTML here:

Given any normal www form or link that is claimed to constitute a contract
when clicked on, based on stuff on the page where it resides, one can
construct a link that leads to the same page and does not involve any kind
of reference to any commitment or contract. (If the form uses POST method,
you need either a little bit of JavaScript or a simple server-side piece of
software.) So how could you prove that the user who enters the page has
actually even seen your "click-through agreement"? Right, you don't.

--
Jukka K. Korpela ("Yucca")
http://www.cs.tut.fi/~jkorpela/

Sep 11 '06 #13

Toby Inkster

Harlan Messinger wrote:

A click-through agreement possesses all the elements that, in the US at
least, constitute a valid contract, and to anyone familiar with
contracts this much is obvious.

But if it's not delivered through HTTPS, then it could be tampered with
en-route to the visitor, so you can never quite be sure whether it was
*your* contract they agreed to, or some man-in-the-middle's contract.

And speaking of tampering with HTTP en-route:
http://www.ex-parrot.com/~pete/upside-down-ternet.html

--
Toby A Inkster BSc (Hons) ARCS
Contact Me ~ http://tobyinkster.co.uk/contact

Sep 12 '06 #14

In message <4m************@individual.net>, Harlan Messinger
<hm*******************@comcast.netwrites

>A click-through agreement possesses all the elements that, in the US at
least, constitute a valid contract, and to anyone familiar with
contracts this much is obvious.

Claiming "this much is obvious" is hardly a strong argument; not least
because it's far from obvious.

--
Andy Mabbett
Say "NO!" to compulsory ID Cards: <http://www.no2id.net/>

Free Our Data: <http://www.freeourdata.org.uk>

Sep 12 '06 #15

Jukka K. Korpela wrote:

Stephen Poley <sb******************@xs4all.nlscripsit:

>I went to a seminar on the law relating to software in the
Netherlands a few years ago. The speaker on this matter said it had
not been tested before the courts, and it was uncertain whether a
click-through agreement would stand up in the Netherlands.

Hardly anyone _wants_ to test it in a court. There would be a lot of
expenses to lose and little if anything to win. But this still isn't an
HTML issue.

Well, I do have an ObHTML here:

Given any normal www form or link that is claimed to constitute a
contract when clicked on, based on stuff on the page where it resides,
one can construct a link that leads to the same page and does not
involve any kind of reference to any commitment or contract. (If the
form uses POST method, you need either a little bit of JavaScript or a
simple server-side piece of software.) So how could you prove that the
user who enters the page has actually even seen your "click-through
agreement"? Right, you don't.

With a contract printed on paper, you also can't prove that the person
who signs it has read it, even if his signature is under a printed
statement reading, "I affirm that I have read this contract." So? The
contract is still binding.

If someone encountering a EULA chooses to engineer a hack to get around
reading it, what would lead you to expect a judge to give him any more
sympathy than would be given to a person who signed a hard-copy contract
and then later claimed not to be bound by it because he hadn't read it?

Sep 12 '06 #16

Toby Inkster wrote:

Harlan Messinger wrote:

>A click-through agreement possesses all the elements that, in the US at
least, constitute a valid contract, and to anyone familiar with
contracts this much is obvious.

But if it's not delivered through HTTPS, then it could be tampered with
en-route to the visitor, so you can never quite be sure whether it was
*your* contract they agreed to, or some man-in-the-middle's contract.

I suspect an assertion that tampering had occurred would be required,
along with evidence that it had happened. I wouldn't think it would be
the starting assumption. After all, printed contracts can be tampered
with, and, in the US at least, even oral contracts can often be
enforced. A business issuing a EULA has a better chance of proving that
it presented that EULA to the user, and of proving what the EULA said,
than someone bringing an oral contract into court.

Sep 12 '06 #17

Andy Mabbett wrote:

In message <4m************@individual.net>, Harlan Messinger
<hm*******************@comcast.netwrites

>A click-through agreement possesses all the elements that, in the US at
least, constitute a valid contract, and to anyone familiar with
contracts this much is obvious.

Claiming "this much is obvious" is hardly a strong argument; not least
because it's far from obvious.

If you know what constitutes a contract in the first place, yes, it is
obvious, just as obvious as it is to anyone looking at me that I have
two eyes, a nose, and a mouth. You don't have perform a complex analysis
of a EULA to find the elements of a contract--they're right there.

Sep 12 '06 #18

Harlan Messinger <hm*******************@comcast.netscripsit:

With a contract printed on paper, you also can't prove that the person
who signs it has read it,

There's no need for proving that, and this has nothing to do with the
discussion at hand, still less HTML.

If someone encountering a EULA chooses to engineer a hack to get
around reading it,

then someone else can quite innocently follow a link and arrive at a page
without seeing any reference to any contract, as I wrote.

--
Jukka K. Korpela ("Yucca")
http://www.cs.tut.fi/~jkorpela/

Sep 12 '06 #19

Jukka K. Korpela wrote:

Harlan Messinger <hm*******************@comcast.netscripsit:

>With a contract printed on paper, you also can't prove that the person
who signs it has read it,

There's no need for proving that,

Right, so in the analogous web-based situation, someone running a web
site ought not to have the initial burden of proving that the user read
the EULA.

and this has nothing to do with the
discussion at hand, still less HTML.

How does an analogy relating to whether a person read or didn't read a
contract not have anything to do with a discussion on whether a person
did or didn't read a contract?

>If someone encountering a EULA chooses to engineer a hack to get
around reading it,

then someone else can quite innocently follow a link and arrive at a
page without seeing any reference to any contract, as I wrote.

And the company's web logs will show the the EULA was never requested by
the user. (It seems to me a hack is easily prevented, by inserting a
random string into a hidden INPUT tag [ObHTML] and expecting to receive
that same string from the same IP to which it was sent and/or from
within the same user session.)

Anyway, as with any contract, the answer to the question of whether a
EULA would be binding if a person did agree to it doesn't rely on the
fact that it certainly wouldn't be binding if it had never been
presented to the person.

Sep 12 '06 #20

Harlan Messinger <hm*******************@comcast.netscripsit:

Right, so in the analogous web-based situation, someone running a web
site ought not to have the initial burden of proving that the user
read the EULA.

Don't be ridiculous. If I put a note (in fine print, for example) on my
page, saying that by reading my page you commit to giving me everything you
own, that would constitute a contract between us, if your approach were
correct. The same would apply if my page contained, before a link, a note
saying that by following the link you commit to giving me everything you
own. According to your approach, we could discard even the fact that there
might be (well, there _would_ be, thanks to search engines) _other_ links to
the linked page, with no such note before the link.

Followups trimmed to alt.html. This was never really an HTML question.

--
Jukka K. Korpela ("Yucca")
http://www.cs.tut.fi/~jkorpela/

Sep 12 '06 #21

In message <4m************@individual.net>, Harlan Messinger
<hm*******************@comcast.netwrites

>Andy Mabbett wrote:
>In message <4m************@individual.net>, Harlan Messinger
<hm*******************@comcast.netwrites

>>A click-through agreement possesses all the elements that, in the US
at
least, constitute a valid contract, and to anyone familiar with
contracts this much is obvious.
Claiming "this much is obvious" is hardly a strong argument; not
least
because it's far from obvious.

If you know what constitutes a contract in the first place, yes, it is
obvious,

I know what constitutes a contract and no, it is not obvious (that all
the elements are possessed by a click-though EULA).
--
Andy Mabbett
Say "NO!" to compulsory ID Cards: <http://www.no2id.net/>

Free Our Data: <http://www.freeourdata.org.uk>

Sep 12 '06 #22

Andy Mabbett wrote:

In message <4m************@individual.net>, Harlan Messinger
<hm*******************@comcast.netwrites

>Andy Mabbett wrote:
>>In message <4m************@individual.net>, Harlan Messinger
<hm*******************@comcast.netwrites

A click-through agreement possesses all the elements that, in the US
at
least, constitute a valid contract, and to anyone familiar with
contracts this much is obvious.
Claiming "this much is obvious" is hardly a strong argument; not
least
because it's far from obvious.
If you know what constitutes a contract in the first place, yes, it is
obvious,

I know what constitutes a contract and no, it is not obvious (that all
the elements are possessed by a click-though EULA).

Two parties, agreement, free will, consideration, etc., etc., all are
perfectly capable of existing in a EULA. What element do you think is
inherently absent from a EULA?

Sep 12 '06 #23

In message <4m************@individual.net>, Harlan Messinger
<hm*******************@comcast.netwrites

>Two parties, agreement, free will, consideration, etc., etc., all are
perfectly capable of existing in a EULA.

Sure, they are all /capable/ of existing. Now explain how you think you
can determine, for any given case, that they /do/ exist.

--
Andy Mabbett
Say "NO!" to compulsory ID Cards: <http://www.no2id.net/>

Free Our Data: <http://www.freeourdata.org.uk>

Sep 12 '06 #24

Eric B. Bednarz

Harlan Messinger <hm*******************@comcast.netwrites:

Jukka K. Korpela wrote:

>then someone else can quite innocently follow a link and arrive at a
page without seeing any reference to any contract, as I wrote.

And the company's web logs will show the the EULA was never requested
by the user.

Oh. How?

(It seems to me a hack is easily prevented, by inserting
a random string into a hidden INPUT tag [ObHTML] and expecting to
receive that same string from the same IP

If the form is available with different protocols, I would settle for
one particular. :)

to which it was sent and/or
from within the same user session.)

ISPs can assign a different address to every request of one particular
user. Or the other way round. But I agree that this sort of prevention
is easy to implement, just like identifying the browser with the
user-agent field.
--
||| hexadecimal EBB
o-o decimal 3771
--oOo--( )--oOo-- octal 7273
205 goodbye binary 111010111011

Sep 13 '06 #25

In message <4m************@individual.net>, Harlan Messinger
<hm*******************@comcast.netwrites

>With a contract printed on paper, you also can't prove that the person
who signs it has read it, even if his signature is under a printed
statement reading, "I affirm that I have read this contract." So? The
contract is still binding.

NO, but you can prove that he's the one who signed it.

You do that with an EULA, how, exactly?

--
Andy Mabbett
Say "NO!" to compulsory ID Cards: <http://www.no2id.net/>

Free Our Data: <http://www.freeourdata.org.uk>

Sep 13 '06 #26

Andy Mabbett wrote:

In message <4m************@individual.net>, Harlan Messinger
<hm*******************@comcast.netwrites

>With a contract printed on paper, you also can't prove that the person
who signs it has read it, even if his signature is under a printed
statement reading, "I affirm that I have read this contract." So? The
contract is still binding.

NO, but you can prove that he's the one who signed it.

You do that with an EULA, how, exactly?

If the EULA accompanies a purchase made with a credit card, then the
evidence of the person's identity is as strong as it ever is in an
on-line credit card purchase. If the user is required to respond to an
e-mail or to return to the website to enter a code that was provided via
e-mail, then ownership of the e-mail address that the user supplied for
this purpose would, I would think, suffice as prima facie (though
rebuttable) evidence of his identity. If either of the previous
conditions held in a previous visit to the site, at the time the user
created a site membership with a user name and password, and the user
has now logged in with that user name and password, that could again be
construed as prima facie evidence of his identity.

If the EULA mechanism is not structured in such a way as to provide
sufficient assurance of the user's identity, then naturally the user
could challenge any later claim that he'd accepted it (assuming, of
course, that he hadn't).

Identities can be stolen, of course, but if that fact were sufficient to
make all on-line EULAs inherently nonbinding outright, wouldn't the same
hold for all other on-line transactions? And then you could make the
same case for any non-in-person transaction where the person agreeing to
terms doesn't provide proof of identity.

Sep 13 '06 #27

Eric B. Bednarz wrote:

Harlan Messinger <hm*******************@comcast.netwrites:

>Jukka K. Korpela wrote:

>>then someone else can quite innocently follow a link and arrive at a
page without seeing any reference to any contract, as I wrote.
And the company's web logs will show the the EULA was never requested
by the user.

Oh. How?

How do you tell from a web log whether a request for a particular page
by a particular person at a particular time did or not occur? By looking
at it, no?

>
>(It seems to me a hack is easily prevented, by inserting
a random string into a hidden INPUT tag [ObHTML] and expecting to
receive that same string from the same IP

If the form is available with different protocols, I would settle for
one particular. :)

>to which it was sent and/or
from within the same user session.)

ISPs can assign a different address to every request of one particular
user.

Theoretically, but they don't, do they? Even if it happens every so
often, how does that affect the usual case where the IP *hasn't* changed
from one request to the next?

I don't think a judge is going attribute much likelihood to a scenario
where the DNS operator at an ISP is eavesdropping on users' sessions and
swapping IPs when they reach EULA pages and agreeing to the EULAs in
their stead so that they can later get in trouble for using software
without a license. Courts don't ordinarily base their rulings on the
remotest of possibilities.

Or the other way round. But I agree that this sort of prevention
is easy to implement, just like identifying the browser with the
user-agent field.

Sep 13 '06 #28

Andy Mabbett wrote:

In message <4m************@individual.net>, Harlan Messinger
<hm*******************@comcast.netwrites

>Two parties, agreement, free will, consideration, etc., etc., all are
perfectly capable of existing in a EULA.

Sure, they are all /capable/ of existing. Now explain how you think you
can determine, for any given case, that they /do/ exist.

It isn't *less* possible to establish their existence than in the case
of an oral contract, since electronic and possibly paper records are
kept. Since oral contracts can be found to be binding, it follows that
it's possible to provide sufficient evidence of the existence of the
basic elements of a contract in an oral agreement. Since it's even more
possible to do so with an on-line EULA, there's no less reason why an
on-line EULA could be established to be a contract and found to be binding.

Sep 13 '06 #29

Shawn K. Quinn

begin quotation
from Jukka K. Korpela <jk******@cs.tut.fi>
in message <c3*****************@reader1.news.jippii.net>
posted at 2006-09-11T22:03

Well, I do have an ObHTML here:

Given any normal www form or link that is claimed to constitute a
contract when clicked on, based on stuff on the page where it resides,
one can construct a link that leads to the same page and does not
involve any kind of reference to any commitment or contract. (If the
form uses POST method, you need either a little bit of JavaScript or a
simple server-side piece of software.) So how could you prove that the
user who enters the page has actually even seen your "click-through
agreement"? Right, you don't.

There is a way, and I think a lot of sites do this: Make the contract
part of the form when submitted (using e.g. <textarea>), compare it
to the contract as it was sent out, and save all the logs. There still
may well be some hole in this I have not thought of, however.

--
___ _ _____ |*|
/ __| |/ / _ \ |*| Shawn K. Quinn
\__ \ ' < (_) | |*| sk*****@speakeasy.net
|___/_|\_\__\_\ |*| Houston, TX, USA

Sep 24 '06 #30