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Replying To:
EULA are NOT enforceable (none / 0) (#2)
by srynas on Mon Apr 10, 2006 at 06:10:03 AM PDT

My opinion (and I am not a lawyer) is that EULA's do not constitute valid contracts. However, we need to recognize that "CONTRACT" law and "COPYRIGHT" law are two different things.  Below are links to "COPYRIGHT" law.
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Link to U.S. Copyright Office:
http://www.copyright.gov/
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Cornell Law School Link to US Code Title 17 - Copyright
http://www4.law.cornell.edu/uscode/html/uscode17/usc_sup_01_17.html
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The reader cited above makes an erronous statement: "Copyright owners automatically have exclusive rights to their own works. Whatever rights they decide to exchange for money is their choice." Copyright law does NOT give an author exclusive rights. It would appear that the reader is really referencing the use of an EULA as a contract of adhesion.  

House report no. 94-1476 states: "The judicial doctrine of fair use, one of the most important and well-established limitations on the exclusive right of copyright owners, would be given express statutory recognition for the first time in section 107. The claim that a defendant's acts constituted a fair use rather than an infringement has been raised as a defense in innumerable copyright actions over the years, and there is ample case law recognizing the existence of the doctrine and applying it."
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Contract Law: See Wikipedia: http://en.wikipedia.org/wiki/Contract_law
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Adhesion Contracts
http://en.wikipedia.org/wiki/Adhesion_contract
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The obvious logical fallacy of the adhesion contract is that upon purchase of a product you could give the vendor your own version of an EULA.  If the vendor can do it, why not the consumer? So who's verson would constitute the legally binding binding contract, your's or the vendor's?

Wikipedia had the following: "Courts in the United States have faced the issue of shrink wrap contracts in two ways. One line of cases follows ProCD v. Zeidenberg which held such contracts enforceable (eg. Brower v Gateway [4]) and the other follows Klocek v. Gateway, Inc which found them unenforceable (eg. Specht v. Netscape Communications Corp. [5]). These decisions are split on the question of consent, with the former holding that only objective manifestation of consent is required while the latter require at least the possibility of subjective consent."
http://en.wikipedia.org/wiki/Shrink_wrap_contract
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Klocek v. Gateway, Inc., et al.
2000 U.S. Dist. Lexis 9896, 104 F. Supp.3d 1332 (D. Kan., June 16, 2000)
http://www.phillipsnizer.com/library/cases/lib_case209.cfm
"Court holds that Gateway's Standard Terms and Conditions, supplied along with and inside the packaging of a computer purchased by the plaintiff, do not create a binding contract with that consumer under either the law of either Missouri or Kansas. The court reached this conclusion despite the fact that the Standard Terms provide that they will constitute the terms of such an agreement if the consumer retains the computer for more than 5 days, and the consumer so retained the computer."



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