Comment by EMIRELADERO | Hacker News Reader

Comment by EMIRELADERO | Hacker News Reader

Parent Full thread

Google "contract unconscionability".

How is buying a copy of software which runs on my own computer different from buying a physical machine that runs on my electricity?

If this were using a company's servers, then fine. More power to them. In fact, that's a very fair way to do business. You're stepping in their own backyard and so they get to set the rules of the "house".

But when I run the software in my own machine, using my own processing power, while not using any online services that belong to them, how is it different than just buying a physical thing?

Your cone example is misleading because the melting is a natural consequence of the object existing at room temperature.

Software stays the same unless someone updates it. The copy of the software that I own (emphasis on "copy") does not naturally go through anything besides what the user does to it. If I disconnect from the internet, nobody can touch it.

Microsoft should have the full right to deny service to anyone, I don't think anyone here disputes that. But Minecraft is not a service, it is a good.

Minecraft is transparently not a good. You get a license to it, you don't own it. You don't buy the copy, you buy the license to the copy.

You go to the video store, you get a VHS tape. You don't own the media on the tape. You can use the tape.

That is the deal for proprietary software. That's what you agreed to with your purchase. You consented to the model. You agreed to the terms of the license.

There's nothing misleading about software licensing. You buy a license, that the company and you agree before you spend money on it, that the company can change at any time. There's nothing unconscionable about that. You knowingly went into the deal, and so you should have to deal with the consequences of it.

Governments need to stop babysitting people who make stupid decisions unless it's genuinely urgent; markets don't work when consumers can yell at legislators and judges enough to invalidate the mechanisms of them. It's getting a bit ridiculous.

Should have grabbed a copy of software with a better license. Better luck next time.

You should check out Andino v. Apple, an ongoing lawsuit in which the plaintiff alledges that the use of the "Buy" button is fraudulent if content is truly not bought.

I feel like you are confusing copyright law with contract law.

I can purchase Minecraft without agreeing to any EULA. It only appears after you download the launcher.

Here are the two types of unconscionability:

The basic test applied for unconscionability is “whether, in light of the general background and the needs of a particular case, the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract”.

Substantive unconscionability looks to the actual terms of the

agreement, while procedural unconscionability focuses on the manner

in which the contract was negotiated and the circumstances of the parties at the time of formation. Procedural unconscionability may be shown by either an inequality in bargaining power or unfair surprise. This may be evidenced by terms that are unreasonably favourable to one party, terms hidden in the contract, or where one party has substantially lower education levels. Substantive unconscionability may be shown by an overly harsh allocation of risks or unjustifiable costs or a great price disparity. Where a court finds that a contract or clause is unconscionable at the time it was made, it can refuse to enforce the contract or limit the application of that clause to avoid an unconscionable result.

It is not the EULA that allows me to use the software. The software can be naturally executed and used. The EULA then comes around and coerces me to agree to it if I want to get past an install screen. While the actual software is already in my posession, which is the only thing copyright law regulates. Copying and redistribution.

* It is not the EULA that allows me to use the software.*

ProCD said it was way back in ‘96. It’s still good law isn’t it?

As to unconscionability, the subject matter is relevant. In other words, there aren’t any video game cases in the unconscionability section of the typical contracts textbook.

I-am-not-a-lawyer (nor a judge for that matter), but it seems to me that that line of reasoning can be shut down extremely easily.

You're buying a licence. So the "buy" button is not fraudulent.

As long as it says "buy a license to use Minecraft" and not "buy Minecraft" then yes. If it just says "buy" without telling you what you're buying them a reasonable person would assume it was a good and not a license. You want to sell me a license to some unspecified-until-after-sale access to a good, then don't obtain my money by deceiving me, tell me up front ... then yes, you win at capitalism, go you.

But that truth impacts sales as people want ownership without companies being able to rug pull. We want to be able to load up Minecraft in 30y regardless of whether Microsoft decided they're done with it.

Reply on news.ycombinator.com