So the past few days have seen some compartmentalized drama regarding Google’s Chrome EULA and the damned GoogleUpdate.exe. Which got me to think about other software’s EULAs and what they say.
In any event, pretty typical. So it raises the question, how enforceable are these EULAs? Well, in Davidson & Associates v. Jung, 422 F.3d 630 (8th Cir. 2005), the Eighth Circuit affirmed the District Court’s enforcement of a EULA involving reverse engineering of Blizzard’s games and Battle.net. In XPEL Technologies v. Maryland Performance Works, No. SA-05-CA-0593-X, 2006 U.S. Dist. LEXIS 47158 (W.D. Tex. 2006), the Western DIstrict of Texas enforced a forum-selection clause found in the EULA. However, there is another line of cases, involving “shrink-wrap” licenses, where the EULA is not something to which you show some sort of assent by clicking, but rather you show assent when you rip open the shrink-wrap around your media. For example, in Vault v. Quaid Software, 847 F.2d 255 (5th Cir. 2005) (“the restriction in Vault’s license agreement against decompilation or disassembly is unenforceable.”). Careful, though: Davidson & Associates, which I cited above, is very quick to point out that the DMCA has scuttled a lot of one’s ability to go in and do a bit of tinkering. And the Eastern District of California has recently found certain EULAs to be enforceable. See, for example, Meridian Project Systems v. Hardin Construction, 426 F. Supp. 2d 1101 (E.D. Cal. 2006).