EULAs are a bit of a legal minefield, and as far as I know there's no definitive answer to whether they are fully legal or not. If the EULA is not readable before the software packaging is opened (which may be achieved by a page on the licencer's website), it is possible that parts of the EULA may be unenforceable. That said, the rules of copyright are fairly explicit and can be researched quite easily.
This article gives a good, amusing, though US-centric, view of the situation. It may serve as background material, though it is perhaps useless in a legal sense vis-a-vis OATmedia's EULA.
Here is a Californian case history where EULAs were found to have little or no legal merit.
This article examines the UK legal case, though it doesn't go into the problems of resale. One of the things it
does say is:
But what has Fred actually bought from CompuSave? He has bought the property rights to the physical materials (largely worthless) and the right to use the software in a particular way. He hasn't bought any rights to ownership of the software itself. To people who are unfamiliar with intellectual property law this sounds a bit odd, but really it's no different to the agreement you have with a landowner when you enter the premises on licence. A supermarket grants me a licence to enter their property for the purposes of shopping, but that does not give me the right to carry away the display counters. It's the same with software (or books, or audio recordings): the right of use is sold separately from the right of ownership. All this is governed by the Copyright Designs and Patents Act (1988).
This backs up what OAT says, at least in part, and the author of the article presents case history to suggest that the EULA is legally enforceable. He then goes on to suggest that the ruling (in the Scottish Court of Session) was flawed and gives his reasons, but this is just the opinion of one lawyer.
After some research, I've reached the following conclusions:
- A EULA does not affect your rights to a refund if it is not visible at the point of purchase.
- A EULA that contains reasonable provisions backed up by acts of UK Law is enforceable.
- It would seem that, subject to some specific provisions (such as no copies remaining on any disks or computers in your possession), it may be legal in UK to sell software on once it is superfluous to your requirements.
The last point is suggested by several anecdotal references to the sales of secondhand Microsoft software and the protection offered by UK consumer legislation, but I haven't been able to pin down the legal references to give you. Unfortunately, there seems to be little case law surrounding these things - neither consumers nor software manufacturers seem to have been too keen to test EULAs in an English court!
In summary: a EULA cannot be enforced until you have had the opportunity to read it. Once you have had that opportunity, and you accept the EULA, a contract is formed between you, the retailer and the software originator. However, EULA conditions which directly contradict national legislation have no legal standing.
As far as I am concerned (and EBay obviously feels similarly), until you can show legal precedent that says you may resell intellectual property without the consent of the owner (as defined by the EULA), you are on dodgy ground. If you wish to group together to fund a test case (or you can find one that's already occurred), please let me know how it goes!
Scroggs
PS This will have no bearing on Pprune's prohibition of advertising!