Re:Ask HN: Is the EULA on my new $30k RED cinema camera legal?
by paulmd on Friday April 29, 2022 @05:01PM
(#31210554)
That's not a claim I made in my comment.
OP said "you're not entitled by law to take a hammer back if it doesn't work as you expect it to" and that's false, if it's sold as a hammer it needs to serve the ordinary purpose of a hammer, and that is covered by law in most jurisdictions (US/EU at the minimum).
Whether you could argue that a post-sale EULA (or EULA change) that renders the device inoperable for its ordinary purpose invokes merchantability is an interesting argument though, and that really gets back to "how much money do you have for lawyers", "how much are they willing to try and test their EULA's validity", etc. Tractors are probably an interesting example there (don't remember if it's been brought up here or not).
I think the big problem there is that merchantability is a claim against the merchant, and while you'd probably get your money back if you disagreed with the EULA a week after the sale, what happens if John Deere pushes an update a year after you buy the tractor and it's de-facto bricked at that point if you don't agree? The situation with software makes the whole thing so much more complicated, and the law is different there around ownership in general (you don't own the software, you have a license to use the software, but the tractor doesn't work without the software either).
It's shitty and the "ownership" situation with software really needs significant reform (that will never happen in the US). Ownership of a software license needs to be brought closer to ownership of a physical good, but that will break the business models of a lot of companies who will lobby to make sure that never happens.
OP said "you're not entitled by law to take a hammer back if it doesn't work as you expect it to" and that's false, if it's sold as a hammer it needs to serve the ordinary purpose of a hammer, and that is covered by law in most jurisdictions (US/EU at the minimum).
Whether you could argue that a post-sale EULA (or EULA change) that renders the device inoperable for its ordinary purpose invokes merchantability is an interesting argument though, and that really gets back to "how much money do you have for lawyers", "how much are they willing to try and test their EULA's validity", etc. Tractors are probably an interesting example there (don't remember if it's been brought up here or not).
I think the big problem there is that merchantability is a claim against the merchant, and while you'd probably get your money back if you disagreed with the EULA a week after the sale, what happens if John Deere pushes an update a year after you buy the tractor and it's de-facto bricked at that point if you don't agree? The situation with software makes the whole thing so much more complicated, and the law is different there around ownership in general (you don't own the software, you have a license to use the software, but the tractor doesn't work without the software either).
It's shitty and the "ownership" situation with software really needs significant reform (that will never happen in the US). Ownership of a software license needs to be brought closer to ownership of a physical good, but that will break the business models of a lot of companies who will lobby to make sure that never happens.