As part of the EFF's 20th anniversary, it's hosting a screening of Nina Paley's Sita Sings the Blues, a movie we've spoken about quite a few times, due to both the copyright questions around it, and Nina's subsequent business model choices. As part of her appearance, Nina also created the latest of her "minute meme" animations for the EFF, this one about EULA's, and how they make you sign away more than you realize. We figured many of you might enjoy the short video:

MagicJack, a VoIP-dongle solution that I've used in the past, has a reputation as a product that actually works pretty well, but the company behind it has some serious problems. It's marketed aggressively on cable TV, has put misleading claims on its website, hides important things in the fine print and is not particularly good with customer service. Also, the software, once installed, is quite difficult to ever remove. In 2008, BoingBoing wrote a post detailing the shadier practices of MagicJack. Rather than doing the smart thing and improving those practices, MagicJack decided to sue BoingBoing. That was a mistake. It was a clear SLAPP case, and after MagicJack effectively had to admit that nothing in BoingBoing's post was actually wrong, the judge dismissed the case and ordered MagicJack to pay BoingBoing $50,000 in legal fees.

Thankfully, BoingBoing was helped by the fact that California has a strong Anti-SLAPP law -- something that the rest of the country could use. What's more telling (and interesting) than the dismissal, however, is that MagicJack had originally agreed to settle the lawsuit, and pay BoingBoing's legal costs (after the company's CEO realized that the case was a lost cause and -- he claimed -- his own lawyers had failed to properly notify him of California law), but backed out when BoingBoing wouldn't agree to keep the lawsuit and settlement confidential.

Again, that suggests a company that knows what it's doing is shady, at best, but rather than having any interest in improving the way it goes about its business, wants to keep things hidden.

I have to admit, I really don't understand why MagicJack feels the need to work this way. It's a decent product that should be able to sell on its own merits, explaining openly what it does, rather than hiding stuff in the fine print and falsely claiming how many people are signing up to use the device. Imagine if, instead of suing and losing and getting all of this negative publicity, the company had just cleaned up its act, been open about things, apologized for its earlier mistakes and focused on building a better business?

Just a few months ago we wrote about two separate lawsuits involving "browserwrap" or "clickwrap" agreements and whether or not they were enforceable. In the first one, an agreement was found to be enforceable even if the user on the website wasn't forced to view it, but it was just a link away. That seems to be the same view held by the court in a new ruling, that says that even if the agreement is on another page and the user never reads it, the fact that there's a link to it makes it enforceable. Frankly, I have a hard time seeing how that makes much sense, but it seems to be the way the courts are leaning. Of course, it's not all courts, though. Because the other case we wrote about a few months ago found exactly the opposite, saying that such a "browserwrap" agreement is not enforceable because the user was not adequately notified.

Back in October, we wrote about how the Philadelphia Eagles were trying to stop radio stations from doing promotional giveaways of tickets they had legally purchased. The team basically claims that the terms (which no one reads nor technically "agrees" to) on the back of the ticket forbid such uses of the tickets. Instead, clearly, the Eagles wanted to sell the rights to do promotional giveaways. Now there's a similar lawsuit involving Major League Soccer and FIFA. JJ points us to a lawsuit in which the organization that handles marketing for both soccer organizations is quite upset at Black & Decker for doing ticket giveaway promotions. The reason why they're so upset? B&D competitor Makita is "the official power tool" of both soccer leagues in the US. In this case, they're arguing trademark infringement and breach of contract, though both seem questionable. If it's an accurate promotion, such that B&D is literally giving away legally purchased tickets and merchandise, then as long as it doesn't suggest endorsement from the soccer leagues, there shouldn't be much confusion. As for the breach of contract, if B&D never agreed to the contract, it's hard to see how they can be held to it.

It's still not entirely clear what online agreements are actually enforceable and which aren't. We've seen cases go both ways, with a recent ruling even noting that terms that are a hyperlink away, rather than on the agreement page itself, may be enforceable. But the latest case, involving online retailer Overstock went in the other direction. A court found that Overstock's arbitration requirement was unenforceable, because, as "browserwrap," the user was not adequately notified. Eventually, it seems that someone's going to have to make it clear what sorts of online terms are actually enforceable (if any). Until then, we're going to see a lot more lawsuits like this one.

Boing Boing points us to something that I'm seriously hoping is a joke (please, please, please, someone tell me this is a joke/parody/Photoshop/etc.) -- involving Madison Square Park in NYC, which is supposedly now being managed by HSBC -- and thus (again, I'm hoping this is a joke) the lawyers have decided to put up giant end user license agreements (EULAs) that you supposedly agree to by entering the park:
[Photo: Rod Townsend] Assuming this does turn out to be fake (please!), what's scary is how unsurprising it would be -- and how many people seem to immediately assume that it is, in fact, true. We're so used to such EULAs in every day life, that seeing something like this just wouldn't strike all that many people as being obviously fake.

Now, if this is actually real, then, things are even worse. It's difficult to believe (by any stretch of the imagination) that such a thing is even remotely legally enforceable. Already there are questions about the legality of "clickthrough" EULAs, and one would have to imagine that the enforceability of a "walkby" EULA is even more in doubt. So, whether or not this is true, fake or a joke... it's a rather depressing sign (literally) of the times.

Update: In the comments, Shawn points out that this is likely associated with HSBC's "Soapbox" ad campaign, which only makes it marginally less ridiculous (but no more enforceable).

And here's a little Friday afternoon fun for you. The latest xkcd comic takes on the issue of automatic end user license agreements that seem so common these days: If they're going to be allowed, you might as well use them to your advantage.

A few weeks back, a company named Psystar made some news by offering to sell PCs with Mac OS X installed. This raised questions about how legit this offer was. After all, when Steve Jobs returned to Apple years back, he killed off all licensing deals that allowed any kind of Mac clones. However, the company has been showing off the clones it's created. Now, the questions are all about whether or not Psystar's actions are legal. The company (of course) says it is legal, and that it's buying a legal copy of the operating system and installing it on PC hardware. However, the end user license agreement (EULA) includes the following:

"This License allows you to install, use and run one (1) copy of the Apple Software on a single Apple-labeled computer at a time. You agree not to install, use or run the Apple Software on any non-Apple-labeled computer, or to enable others to do so."

That would seem to preclude what Psystar is doing. The News.com article above does an excellent job laying out the legal issues here. While the courts have found various clickthrough EULAs enforceable (even though no one -- including the companies themselves seem to read through them), it's possible that Psystar could attack the EULA from other directions. As the article notes, it could try to use the first sale doctrine (which allows you to resell copyrighted products you've bought) but that likely won't fly. What may be most effective (even if it's still a long shot under the law) is to claim that the EULA illegally "ties" the software to Apple's own hardware. However, making a claim about tying is quite complicated, and it seems unlikely that Psystar would prevail. This seems unfortunate for the market -- as getting some additional competition into the market would only help drive innovation. But, under the current law, it's difficult to see how Psystar can win.

We recently learned that customers of Verizon's FiOS service don't get to see the full terms of service they're agreeing to until after it's been installed. But, of course, no one actually reads those kinds of things, because if you did, you'd probably never agree to it. To help you out, the Associated Press took some time to read through various ISP end user license agreements (EULAs) and discovered that ISPs put a ton of ridiculous stuff in the fine print, which is basically to give them many different options to kick you off if they suddenly decide you've become a problem. Or, in some cases, it's because lawyers want to protect the ISPs from ridiculous lawsuits, which leads them to put in clauses warning customers that the ISP (in this case, Verizon) doesn't own the internet, so that people know they can't sue Verizon for something that happens online. Verizon recently removed that clause, apparently realizing that it was a bit extraneous.