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Does Copyright Give Companies The Right To Search Your Home And Computer?

from the it-shouldn't dept

One reason why copyright has become so important in the digital age is that it applies to the software that many of us use routinely on our smartphones, tablets and computers. In order to run those programs, you must have a license of some kind (unless the software is in the public domain, which rarely applies to modern code). The need for a license is why we must agree to terms and conditions when we install new software. On Twitter, Alvar C.H. Freude noticed something interesting in the software licence agreement for Capture One: "world-class tools for editing, organizing and working with photos" according to the Danish company that makes it (found via Wolfie Christl). The license begins by warning:

if you do not agree to the terms of this license, you may not install or use the software but should promptly return the software to the place where you obtained it for a refund.

That's normal enough, and merely reflects the power of copyright holders to impose "take it or leave it" conditions on users. Less common is the following:

Capture One or a third-party designated by Capture One in its sole discretion has the right to verify your compliance with this License at any time upon request including without limitation to request information regarding your installation and/or use of the Software and/or to perform on-site investigations of your installation and use of the Software.

If you use Capture One, you must provide "without limitation access to your premises, IT systems on which the Software is installed", and "Capture One or an Auditor may decide in their sole discretion to apply software search tools in accordance with audits."

That is, thanks to copyright, a company is perfectly able to demand the right to access a user's premises, the computer systems they use, and to run search tools on that system as part of an audit. Although this applies to business premises, there's no reason a software license could not demand the same right to access somebody's home. In fact, there are really no limits on what may be required. You're not obliged to agree to such terms, but most people do, often without even checking the details.

The fact that such requirements are possible shows how far copyright has strayed from the claimed purpose of protecting creators and promoting creativity. Copyright has mutated into a monster because it was never designed to regulate activities, as it does with software, just static objects like books and drawings.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Originally published on the Walled Culture blog.

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Filed Under: contract, copyright, license, searches
Companies: capture one


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  • identicon
    Anonymous Coward, 15 Nov 2021 @ 1:41pm

    I have it on good authority that outside of Belgium such clauses are unenforceable. So all you have to do is tell them to get lost. No matter what the contract says, they have no authority to do anything other than file a beach of contract in an appropriate court of law.

    reply to this | link to this | view in chronology ]

    • icon
      Space5000 (profile), 15 Nov 2021 @ 2:21pm

      Re:

      Though if such clauses are unenforceable, don't they lose the right to sue people over "breach of contract" too, over unenforceable terms? If they can still sue you over such terms, it's kinda as bad.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 15 Nov 2021 @ 2:29pm

        Re: Re:

        Unless the law is completely insane(I know, try to restrain your laughter) then suing over an unenforceable clause would almost have to be prohibited, otherwise the clause is still very much in effect the only thing that's changed is the method for enforcing violations.

        reply to this | link to this | view in chronology ]

    • icon
      That Anonymous Coward (profile), 15 Nov 2021 @ 11:49pm

      Re:

      Any idea how much it costs to defend an unenforceable law in other jurisdictions where it hasn't been ruled as unenforceable yet?

      reply to this | link to this | view in chronology ]

  • icon
    redhill_qik (profile), 15 Nov 2021 @ 1:45pm

    Standard enterprise license tools

    Not sure why the shock and outrage about this. I have seen these installation audit terms in contracts going back decades. No company is going to bother a home user that might have installed it on more than 1 PC, but a 100+ person company that might have bought a single license and then installed it on everyone's PC would have the audit provision enforced if there is sufficient reason to suspect that the license has been breached.

    This might be triggered if phone-home numbers aren't a match for the number of seats that were purchased, but in most cases it is when a former employee becomes a whistleblower and turns the company into to the vendor.

    reply to this | link to this | view in chronology ]

    • identicon
      David, 15 Nov 2021 @ 2:39pm

      Re: Standard enterprise license tools

      "No company is going to bother" is the lousiest excuse for obscene licensing terms that I ever heard. If a company does not want my business, it is not going to get it and I'll make sure to tell the seller why I return the ware.

      I once bought a score of Bach's Toccata and Fugue BWV565 because I wanted to play it on accordion. The score contained a notice on the first page that performances were required to be unchanged from what was in the score and had to prominently meantioned the version used in any performance. The change with regard to Bach's autograph were proposals which organ section (not even indivdual registers) to use. Puh-lease.

      Ridiculous and definitely unenforceable as this crap was, I returned the score, let both the publisher and seller know why (I could not even have made an accordion arrangement or put a recording of mine online while heeding those terms that had absolutely no place in an unmodified centuries-old work) and what I thought of such terms, and sent my business elsewhere.

      "Oh surely they wouldn't" is the lousiest idea ever and one of the most important facilitators of the worst atrocities in human history, long before Shakespeare made it a core theme of "The Merchant of Venice".

      If people threaten you with outlandish consequences, don't give them your money or business, and don't vote them into office. Whether or not you believe them to be capable of following through with their threats, just giving them the excuse "but people knew what this meant and accepted it" turns you into an abettor.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 15 Nov 2021 @ 9:17pm

      Re: Standard enterprise license tools

      No company is going to bother a home user that might have installed it on more than 1 PC

      Then everything changed when the RIAA Nation attacked.

      reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 16 Nov 2021 @ 12:26am

      Re: Standard enterprise license tools

      "I have seen these installation audit terms in contracts going back decades."

      Bad ones, then. I've done contract work for years and I can tell you that the cookie-cutter US templates we sometimes receive get laughed out instantly and replaced with something which doesn't deliver either party at the sole behest of the good will of the other one.

      Most contracts do in fact contain a third party audit clause which calls for either party to submit to an audit of distinctive fiscal data carried out by an impartial recognized audit company under very strict NDA.

      No contract - ever not written in bad faith in the first place contains right to unmitigated system access of a client. In fact I strongly suspect that in most european territories even trying to exercise such a clause is valid grounds for a fraud charge or worse by far, a flagrant violation of GDPR.

      No, the wording in the OP is far from standard. This is someone grasping for the sky and hoping the clause will, should Capture One ever try to exercise it, intimidate the client into instant compliance.

      The thing is, it's likely the client in question will be holding personal data of entities and people they have no right to deliver to any third party and them yielding such access could land both the client and Capture One in very hot water with the ECJ.

      reply to this | link to this | view in chronology ]

      • identicon
        Rocky, 16 Nov 2021 @ 3:45am

        Re: Re: Standard enterprise license tools

        Another thing to take into consideration is that if you don't agree with the license and don't install their software, Capture One can't then point to the license and argue that you have agreed to the license and they then have the right to audit you. If one party doesn't agree to the contract-terms there is no contract.

        reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 18 Nov 2021 @ 12:38am

          Re: Re: Re: Standard enterprise license tools

          "If one party doesn't agree to the contract-terms there is no contract."

          That, and there's something which needs saying about contracts - no matter what the writing says you can't, as a signing party, abandon those rights which are non-dispositive. However, the law is scarce on coming down on fraudulent attempts to do just that by putting such terms into a contract anyway.

          Most people just don't read the fine print and, if those clauses are pointed out to them, too shaky on their actual rights to doubt them, contributing to the uncertainty among consumers as to which rights they even have regarding their own property.

          Something which shady companies are all too happy to abuse, and no few of which doing so by adding a completely redundant bluetooth chip to a piece of hardware and invoke the anti-circumvention clauses of copyright law as the mechanism to intimidate or indenture hapless consumers in their purchase of what used to be considered a physical piece of property fully in the ownership of the purchasing party.

          reply to this | link to this | view in chronology ]

  • icon
    Stephen T. Stone (profile), 15 Nov 2021 @ 1:57pm

    I say let’s see them produce a court order to make that inspection first.

    reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 15 Nov 2021 @ 6:25pm

      Re:

      They don’t need a court order. Court orders are for people who want to go on your property without permission, but if you sign that contract you have given them that permission.

      It’s not trespassing for someone to go on your property WITH your permission.

      reply to this | link to this | view in chronology ]

      • icon
        Bill Silverstein (profile), 15 Nov 2021 @ 9:30pm

        Re:Wrong, sort of.

        The contract gives them permission. However, you may prevent them from doing this. They would then have to get a court order to permit them to do come on to your property.

        reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 16 Nov 2021 @ 12:33am

          Re: Re:Wrong, sort of.

          "They would then have to get a court order to permit them to do come on to your property."

          Which is likely not to be forthcoming. The court might grant a third party audit of fiscal data and processes, but given that the client may be holding confidential data of other, unaffiliated parties, that could open both Capture One and the client they're investigating to lawsuits and/or penal charges.

          reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 16 Nov 2021 @ 12:31am

        Re: Re:

        "...but if you sign that contract you have given them that permission."

        You really haven't. In most cases that would be like you, leasing a car, then signing to a third party that they shall have unmitigated access to that car. Something you can't promise in the first place.

        Given what Capture One's clients do - handle the data of other people - it is likely that any attempt by Capture One to exercise their rights would land both parties in very hot legal water. GDPR is not a joke.

        Anyone receiving a bullshit contract like that needs to understand that it's likely they shouldn't agree to violate the law of the land in writing. And having signed to that anyway both parties should realize this is a dangerous clause to try to exercise.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 16 Nov 2021 @ 8:27am

        Re: Re:

        The contract won't unlock a door.

        reply to this | link to this | view in chronology ]

      • icon
        btr1701 (profile), 16 Nov 2021 @ 12:24pm

        Re: Re:

        Someone tries to force his way into my house brandishing his copy of a EULA, he'll meet my 12-gauge.

        We'll see which one wins that skirmish.

        It’s not trespassing for someone to go on your property WITH your permission.

        One of the rights in the bundle that comes with owning property is that the owner can rescind permission at any time.

        If I give someone permission to come into my home to attend a party and he gets drunk and starts acting like boorish asshole, I don't have to let him remain because I gave him permission to enter when arrived. I can rescind that permission and kick his butt out.

        reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 17 Nov 2021 @ 1:03am

          Re: Re: Re:

          "One of the rights in the bundle that comes with owning property is that the owner can rescind permission at any time."

          Courtesy mainly of the alt-right but also increasingly by certain democrats that right is increasingly eroded as long as it concerns the digital. What you bought and paid for is, by the going rhetoric, not yours insofar as deciding who you need to allow entry or not.

          And once that principle that property rights are negotiable is established online, the precedence is already set to do the same in the real world.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Nov 2021 @ 5:23pm

      Re:

      "one day I got a call that there were armed marshals at my door talking about software license compliance [...] my lawyer told me it could be pretty bad."

      That raid was on behalf of Microsoft. Assuming the lawyer was halfway competent, either they already had a court order or things are somehow more complicated than you think.

      reply to this | link to this | view in chronology ]

  • icon
    Space5000 (profile), 15 Nov 2021 @ 2:09pm

    Hopefully Certain Terms Are Not Legal

    If I pay for one single payment of a fee for a lawful software (usually when physical), then I deserve to get property rights over it and that every term of a contract trying to control it needs to be held as null and void. I even heard that terms like that just can't be lawful, but of course I am skeptical over that.

    I remember finding this but I don't see much discussion about it outside of it: https://linustechtips.com/topic/953835-you-own-the-software-that-you-purchase-and-any-claims-otherwi se-are-urban-myth-or-corporate-propaganda

    reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 16 Nov 2021 @ 7:35am

      Re: Hopefully Certain Terms Are Not Legal

      If I pay for one single payment of a fee for a lawful software (usually when physical), then I deserve to get property rights over it

      Well that's the thing about copyright. You absolutely have physical property rights over any object you bought (such as a book or CD-ROM), but you only have a license to the copyrighted material on or in it, because that isn't a physical object. That's why sellers can get away with putting these conditions on the sale.

      reply to this | link to this | view in chronology ]

      • icon
        Space5000 (profile), 16 Nov 2021 @ 11:36am

        Re: Re: Hopefully Certain Terms Are Not Legal

        If I recall right, Copyright law seems to recognize that you can actually own copies of I think lawful copyrighted software. There already is copyright limitations in countries that allow users to properly copy software in order to run it.

        reply to this | link to this | view in chronology ]

        • icon
          nasch (profile), 16 Nov 2021 @ 12:08pm

          Re: Re: Re: Hopefully Certain Terms Are Not Legal

          You are allowed to make copies for backup, as well as the computer making whatever copies it does in the normal course of operation (for example, copying the code into RAM isn't a copyright violation). Maybe that is what you have in mind.

          reply to this | link to this | view in chronology ]

          • icon
            Space5000 (profile), 16 Nov 2021 @ 4:08pm

            Re: Re: Re: Re: Hopefully Certain Terms Are Not Legal

            Yeah that's what I meant I mean.

            Physical copies of software is still physical as it's made up of magnets, like how a painting is made up of some other minerals. Copyright law seems to recognize that it's possible for people to own particular copies of Copyrighted content and such law uses the RAM doctrine for software.

            An enforceable contract limiting the physical product would then likely effect the "ownership" element of the limitation, but in the end the issue is due to a contract having power over a physical product that was given away after payment, which I wonder can truly be enforceable.

            reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 15 Nov 2021 @ 2:24pm

    Oh look, other companies and/or a HUGE market opportunity...

    Well that's certainly a company offering software no sane person or business should be interested in. I mean what could possibly go wrong with having a third party do an on demand, on-site audit of your systems looking for any possible infringement?

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      icon
      tp (profile), 16 Nov 2021 @ 2:37am

      Re: Oh look, other companies and/or a HUGE market opportunity...

      I mean what could possibly go wrong with having a third party do an on demand, on-site audit of your systems looking for any possible infringement?

      Maybe your computer systems shouldn't be filled with pictures of Madonna without her permission? You aren't yet keeping your systems clean like the audit would happen tomorrow morning 9am when you're still sleeping?

      reply to this | link to this | view in chronology ]

      • icon
        Stephen T. Stone (profile), 16 Nov 2021 @ 2:44am

        The specificity of that Madonna reference leads me to believe it’s more an admission of your own “guilt” than anything else.

        reply to this | link to this | view in chronology ]

        • This comment has been flagged by the community. Click here to show it
          icon
          tp (profile), 16 Nov 2021 @ 3:04am

          Re:

          The specificity of that Madonna reference leads me to believe

          You can believe anything you want, most of it is just broken beyond repair. You still cannot recognize important information from non-relevant factors. Specificity just means there's some history behind it, you cannot really give out guilty verdicts based on such information. Easy way to avoid such accusations is to mention that the Madonna problem isn't actually in our system, but someone else's. So your guilty verdict is pointed to wrong direction. I would assume that the direction of guilty arrow would be one of the key parameters when you're accusing people of copyright infringement. Basically unfounded accusations shouldn't be given forward, and you yourself have stuff to explain when you cannot point your arrows to right direction.

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 16 Nov 2021 @ 12:03pm

        Re: Re: Oh look, another turd in bowl...

        Ah TP, so named because of the thing needed to clean up after you post.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 16 Nov 2021 @ 4:49pm

          Re: Re: Re: Oh look, another turd in bowl...

          Not really surprise. TP is the sort of copyright fanatic who thinks people should be selling their organs to pay for his contributions to society.

          reply to this | link to this | view in chronology ]

          • icon
            tp (profile), 17 Nov 2021 @ 2:33am

            Re: Re: Re: Re: Oh look, another turd in bowl...

            TP is the sort of copyright fanatic who thinks people should be selling their organs to pay for his contributions to society.

            Guess that would be better than the current situation where contributions are not met with anything other than harrassment and ridicule.

            Or if you think the contributions have already been compensated, I can point out that $45 that is the total revenue associated to the activity, isn't enough to buy a movie ticket.

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 17 Nov 2021 @ 5:03am

              Re: Re: Re: Re: Re: Oh look, another turd in bowl...

              Guess that would be better than the current situation where contributions are not met with anything other than harrassment and ridicule.

              No, as creating something does come with a guarantee of adulation and income. Indeed the outcome depends on what other people think of the creation, and if that differs significantly from the creators view, ridicule follows, along with harassment when the creator keeps on trolling the same site.

              reply to this | link to this | view in chronology ]

            • icon
              Toom1275 (profile), 17 Nov 2021 @ 11:22am

              Re: Re: Re: Re: Re: Oh look, another turd in bowl...

              contributions are not met with anything other than harrassment and ridicule.

              [Hallucinates events not present in the real world]

              reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 17 Nov 2021 @ 7:14pm

              Re: Re: Re: Re: Re: Oh look, another turd in bowl...

              where contributions are not met with anything other than harrassment and ridicule

              The obvious psychopathy of comparing anonymized embarrassment to having your vital organs taken away from you... exactly what contributions do you think you've made to wider society, to the point where you require literal pounds of flesh to be paid in tribute to you? Meshpage is free to download software.

              Aside from constantly trying to hawk your freely available wares here, there is nothing that merits you getting more money than you asked for. And if $45 isn't enough to buy a single movie ticket on its own, your local theater is ripping you off. Which is no excuse to rip us off.

              reply to this | link to this | view in chronology ]

              • icon
                tp (profile), 18 Nov 2021 @ 4:47am

                Re: Re: Re: Re: Re: Re: Oh look, another turd in bowl...

                Which is no excuse to rip us off.

                So you're calling $45 for 8 years of hard work to be ripping you off? You actually wanted the combined effort of the whole world for free?

                reply to this | link to this | view in chronology ]

                • identicon
                  Anonymous Coward, 18 Nov 2021 @ 5:47am

                  Re: Re: Re: Re: Re: Re: Re: Oh look, another turd in bowl...

                  800 years of hard work would not guarantee that you had anything that people wanted and would pay you for. Writing software like meshpages is speculation, and like all speculation can end up with you losing all the money and time invested.

                  reply to this | link to this | view in chronology ]

                  • identicon
                    Rocky, 18 Nov 2021 @ 7:22am

                    tp has amply demonstrated through his various arguments that he has no clue how the price of a product is determined by what people are actually willing to pay for it. And some products are so shitty or they come with so much baggage that people aren't interested in them even though they are free.

                    reply to this | link to this | view in chronology ]

                • icon
                  Scary Devil Monastery (profile), 19 Nov 2021 @ 3:03am

                  Re: Re: Re: Re: Re: Re: Re: Oh look, another turd in bowl...

                  "You actually wanted the combined effort of the whole world for free?"

                  You mean, like Shakespeare, Homer, Beethoven, Mozart...and the other 99,99% of human culture?

                  tp, the sooner you realize that what you keep arguing for is an aberration which was never true, anywhere in the real world, the sooner you can formulate a response grounded in empirical fact.

                  reply to this | link to this | view in chronology ]

                • identicon
                  Anonymous Coward, 19 Nov 2021 @ 6:23am

                  Re: Re: Re: Re: Re: Re: Re: Oh look, another turd in bowl...

                  So you're calling $45 for 8 years of hard work to be ripping you off?

                  Your software is freely available for the world to use. Getting $45 in exchange for stuff you give away without a price tag is what I call surprising. What I call "ripping people off" is getting angry that people aren't giving you more money than you asked for. Do you pay a higher price for your groceries than is actually printed on the price tag? If you don't, aren't you ripping off the supermarket by your own rules?

                  For that matter, why the hell does it bother you? You yourself said that you were playing the long game. That this is entirely part of your business plan. You're only supposed to cash Meshpage in when you retire. I don't even need to make this shit up, this is literally the excuse you used when you got called out on your terrible business sense. Why are you angry that you can't cash out now? If anything, $45 over 8 years is $45 more than you expected to make.

                  You actually wanted the combined effort of the whole world for free?

                  One dumbass in Finland is not the whole world. You're the one who wants the combined money of the whole world for free. Get over yourself, Tero.

                  reply to this | link to this | view in chronology ]

  • identicon
    Rekrul, 15 Nov 2021 @ 2:35pm

    Assuming that an EULA is valid and enforceable, who decides how far a company can go in its terms?

    If I produce a piece of software and then bury a clause in the EULA saying that anyone using that software must sign over their home to me upon my asking, is that valid? If not, why? What makes that invalid, but everything else in it is valid?

    I assume that if a lawyer drew up a contract stating that a person was going to hand over their home in exchange for a piece of software and both parties agreed to it, that would be legal and binding. So if an EULA is supposedly a binding legal contract that the user agrees to by using the software, why are there any limits on what can be put in one?

    reply to this | link to this | view in chronology ]

    • icon
      basstabs (profile), 15 Nov 2021 @ 3:02pm

      Re:

      It's illegal (also known as fraud) to get someone to sign a contract which is intentionally misleading or otherwise attempting to trick someone on purpose. In this instance, it's clear that your intention is to steal people's homes by selling them software with a purposefully obtuse contract you know they will not read. That's just fraud. Contracts are only legal and binding if they are, well, legal.

      Obligatory IANAL. Source: https://www.law.cornell.edu/uscode/text/7/6b

      reply to this | link to this | view in chronology ]

      • identicon
        David, 15 Nov 2021 @ 3:24pm

        Re: Re:

        I don't know how it is in the States, but over here (in Germany) a contract puts down the terms of a mutual agreement in writing. For contracts that are actively negotiated between two parties on the basis of individual terms, that places few limitations except that the government is not interested in backing crimes, so agreements to criminal acts are not enforceable by legal means.

        For contracts unilaterally written up by one party with a more or less implied agreement of the other (like the sales conditions of a shop), this implied agreement can only be assumed for conditions that are reasonable and customary. If people routinely agree to outlandish terms, those terms can eventually be considered customary, leading to an erosion of reasonableness.

        reply to this | link to this | view in chronology ]

        • icon
          Eldakka (profile), 15 Nov 2021 @ 5:42pm

          Re: Re: Re:

          For contracts unilaterally written up by one party with a more or less implied agreement of the other (like the sales conditions of a shop), this implied agreement can only be assumed for conditions that are reasonable and customary. If people routinely agree to outlandish terms, those terms can eventually be considered customary, leading to an erosion of reasonableness.

          Same in Australia, which is why such contracts also usually include a 'severability' clause, that is, such an offending clause does not invalidate the entire contract, just that particular invalid clause is 'severed' from the contract, with the rest of it remaining valid (barring any other invalide caluses that is).

          reply to this | link to this | view in chronology ]

      • identicon
        Rekrul, 16 Nov 2021 @ 10:16am

        Re: Re:

        It's illegal (also known as fraud) to get someone to sign a contract which is intentionally misleading or otherwise attempting to trick someone on purpose. In this instance, it's clear that your intention is to steal people's homes by selling them software with a purposefully obtuse contract you know they will not read. That's just fraud. Contracts are only legal and binding if they are, well, legal.

        OK, so what if I put that clause right at the top where they're sure to see it, but they assume that it's too ridiculous to be true, so they ignore it? Is it enforceable then?

        reply to this | link to this | view in chronology ]

  • icon
    GHB (profile), 15 Nov 2021 @ 2:41pm

    Phone homing and suveillanceware

    reply to this | link to this | view in chronology ]

    • icon
      PartTimeZombie (profile), 15 Nov 2021 @ 6:48pm

      Re: Phone homing and suveillanceware

      I've used Capture One, and it is a long way from being "World Leading".
      It does do what it says it does, but not that well, and the GIMP is better (IMHO)

      reply to this | link to this | view in chronology ]

  • icon
    katsai (profile), 15 Nov 2021 @ 3:00pm

    Licensing audits in the business world are very common. Microsoft, Adobe, VMware, Kaseya and a whole host of others that I've worked with over the years have these provisions. Usually it boils down to them having the company run a tool that checks for installed instances of the software on corporate networks, and compares that to the number of seats the company has licensed for use. If the company is out of compliance, they work with them to purchase enough licenses to cover their level of utilization. Sometimes companies even get a price break on true-up. The "without limitation" part of this particular license agreement is definitely a little concerning, but the practice of license auditing is an every day part of the business software world.

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 16 Nov 2021 @ 12:42am

      Re:

      "The "without limitation" part of this particular license agreement is definitely a little concerning, but the practice of license auditing is an every day part of the business software world."

      "A little concerning"?

      Good grief, man, it's the metaphorical difference between a provision which allows you to check someone's car tires for sufficient air pressure and one which allows you to dismantle their car at will - and go through the wallet left in the coat, check how many condoms you have left in your pocket, and jot down the number of your s.o.

      "without limitation" is an absolute which I don't see in all that many contracts and usually restricted to; termination clauses about how to sever business relations after a party has been found in money laundering or bribery charges; trademark provisions where it needs to be underlined that the original owner of a TM remains the original owner; and similar.

      No one with a working legal department or contract team would let shit like this slide.

      reply to this | link to this | view in chronology ]

  • icon
    basstabs (profile), 15 Nov 2021 @ 3:07pm

    There's no real problem with this in my opinion. The problem would be if this is legally enforceable in any jurisdiction, which even then it's an issue of the law being a disgusting, broken mess rather than an issue of what is allowed to be written into a contract.

    Getting into the business of legislating what you may or may not put in a contract is prior restraint. It seems to me that determining whether a contract is enforceable is the proper place to resolve issues like this rather than restricting what can even be said in a contract.

    reply to this | link to this | view in chronology ]

    • icon
      sumgai (profile), 15 Nov 2021 @ 3:45pm

      Re:

      ... what you may or may not put in a contract is prior restraint

      ... what can even be said in a contract

      Errr, no. A contract is not a matter or means of speech, it's an agreement between two parties, and it should be obvious that such is not a place for stating opinions. The law most definitely precludes certain terms and/or conditions from being inserted into any contract for the simple reason that the government is tasked with preventing fraud. Unless you can properly counter the following maxim of law, then it stands as stated thusly:

      A contract or other agreement between two parties shall be fair and equitable to both parties, and shall be enforceable by both parties.

      Obviously there are contracts written every day that do not seem to meet those criteria, but if a party felt wronged, and took it into court, they just might be surprised at what a "disinterested" party would think of the contract. While it is true that America as a nation has an ever-growing proportion of imbeciles, the law simply must assume that all Americans are equally capable of reading a proposed contract, and deciding for themselves it if is fair and equitable.

      I can't speak for the laws of other countries beside the USA, things might be different in those lands.

      tl;dr:
      Set a limit on how much you "afford" to lose. Any contract you enter into for more than that amount, spend some quality time with a lawyer.

      reply to this | link to this | view in chronology ]

      • icon
        basstabs (profile), 15 Nov 2021 @ 6:50pm

        Re: Re:

        I think this boils down to a philosophical discussion about whether or not a contract needs to be enforceable to be a contract. I don't really care one way or the other. Here, by contracts, I mean documents which self-proclaim themselves to be contracts, regardless of if they have any legal merit. If we want to define contracts to only be those documents which are both legally binding and enforceable, then that's a different definition.

        I don't necessarily disagree with your maxim as being good practice for law, but it's fairly obvious that in the US contracts function relatively independently of whether or not they follow this principle. For example: NFL players can be waived pretty much any time and have their contracts voided, while they have no similar right to leave a team and join another at their convenience.

        My landlord can evict me before the end of my lease, but I can't necessarily leave of my own volition without facing significant financial penalties. (In some states, the landlord does not even have a duty to re-rent after I leave and can continue billing me the full amount.)

        Whether or not a judge or jury would agree that a contract is fair or unfair is irrelevant if one party cannot afford to pay for a civil suit to make that determination. A contract can only be fair and equitable to both parties if the legal system affords the same opportunities for legal challenges to both parties, but that is simply not how things work here. Money talks. So regardless of if it's a good principle, it's clearly not a principle that's true of the US legal system.

        What I'm saying is that it's prior restraint for the government to say, "Hey, Capture One, you're not allowed to say that you'll come into someone's house to inspect their installation." It's NOT prior restraint for the government to say "You're not allowed to go into someone's house to inspect their installation, and you can't make the sales of your software contingent upon that, so this EULA is not enforceable."

        Capture One can say they will, and they can call that a contract, but that doesn't mean that they have the legal right to follow through on what is said inside, or that it is a contract in a legal sense. Just like a lawyer can legally send you a threatening letter with a gross mischaracterization of what the law says. (For example, a lawyer sending a North Face trademark letter.)

        reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 18 Nov 2021 @ 12:42am

          Re: Re: Re:

          "I think this boils down to a philosophical discussion about whether or not a contract needs to be enforceable to be a contract. I don't really care one way or the other."

          You probably should care. I mean, sure, in theory an unenforceable contract will be discovered to be invalid upon closer consideration...
          ...but for the vast majority of people, discovering that said contract is unenforceable and thus invalid in the first place will require expensive legal representation most can't really afford.

          If a "contract" becomes a legitimate way to perform what amounts to extortion, intimidation and fraud, should that still be considered a viable commercial interaction, or should it fall under the fraud clause of applicable penal codes?

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Nov 2021 @ 2:25am

      Re:

      It seems to me that determining whether a contract is enforceable is the proper place to resolve issues like this rather than restricting what can even be said in a contract

      Even when its a shrink wrap contract, and your ability to challenge terms depends on your ability to pay the lawyers more than the software cost?

      reply to this | link to this | view in chronology ]

      • icon
        basstabs (profile), 16 Nov 2021 @ 7:13am

        Re: Re:

        Well, the class-based civil judicial system is an issue in and of itself. Legislating contract language wouldn’t really help: the wealthy can straight up break contracts and still not lose in court because you can’t afford to sue them.

        reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 15 Nov 2021 @ 3:32pm

    Oooops!

    Looks like we just got nailed with ransomware! What a strange coincidence. Sure wish we could decrypt it for you...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Nov 2021 @ 4:18pm

    unfortunately such abuses of human rights via are widespread in east-Asian markets... Synology even managed to export them in the entire world.

    Anyone who ever used one of their NAS storage devices will have at one point been presented with their EULA during the initial setup and just clicked through it without reading it much ...
    but that EULA is almost a literal bomb to anyone that takes the time to read it, its section 7 says:

    Section 7. Audit. Synology will have the right to audit your compliance with the terms of this EULA. You agree to grant Synology a right to access to your facilities, equipment, books, records and documents and to otherwise reasonably cooperate with Synology in order to facilitate any such audit by Synology or its agent authorized by Synology.

    Also, note that in this case "agent authorized by Synology" is implied to also mean the NAS firmware itself: if it is ever connected to the internet and the NAS device serial number is included on a "special interest list" it could be remotely commanded from their servers to perform that "search" of any "facilities, equipment, books, records and documents" in any internal networks it can access ... and the nasty part of this is that the unsuspecting buyer has already agreed to this invasion when they click "i agree" on the EULA that is presented by the NAS initial setup wizard.

    https://web.archive.org/web/https://www.synology.com/en-global/company/legal/terms_EULA

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 16 Nov 2021 @ 12:48am

      Re:

      "Section 7. Audit. Synology will have the right to audit your compliance with the terms of this EULA. You agree to grant Synology a right to access to your facilities, equipment, books, records and documents and to otherwise reasonably cooperate with Synology in order to facilitate any such audit by Synology or its agent authorized by Synology."

      Note that this is actually far less outrageous than what's described in the OP. If Synology shows up to demand access you can easily dispute them on the word "reasonable". I.e. you can state that you will grant them selective access in the form of an accredited third-party auditor under an NDA whose only task is to report back only what Synology specifically needs to know.

      The OP, otoh, describes the situation "without limitation". Meaning they can, by contract, walk a mob of thugs into your home with crowbars to pry open the walls looking for the secret password, force access to your computer, and - without limits - use any and all information found therein for their own purposes.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Nov 2021 @ 4:49pm

    work for a company with one of those in the license

    I think this is only there for our big customers, in case they want to try to get away with something bold. We're much more likely to just end up cancelling and refunding your license if you don't allow us to inspect the system, which most of these people already agreed to do when they asked us for technical support. (If you're not going to pay for the license, don't ask for hands-on tech support from the company, lol.)

    Shoutout to the dude in Tehran who would have been fine by me if all he had been doing was giving away licenses to circumvent US sanctions against Iran, but instead he made a business out of selling his own licenses to our software and those of companies who rely on our platform, so I let management know. Also, he put backdoors on all the systems he installed. I think I caught his people actively deleting shit while I was investigating what he tried to change that time.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Nov 2021 @ 4:50pm

    That's not why it's a monster, not because it was originally never designed for software but because it is designed by monsters by help of their cronies in government to serve their greed at expense of the public and it as it is now, is not designed to serve the public but designed by them to increase their businesses' profits.
    Copyright holders and creators as a class never should been stakeholders. The public should be the only stakeholders when considering digital copyright policies because their free speech rights, actual property rights, and privacy rights are at stake and they should be the ones rightly profiting. Creators should not been made entitled to profits but only made entitled to make profit from their creations And with privileged people being such so pigs nowadays, that's what I believe why the thing with copyrights is so a mess. If the public was the only stakeholders and copyright policies are empirically driven then maybe copyrights would work well for software who knows; but we never going to know, are we?

    Creators and their corporate masters never had this so good... free copyrights, no need to register, lifetime plus 70 years or whennot, and they take in all the profits. As a member of the public, my taxes go to pay to subsidize their business models in costs of administrating and policing and whatnot and my freedoms are significantly and increasingly curtailed for their sakes. So....
    where's my profits? Artificially inflated high prices, onerous DRMs, culture locked up behind paywall for my lifetime and my children's lifetime and now this invasive shit? That's my reward for propping up their business models?

    What to come? What more ugly mutations of this copyright monster will we going to be seeing in the future? I wonder. Anyone want to make predictions? Monitoring of private computers by corporations and perhaps Big Brother by proxy going to be a regular thing now? As we apparently dont own our software anymore, and hardware and software increasingly become inseparable as an increasing integral package like it's going with smartphones, I wonder will computers be owned by the corporations futher down the road and we will be paying for licenses to them to use them as well?

    Bet this danish software company is exploiting their captive customers futher by selling their personal information they gather from monitoring their computers to third parties. After all, ethics are not mandatory in this kind of business, right?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Nov 2021 @ 5:55pm

    Amend it...

    Just take that same notice, strike out the clause and make a note of the amendment on it... now you have an agreement that you can live with :p

    Feel free to go ahead and make yourself a king or prince while you're at it.

    reply to this | link to this | view in chronology ]

  • icon
    sumgai (profile), 15 Nov 2021 @ 6:43pm

    Well, first, anyone just showing up on my doorstep with a demand like the above had best be prepared to argue with my two favorite lawyers, Mr. Smith and Mr. Wesson.

    Second, any ex parte motion to gain "legal" access to my home is going to be met with a top-flight lawyer asking the signing judge why I wasn't afforded a say in the matter at bar.

    Next, while contesting that motion, I'd politely ask the judge how they've proven that I have NOT stopped using said software, and deleted it from my computer. (cue the pregnant pause....) For extra credit, I'd start giving the judge a lesson on how to use iptables. 15 or 20 seconds of glazed eyes later, I'd be outta there.

    And finally..... I'm not too sure just how many "reasonable people" in this country would consider that using a software package is somehow equitable with an unplanned home invasion.

    reply to this | link to this | view in chronology ]

  • icon
    Lord Lidl of Cheem (profile), 15 Nov 2021 @ 7:22pm

    Click to Accept Cookies

    "This site, like most other sites on the web, uses cookies. For more information, see our privacy policy." [Got It]

    click

    By accepting this cookie you hereby acknowledge to grant Lord Lidl one wish (of his choosing) at any time, any place and under any circumstance.
    Thankyou.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Nov 2021 @ 4:15am

      You Agree to terms unseen...

      Hotel Wi-fi agreement:
      (paraphrased): you are responsible for the security of your device, and don't do anything illegal. By hitting 'accept' you agree to our terms of service and privacy policy.

      Followed by an accept button, with links to "terms of service" and "privacy policy".

      ... clicking on either the terms of service or privacy policy links puts you on the same web page... because you hadn't yet accepted their terms of service and privacy policy and so can't "browse" off the accept page.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Nov 2021 @ 8:08pm

    Many company's use software like photoshop , desktop publish programs, 3 d design video editing etc not every program available as open source is as easy to use or has all the options programs sold per copy or per user
    There's usually a cost per user licence or an annual licence cost when most programs are now sold as digital downloads I think company's have a right to check how many users or pcs have the program installed if the buyer does not like the conditions on the licence buy something else or look at open source options

    reply to this | link to this | view in chronology ]

    • icon
      sumgai (profile), 16 Nov 2021 @ 9:11pm

      Re:

      I think company's have a right to check how many users or pcs have the program installed...

      No, the should not have any such rights. They already have the means to politely inquire, via an email or a snail-mail letter, as to how many seats are actually using the product versus the number of licenses. If they don't like the answers, that's too bad. They'll just have to wait for a disgruntled ex-employee to rat them out.

      The upshot here is that your expressed wish would set a bad precedent. Imagine if the RIAA had the "legal right and power" to come into your home and count how many physical albums/cds you have on the shelf, versus how many MP3s are loaded onto your computer, or phone, or what-have-you. Ditto for the MPA and your movie collection.

      p.s. I tried Madonna once, but I didn't inhale.

      reply to this | link to this | view in chronology ]

  • icon
    Bill Silverstein (profile), 15 Nov 2021 @ 9:34pm

    What does this have to copyright?

    A common confusion. It is solely a contract issue.

    reply to this | link to this | view in chronology ]

    • icon
      Space5000 (profile), 15 Nov 2021 @ 9:59pm

      Re: What does this have to copyright?

      You might actually be right actually. If this horrible term has no statement in Copyright law, then yeah. I do wonder if contract law can really control physical lawful stuff sold (regardless of "not sold" claim or not) because of so, then that law is going to need to be fixed.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 15 Nov 2021 @ 11:54pm

        Re: Re: What does this have to copyright?

        Because calling it a copyright law issue reduces the standards required for evidence and proof. If you're lucky, you get to leverage the "penalties of up to $150,000" to make your demands sound more threatening and get the poor sucker at the other end to cave for settlement.

        reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 15 Nov 2021 @ 11:51pm

    Something something had understood that even if consumers didn't understand what a rootkit could do, allowing them to escape unpunished for such a massive breach of trust & overreach might have slowed this sort of bullshit down.

    Wait till someone figures out there is a framework that allows remote access to the devices running it.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Nov 2021 @ 6:25am

    Uh. Yeah. No.

    Wow. Lol. Good luck with enforcement there kids. And really, this deserves a write-up? Bad legal language is EVERYWHERE. Just because it’s in the contract doesn’t even make it enforceable: contract law 101. Nothing to see or read here. Move along.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Nov 2021 @ 9:34am

    I had to decline a job once as a driving instructor because of two clauses in the contract: one, like this contract, gave them unfettered access to any computer I used to send or receive email or other communications between us (including my cell phone if I used it to contact them), and the other that demanded I turn over any current or future copyrights I held to them permanently, even if I no longer worked for them.

    "But we never do that," (their retort) is not a valid reason to sign.

    reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 16 Nov 2021 @ 9:51am

      Re:

      I had to decline a job once as a driving instructor because of two clauses in the contract

      You can always alter the contract. They can then either accept your alterations or decline. It's worth a try.

      reply to this | link to this | view in chronology ]

    • identicon
      David, 17 Nov 2021 @ 6:55am

      Re:

      "But we never do that," (their retort) is not a valid reason to sign.

      But it makes it easy to say "ok, so let's just strike this passage out since you don't need it and I don't want it."

      If they refuse, that tells you all you need to know.

      reply to this | link to this | view in chronology ]

  • identicon
    Paul, 17 Nov 2021 @ 3:25am

    Oh that's simple:

    Just tell them:"There is the door and here is my foot."

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Nov 2021 @ 3:31pm

    It is my contention that once you accept my money in exchange for software, the contract is complete. You have my money and I have a copy of the software which I am allowed to use for its intended purpose. You don't get to THEN say "oh yeah, there's also a bunch of other stuff you need to agree to before you can use what you already paid for."

    reply to this | link to this | view in chronology ]


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