Do you care to support that assertion? It reads very much like one.
> BY INSTALLING, DOWNLOADING, ACCESSING, USING OR DISTRIBUTING ANY OF THE SOFTWARE, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO SUCH TERMS AND CONDITIONS, YOU MUST NOT USE THE SOFTWARE. IF YOU ARE RECEIVING THE SOFTWARE ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE ACTUAL AUTHORITY TO AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT ON BEHALF OF SUCH ENTITY. “Licensee” means you, an individual, or the entity on whose behalf you are receiving the Software.
"... you agree to the terms and conditions of this agreement" seems like a dead giveaway for an EULA -- specifically, an attempt to bind the licensee by contract law in addition to copyright law.
There's confusion of terms here. You seem to be using "EULA" to mean "contract". If you look at the FAQ Confluent added, they read "EULA" to mean something more specific.
"End User License Agreement" has no reliable, specific meaning in the industry. "EULA" for short gets thrown away even more willy-nilly, in all kinds of circumstances. I've seen it used for SaaS terms.
You're certainly right that "EULA" is ambiguous -- but Bryan provided a more specific definition which was pretty clearly concerned with the "contract law in addition to copyright law" part:
> EULAs are an attempt to get out of copyright law — where the copyright owner is quite limited in the rights afforded to them as to how the content is consumed — and into contract law, where there are many fewer such limits. And EULAs have accordingly historically restricted (or tried to restrict) all sorts of uses like benchmarking, reverse engineering, running with competitive products (or, say, being used by a competitor to make competitive products), and so on.
For example, that's why a railway operator (a private company) can fine you when you cannot present a valid ticket. When you get on the train, this action creates a transportation contract between you and the railway operator.
Contract law is a large and complex area of legal code, but the key term that get repeated is the "meeting of minds" which is the core disagreement between those that find EULA valid and those that find them invalid. Classical contract law holds that you can not make contract binding if one party has not read it or do not understand if for one reason or an other. This is used as the example when someone talk about switching a contract under the table, using microscopic hidden text, or other contract schemes. By using excessive length, language, complexity, and a position of power (you may not use the property you bought unless you agree to this additional arbitrarily terms) many see it as identical to switching the contract under table.
There is also some additional fun extras in contract law, like the concept of fair terms. This very old idea is that a contract should be a balanced deal. Terms that unfairly give one party undue benefits can then be challenged as invalid.
> There is also some additional fun extras in contract law, like the concept of fair terms. This very old idea is that a contract should be a balanced deal. Terms that unfairly give one party undue benefits can then be challenged as invalid.
US and state laws have a concept of "unconscionability" for extreme cases, as well as prohibitions on penalties, as opposed to prior agreements to fix damages based on reasonable estimates, and so on. But "the deal wasn't fair" isn't any general defense against breach of contract claims. Courts generally avoid digging into the business or other advisability of contracts. They err on the side of giving parties the deals they agreed to.
Perhaps you were speaking from the perspective of a different jurisdiction?
In some, but very few circumstances. In particular, I don't think the railway operator example works in the UK, at least not automatically, because, otherwise, why would they have special legislation relating to "penalty fares"? Look for the legislation on http://www.legislation.gov.uk/ if you're interested.
Here's an illustrative example that may or may not accurately correspond to the current state of the law in any particular jurisdiction, but it show why this implied contract stuff doesn't work in practice.
A farmer might put up a big notice saying: "By camping overnight on this field you agree to pay me £100 per vehicle per night." Then a bunch of travellers might camp there. Can the farmer sue the travellers for the £100 per vehicle per night? My guess is that he could only sue them for damaging his grass, because, despite what the notice said, the travellers didn't "agree"; they camped illegally and without permission, like they usually do. Probably they smashed up the notice to show what they thought of it. Therefore the farmer can only sue them for trespassing, not for breach of contract. (He might also sue them for the cost of replacing the notice if they did smash it up!)
Likewise, you could put a notice on the front door and every window of your house saying that by breaking into the house burglars agree to pay you X pounds. Would it help you in any way? Of course it wouldn't. You'd get laughed out of court if you tried it.
I don't think you should give this the short shrift you are - in particular, right to use vs other rights is not the defining characteristic of EULA's. There are EULA's for redistributable components and have been for a very long time (for example, the MSVC runtime libraries).
The most defining characteristic of a EULA is usually the "licensed but not sold" part.
I suspect adding this particular entry does more harm than good for you - it makes you look like you ignoring the meaningful argument here.
Personally, I'd remove it until you have some reasonable response.
EULA has no specific meaning in industry. It's been used for so many different kinds of terms, in so many different contexts, that it's lost nearly all meaning. Like "OEM".
> The most defining characteristic of a EULA is usually the "licensed but not sold" part.
Public licenses for software, say MIT or BSD, also arguably license, rather than sell. But they still include disclaimers of warranties, like merchantability and fitness for particular purpose, implied by the Uniform Commercial Code, which governs contracts. Huh?
At least under the US law I've seen, from Jacobsen to Hancom, there's no hard, meaningful legal distinction between contract and license, as some activists theorized early on. Even when those activists drafted licenses, like the GPLs, that explicitly claimed to be licenses and not contracts, they still included contract-like disclaimers and limits on liability.
Realistically, license and contract rules coexist and overlap. How do we interpret license terms? By rules of contract construction. What claims do plaintiffs make for violations? Copyright infringement and breach of contract. What makes a license irrevocable without consideration? Promissory estoppel, a contract doctrine.
But do you view the Confluent Community License as a contract? And do I own the copy (not the copyright!) of the software that I git clone'd, modified and built?
Jay, your FAQ says “EULA only gives you the right to use; the Confluent Community License grants other rights as well.”
This is factually untrue. Many EULAs grant additional rights, such as the right to make a backup copy of the software. In the case of Freeware (ah, halcyon days!) the EULA often allowed redistribution of copies.
