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First I'd like to note that I'm primarely interested in Canadian law, but answers about the law in other countries is fine as well.

I've encountered this situation on multiple occasions, such as when purchasing an ereader, a phone, or getting software online. Typically, it is only after I have paid for and acquired the product that I am presented with the EULA, and informed that without agreeing to it I cannot proceed to use the thing in question.

My question is as the title says: is this even legal? Shouldn't I be made aware of all the terms and conditions prior to making the purchase? How is it accepted for companies to tack additional terms on to the exchange after it has occurred?

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is this even legal?

It is legal, but at the same time the contract is voidable by you. This means that if the buyer rejects the EULA, he is entitled to return the unused product and be reimbursed. Obviously once the buyer has used the product, the conclusion will be that he accepted the EULA and therefore no longer can void the contract.

The buyer's entitlement to rescind the contract compensates for the fact that he was not duly informed about the conditions prior to making the purchase.

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    en.wikipedia.org/wiki/… – MaxB Aug 8 at 21:42
  • @MaxB Thanks for the link. It is important to clarify, though, that unenforceable does not mean illegal (the OP asked about it being legal). X and Y can enter a contract whereby Y will inform X how many digits Y visualizes each day. The contract itself is lawful although unenforceable, since it is impossible for X to ascertain --or for Y to prove-- the accuracy of the information provided – Iñaki Viggers Aug 8 at 22:01
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Adding to Oliver's answer:

Often the situation is that you purchase software, pay for it, install it on your computer, and then you see the EULA. Logical consequence is that the seller needs to give you a full refund for an opened box. Of course, after getting a refund any further use of the software would be at least copyright infringement.

The software may have some protection so it cannot run unless you accept the EULA (for example there is a button to accept the EULA, and the software does not run until the button is pressed). Getting around that protection by technical means is probably a DMCA violation.

As long as you don't act against the EULA, it doesn't really matter whether you accepted it or not. If you accept it and act against it, then the EULA will state the legal consequences. If you act against the EULA, but it cannot be proven whether you accepted it or not, you could in court claim you accepted it (consequences against you = whatever the EULA says) or you could claim you didn't accept it (consequences against you = copyright infringement).

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  • Interesting. What if it says something like "by using this software you agree that..."? Would I still be able to argue I didn't agree? – Charlim Aug 9 at 0:12
  • How do you get that not agreeing to the EULA would be copyright infringement? How would you be violating copyright exactly? 17 USC 106 doesn't restrict normal use. – David Schwartz Aug 9 at 4:04
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Norms change. Laws change. If a family in the 60's bought walkie talkies for their children, then only after opening the box it said "by using this you agree that our radio towers in your city will intercept all communications for the purpose of selling the intercepted data to law enforcement agencies, advertising companies and presidential campaign research for profit", courts may have had an issue with it. Further, if breaking it open and disabling a chip allowed it to work but not be intercepted, the courts would probably allow the family to do that.

Now we have the DMCA that makes it a crime to do the equivalent with software. And now courts assume that a reasonable person, by buying software, understands he will have to give up the rights to your first born son in a EULA.

Without the DMCA, and with a hobbyist community online, there might be ways to break the software lock to disable some of the egregious terms of the EULA that you were unaware of when you bought the product. It would not be worth it for them to try to sue you. With the DMCA, though, you could go to jail for disabling their EULA-enforced spying/etc, so that's not an option.

But if you try to return the software, before you use it, but after you read the EULA, and they won't refund your money, then you might have a case. But even in that case, if the court thinks a reasonable person expects some ridiculous EULA, they could conclude that it was unreasonable for you to think you were agreeing to purchasing the software while withholding your rights to privacy/etc.

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