[free-sklyarov] EU and EULAs (Was: Seybold session yesterday)

[Lars Gaarden]

David Haworth wrote:

> On Thu, Sep 27, 2001 at 12:59:54AM -0700, Christopher R. Maden wrote:
> 
>>Mark Walter, one of the better editors for Seybold Reports, moderated a 
>>panel discussion about the DMCA at Seybold today.
>>
> [...]

 >

>>Another excellent point he made was that fair use may not be relevant to 
>>the debate here.  If the *contract* for using a piece of intellectual 
>>property, like the licensing terms on an ebook, specify certain 
>>restrictions, then fair use doesn't come into play.  If customers don't 
>>want to abide by the terms of the contract, they should refuse to enter 
>>into it in the first place.
> 
> Unless they find that these contract terms are applied after the fact.
> Here in Europe, such contract terms are null and void, and in the absence
> of a mutually-agreed contract, normal copyright law applies.


Do you have a reference to laws and court rulings that support this?

The reason I ask is because 6.4.4 in the EUCD will make 'click-through'
EULAs a convenient opt-out for publishers. I want to understand how
these 'contracts' differ from a regular mutually-agreed contract with
regards to what terms that are considered legally binding.

 From what I've been able to find[1] so far, these EU directives apply:

E-Commerce Directive
Distance Contracts Directive
Directive on Electronic Signatures.
Directive on Unfair Terms in Consumer Contracts
Directive on Consumer Guarantees.

Apart from the ecommerce directive, I have not had time to look at the
rest of them. Any links to material regarding online contracts is highly
appreciated.

[1] http://wwwlaw.murdoch.edu.au/dtlj/articles/vol2_1/koelmanDTLJ2_1.htm

-- 
LarsG