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41 W. St. U. L. Rev. 467 (2013-2014)
Do End User License Agreements Bind Normal People

handle is hein.journals/wsulr41 and id is 483 raw text is: Do End User License Agreements Bind Normal People? Michael Terasaki* I. INTRO ............................................................. 467 II. THE END USER LICENSE AGREEMENT ................................ 468 A. Circumventing the First Sale Doctrine ........................... 469 B. EULAs Allow Software Companies to Generate Higher Profits. W hat Is the Problem ? .......................................... 470 III. Do EULAs RESULT IN LICENSE OR OWNERSHIP? ..................... 470 A. Enforceability - Contract Formation ............................. 471 B. Criticism of ProCD and Alternative Approaches ................. 472 C. Enforceability - Unconscionability .............................. 473 1. Unconscionability of Clickwrap EULAs Following the Bragg A pproach .................................................. 475 a. Procedural Unconscionability ........................... 476 b. Substantive Unconscionability .......................... 478 IV. LOOKING BEYOND THE EULA LANGUAGE: WHAT REALLY HAPPENS WHEN CONSUMERS ACQUIRE SOFTWARE? ............................. 481 A. Krause v. TitleServ - Incidents of Ownership so One can be Sensibly Considered an Owner .................................. 481 B. Incidents of Ownership Applied to Individual Users .............. 482 C. The Characteristics of Licenses Analysis ........................ 485 D. Do EULAs Have the Characteristics of Licenses? ................ 487 V. PROPOSAL ............................................................. 487 A. Ownership of a Copy of a Copyrighted Work ................... 487 B. Reasonable EULA Terms ....................................... 488 V I. C ONCLUSION ....................................................... 489 I. INTRO The installation of every computer program requires the computer user to click on a series of buttons that appear on the screen, most of which are labeled with the word Next. Invariably, one of these buttons will not contain the word Next but will read I Agree. Agree to what? Generally speaking, individual computer users have no idea what they agree to in the End User License Agreement (EULA) by clicking I Agree. Individual software users from the general public are likely to assume the software publisher did not place objectionable terms in the agreement. These users are also likely to think that the agreement would never actually be * J.D. Candidate, May 2015, Western State College of Law. I would like to thank Professor Myanna Dellinger, for all of her help and support in putting this Article together. I especially want to thank Laura Terasaki being my wife, and for putting up with me while I worked on this Article when I should have been taking her out to dinner.

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