Capture One Has Insane Clause in EULA

[Space5000]

  

Note: This is my first news reporting thread. I apologize for the quote being off. Should note the main quote has two quotes within it (which is the further spaced parts). Also spellchecker decides to not function for no reason, so there might be some spelling errors. I also want to point out that this news is not super new, but it still feels recent.

 

Summary

Capture One is a photo editing program with some options to a subscription and an option for a full on license for the program. What's interesting about this is that someone apparently noticed a very interesting clause in the license agreement attempting to allow Capture One, without limitation, to request information regarding installation and/or use of the software, and/or to perform on-site investigations of your installations and use of the software.

 

Quotes

Quote

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.”

 

My thoughts

There has been some debate as to whether or not a "EULA" (considered as part of contract law) is enforceable and can truly control what you have bought. I heard that contract law can limit rights, but I am not sure if this includes property rights, especially with the "not sold" part in EULAs for many physical products. I think the sole problem is contract law, as even the Copyright US office made this clear when it comes to the right to repair I think. Even if contract law cannot re-define copyright law (I even heard a court case somewhere that a breach of contract can still happen with software that's even in the public domain), it would still on itself be a problem if contract law itself can still be used to sue people for not obeying the "agreed" terms. I mainly wanted to spread this news to further debate this, because it seems a lot of people still don't much talk about things like this.

 

If contract law cannot control property, and that the "not sale" claim cannot be enforceable if the software is defined as a good (which I heard was later on) by law then, then it would seem weird if it can be enforced, but at the same time it's hard to tell for sure personally, especially when so many people seem to act as if average EULAs are still an enforceable legal contract mainly in the US. In my moral argument, if I pay for something lawful once, and it's in the privacy of my own home with no date of return, then I should get the right to such product alone and I morally believe any clause limiting it should never be enforceable, even if I saw it before the sale.

 

Sources

https://walledculture.org/does-copyright-give-companies-the-right-to-search-your-home-and-computer/

https://www.techdirt.com/articles/20211110/23501647922/does-copyright-give-companies-right-to-search-your-home-computer.shtml

[poochyena]

LTT should add this clause to their GPU program. Linus personally comes to your house to verify you are, in fact, a gamer.

[TempestCatto]

I wonder if it's their way of trying to combat pirates. Well guess what? Nothing works.

[Arika]

I would love for them to try and justify that in court if they trespassed on a property and used their EULA as the defence

[Fasterthannothing]

Yeah good luck in court with that one. 

[Quackers101]

I'm just going to photo edit them stalking my neighbor for using their services. ty.

oh wait this is made by the FBI? oh... lol

 

anyways, EULA's can't really go above the law and depends on what they accept as "agreeable terms and conditions". so yeah.

[Lightwreather]

HUh.

Good luck with that.

 

[Taf the Ghost]

Only way they could legally force their way onto your property would be with a local warrant. As a result, they'd need a civil court action. The civil courts would toss such an action unless the judge was drunk that day. 

[wanderingfool2]

Honestly, it's likely in place to try catching organizations that copy the software and have multiple users (i.e. businesses that are playing fast and loose with the licensing).

 

Microsoft's volume licensing is the same way, they have the right to audit you.  I think Adobe has similar terms.  To be honest though, I don't blame them for having those kinds of terms in place.  I knew a college that utilized Maya and Photoshop without proper licensing and only licensed the "proper" amount at the end of the semester when the students who were going to drop out dropped out.  Or the work places that had over 150 employees, but only 100 valid Windows licenses.

 

The right to audits get put into place not because they intend to raid your home...but rather because if they detect like 5 computers from 1 license then they have the right to check it.  Not saying I agree with this, but at the same time I can understand how a software company might want to make it so that they are able to actually pursue a business that is abusing a single license to handle multiple employees.

[leadeater]

5 hours ago, Arika S said:

I would love for them to try and justify that in court if they trespassed on a property and used their EULA as the defence

Property Owner: Get off my property

Auditor: But I have an EULA

Property Owner: *loads shotgun*

Auditor: But the EULA!!

[leadeater]

58 minutes ago, wanderingfool2 said:

Microsoft's volume licensing is the same way, they have the right to audit you.  I think Adobe has similar terms.  To be honest though, I don't blame them for having those kinds of terms in place. 

Oracle is infamous for license audits, legit Google "Oracle license audit" it's quite an amusing sight to see what comes up.

 

Like: https://upperedge.com/oracle/the-top-10-triggers-and-deterrents-of-an-oracle-audit/

[Salv8 (sam)]

i'ma leave this here:

https://www.gimp.org/

[MageTank]

6 hours ago, leadeater said:

Property Owner: Get off my property

Auditor: But I have an EULA

Property Owner: *loads shotgun*

Auditor: But the EULA!!

Ah yes... The EULA, or "End Ur Life Agreement", enforced the moment you step on my property and attempt to force your way in, lol.

[Brooksie359]

14 hours ago, Space5000 said:

  

Note: This is my first news reporting thread. I apologize for the quote being off. Should note the quote has a quote within it (which is the further spaced parts). Also spellchecker decides to not function for no reason, so there might be some spelling errors. I also want to point out that this news is not super new, but it still feels recent.

 

Summary

Capture One is a photo editing program with some options to a subscription and an option for a full on license for the program. What's interesting about this is that someone apparently noticed a very interesting clause in the license agreement attempting to allow Capture One, without limitation, to request information regarding installation and/or use of the software, and/or to perform on-site investigations of your installations and use of the software.

 

Quotes

 

My thoughts

There has been some debate as to whether or not a "EULA" (considered as part of contract law) is enforceable and can truly control what you have bought. I heard that contract law can limit rights, but I am not sure if this includes property rights, especially with the "not sold" part in EULAs for many physical products. I think the sole problem is contract law, as even the Copyright US office made this clear when it comes to the right to repair I think. Even if contract law cannot re-define copyright law (I even heard a court case somewhere that a breach of contract can still happen with software that's even in the public domain), it would still on itself be a problem if contract law itself can still be used to sue people for not obeying the "agreed" terms. I mainly wanted to spread this news to further debate this, because it seems a lot of people still don't much talk about things like this.

 

If contract law cannot control property, and that the "not sale" claim cannot be enforceable if the software is defined as a good (which I heard was later on) by law then, then it would seem weird if it can be enforced, but at the same time it's hard to tell for sure personally, especially when so many people seem to act as if average EULAs are still an enforceable legal contract mainly in the US. In my moral argument, if I pay for something lawful once, and it's in the privacy of my own home with no date of return, then I should get the right to such product alone and I morally believe any clause limiting it should never be enforceable, even if I saw it before the sale.

 

Sources

https://walledculture.org/does-copyright-give-companies-the-right-to-search-your-home-and-computer/

https://www.techdirt.com/articles/20211110/23501647922/does-copyright-give-companies-right-to-search-your-home-computer.shtml

I always find it laughable when people say that EULAs have any power. They are so meanless 99% of the time. The most they really can do is terminate their services if you violate their terms. It holds little weight in the court of law tbh. 

[tikker]

15 hours ago, TempestCatto said:

I wonder if it's their way of trying to combat pirates. Well guess what? Nothing works.

Not even legitimate users read the EULA, let alone pirates

1 hour ago, Brooksie359 said:

I always find it laughable when people say that EULAs have any power. They are so meanless 99% of the time. The most they really can do is terminate their services if you violate their terms. It holds little weight in the court of law tbh. 

While still vague, they can technically hold water for Dutch law. They can count as legally valid if the EULA is presented before buying the software, or if it's made known to the potential user where they can find and read it if it's not possible to immediately present them with it. The reason for that is that they can be seen as a set of general terms of use. If they are presented when you try to install it after buying the software, then they aren't legally binding, because you haven't had the opportunity to review them before buying. In that context installing a trial, accepting the EULA and then buying a license afterwards might make them legally valid.

[Sauron]

16 hours ago, Space5000 said:

There has been some debate as to whether or not a "EULA" (considered as part of contract law) is enforceable and can truly control what you have bought. I heard that contract law can limit rights, but I am not sure if this includes property rights, especially with the "not sold" part in EULAs for many physical products

EULAs can't override the law, I'm pretty sure you can't just invade someone's house against their will just because they installed a software in which you included a PDF saying you could. Otherwise I could also just do this:

 

By reading this post, you have given me permission to visit your house and leave with your first born child, whose organs will be harvested and sold at my sole discretion.

[porina]

Insert standard "I am not a lawyer" disclaimers here. May depend also on jurisdiction, which is typically stated in the licence agreement, as the creators want to make it easy for themselves in case of any dispute.

 

Say you did something to get on Capture One's radar, and they want to check you out. At least in the quote, it doesn't define the process. It doesn't say they can turn up at your site at any time without warning. It says they can request such. If you decline or fail to meet their request in a reasonable timescale, there may be some "penalties" for non-conformance elsewhere. It'll probably go to court if there is sufficient disagreement.

 

BTW why is commercial photo software so up tight? I've essentially got a DXO license I can't use other than on the current machine it is on as they refuse to "support" old versions. All I want is to activate on a new system. I bought Corel as an alternative to Adobe, but when it came to moving the install, I can't find any e-mail trail of my purchase. And there's nothing in my online account. So again I can't move the existing install to a newer system. Adobe are least worse, although my Elements install doesn't have any online way to revoke licenses other than from the old install. So if you no longer have access to it for whatever reason, you can't free that activation. My peak photography days are behind me, but I do wonder if I pick it up again if any software will still work without having to pay for whatever is the latest version.

[BuckGup]

16 hours ago, TempestCatto said:

I wonder if it's their way of trying to combat pirates. Well guess what? Nothing works.

You know what does work and has a metric butt ton of research and data to support it? Not practicing anti-consumer practices. Companies actually make more money and have higher customer retention if they were more consumer orientated. 

[lewdicrous]

16 hours ago, Arika S said:

I would love for them to try and justify that in court if they trespassed on a property and used their EULA as the defence

"We said we're allowed to do this, your honor"

[wanderingfool2]

Overall this is really overblown, and really seems like sensationalized media reporting...especially given they take out the parts that talk about -business- not household users.

 

 

11 hours ago, leadeater said:

Oracle is infamous for license audits, legit Google "Oracle license audit" it's quite an amusing sight to see what comes up.

 

Like: https://upperedge.com/oracle/the-top-10-triggers-and-deterrents-of-an-oracle-audit/

haha, yea, I never dealt with Oracle software before that seems so much worse than MS audits.

 

1 hour ago, Sauron said:

EULAs can't override the law, I'm pretty sure you can't just invade someone's house against their will just because they installed a software in which you included a PDF saying you could. Otherwise I could also just do this:

 

By reading this post, you have given me permission to visit your house and leave with your first born child, whose organs will be harvested and sold at my sole discretion.

Honestly the EULA is a reasonable request.  It's not like it even applies to standard households.  The way the EULA was written, the audit seems very much written for the business entities...I mean the news outlet conveniently left out the following bit

Quote

Verification will take place during normal business hours and in a manner that
does not interfere unreasonably with Licensee’s operations

If you install software, especially one where it's licensed per user count you very much are limited by the license agreement...yes they can't do things that override laws, but doing an inspection of premise to confirm compliance isn't actually uncommon.  It happens all the time in businesses...examples being corporate printers (they had the right to inspect the printer), MS audits which have been around forever, electrical, water, etc.  They all have the rights to inspect, but mostly when they suspect something weird is happening...after all they have to pay for the auditors.

[Space5000]

57 minutes ago, wanderingfool2 said:

If you install software, especially one where it's licensed per user count you very much are limited by the license agreement...yes they can't do things that override laws, but doing an inspection of premise to confirm compliance isn't actually uncommon.  It happens all the time in businesses...examples being corporate printers (they had the right to inspect the printer), MS audits which have been around forever, electrical, water, etc.  They all have the rights to inspect, but mostly when they suspect something weird is happening...after all they have to pay for the auditors.

To be honest I am having trouble what an audit exactly means. I tried to look it up but it's a little blurry to me. But if by inspection, it's them going to your house then that might be very debatable, even if it's common in contracts like those. Not quite sure if it being common really changes a law prohibiting it assuming any.

 

Anyway the general debate I wonder is if they really can limit a lot of what you payed for involving certain software. Can a contract law really have legal power to control someone's physical (as in, particular copy) single payment product in the privacy of one's home? Morally speaking I don't think they should have any right to tell me to not use it and then destroy it, and I most certainly morally think they shouldn't have the right to unilaterally change the terms for same and don't think they should have any right to revoke it at will. But to me it's a bit hard to tell for sure if terms like that can truly be enforceable in many places, especially the USA states. I heard that some places started qualifying software and computer games as goods maybe, and kept hearing something interfered with the 2010 court case, but I often don't hear this outside of this website.

[wanderingfool2]

14 minutes ago, Space5000 said:

To be honest I am having trouble what an audit exactly means

It really depends.  In this case it essentially means that they can request information (like amount of computers that were installed on, employees that use it).  They can then compare it to what their telemetry data is.  If things don't quite add up (like lets say they suspect there are 100 installs, but they only report 10) then they can request an onsite visit.

 

In theory they could go straight to an onsite visit, but even then they've limited it to business hours, and they will give 7 days notice and will try doing to so minimize the effects on the business.  Overall it's pretty reasonable terms.  This really is meant to prevent the abuse, like having 100 employees all using the software and yet only licensing 10 copies or similar kinds of concepts.

 

I've seen first hand how some businesses like to skirt around the licensing of software...like only paying for a single user and having multiple employees accessing it.  This isn't to catch the regular home-user, it's to catch the larger companies.

 

24 minutes ago, Space5000 said:

Can a contract law really have legal power to control someone's physical (as in, particular copy) single payment product in the privacy of one's home?

It all really depends.  When you buy a product like this, especially one that offers things as monthly or per user usages you really aren't buying the physical rights to the software.  Especially in the business use case where you are paying per use, not per install.

[Space5000]

3 hours ago, wanderingfool2 said:

It really depends.  In this case it essentially means that they can request information (like amount of computers that were installed on, employees that use it).  They can then compare it to what their telemetry data is.  If things don't quite add up (like lets say they suspect there are 100 installs, but they only report 10) then they can request an onsite visit.

 

In theory they could go straight to an onsite visit, but even then they've limited it to business hours, and they will give 7 days notice and will try doing to so minimize the effects on the business.  Overall it's pretty reasonable terms.  This really is meant to prevent the abuse, like having 100 employees all using the software and yet only licensing 10 copies or similar kinds of concepts.

 

I've seen first hand how some businesses like to skirt around the licensing of software...like only paying for a single user and having multiple employees accessing it.  This isn't to catch the regular home-user, it's to catch the larger companies.

Interesting. Does sound a big complicated, but to me it sounds like this becomes an issue if they can do that to a random end-user.

 

Quote

It all really depends.  When you buy a product like this, especially one that offers things as monthly or per user usages you really aren't buying the physical rights to the software.  Especially in the business use case where you are paying per use, not per install.

 

I assume you mean when someone downloads it from their website instead of buying a physical version? Though I heard some debates about this involving Australia, plus if you download something, it becomes physical in your hard drive too. Copyright law does recognize that copies of certain Software can be physical copies if I remembered right, RAM doctrine, first sale (well, not through digital transfer), that kind of stuff. In the end, I'm hoping EULAs don't allow companies to dictate the most basic rights in privacy, but I'm left unsure at this moment.

 

_____________________

 

Also to bring an update here for anyone, I found something today.

https://petapixel.com/2021/11/17/capture-one-demands-physical-access-to-your-computer-accidentally/

Seems to be an update over the mess involving Capture One.

[CTR640]

On 11/17/2021 at 3:17 AM, TempestCatto said:

I wonder if it's their way of trying to combat pirates. Well guess what? Nothing works.

Totally true. In the end, only the legit paying customers gets a lot of shit and trouble. See games with DRM bullshit for example.

[Brooksie359]

13 hours ago, Space5000 said:

Interesting. Does sound a big complicated, but to me it sounds like this becomes an issue if they can do that to a random end-user.

 

 

I assume you mean when someone downloads it from their website instead of buying a physical version? Though I heard some debates about this involving Australia, plus if you download something, it becomes physical in your hard drive too. Copyright law does recognize that copies of certain Software can be physical copies if I remembered right, RAM doctrine, first sale (well, not through digital transfer), that kind of stuff. In the end, I'm hoping EULAs don't allow companies to dictate the most basic rights in privacy, but I'm left unsure at this moment.

 

_____________________

 

Also to bring an update here for anyone, I found something today.

https://petapixel.com/2021/11/17/capture-one-demands-physical-access-to-your-computer-accidentally/

Seems to be an update over the mess involving Capture One.

You realize that this in no way makes it legal from them to forcefully search your residence or anything like that. You can always refuse if they ask for access for an audit too and it's not like the EULA would give them the legal right to search anyways. The most it would do is allow them to ban you from their services.