joegratz.net

September 27, 2004

Virgin Digital: Pretty Good EULA

I’m not a huge fan of adhesion contracts, but they make the world go ’round. I don’t think I’ve ever seen an End User License Agreement as amusing as this one I was just presented with while installing the Virgin Digital music client. It’s a EULA with in-jokes about 1960s performance art movements, which is all too rare, and which I support wholeheartedly. The license is behind the cut.

(UPDATE: In case you were wondering, the selection on the Virgin Digital service isn’t good enough. I can now confirm that the program doesn’t show you anything clever upon uninstallation.)

VIRGIN DIGITAL
TERMS AND CONDITIONS

Please read the following usage agreement carefully. It is a legal contract between you and Virgin Digital that governs your use of Virgin Digital’s services. By agreeing to the terms within, Virgin Digital is granting you a limited license to use the software, subject to certain restrictions. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT USE THE SOFTWARE. YOU MAY RETURN THE SOFTWARE TO THE PLACE WHERE YOU PURCHASED IT FOR A REFUND. IF THE SOFTWARE WAS ACCESSED ONLINE, CLICK “DISAGREE/DECLINE”.

NOTICE

This software is licensed to you only for the reproduction of music and/or video that you own or have the expressed right to use as the software allows. Any attempt to reproduce copyrighted material that you are not expressly permitted to use is not legal, not good for the economy, and not nice. Furthermore, it is not cool, it is not kosher, nor is it the kind of thing that your parents would be proud of. Put the kibosh on it. Hey, are you reading this thing? I didn’t think so. Nobody ever really does, do they? Except the lawyers who write it. Think about it – you’re a lawyer, making god-knows-how-much and hour, and this is the best you can come up with? Lame.

WARRANTY

The usage of the Virgin Digital software is at your sole risk, and all risk as to all aspects of the service including quality, accuracy, and performance is on you. Yes, we worked hard to make this thing great. But, regardless, it is provided “as is” and without any warranty at all. Should the software not work correctly (or affect the performance of your toaster or other small appliances in your home), you assume the entire cost of any servicing or correction. Sorry if this sounds harsh. If it helps, think of this past paragraph being read aloud by a chorus of small leprechauns. With lisps. And gas. There, that’s better.

PERMITTED USES

This License allows you to install and use the Virgin Digital Software. The Virgin Digital software, and all other software made available by Virgin Digital on or through the Service, are protected by intellectual property laws and your use of them is governed by this Agreement as well as any applicable end-user license agreements. You may not reverse engineer it. You may not copy it. You can take an occasional screenshot if you want to show family & friends, but that’s about it. Please don’t hack it. We worked really hard on this thing. Okay, finally, we recently saw the following disclaimer on a competitor’s usage agreement: “THE SOFTWARE IS NOT INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, LIFE SUPPORT MACHINES OR OTHER EQUIPMENT IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.” What does that mean? Who would use music software to operate a nuclear facility? Did they put that disclaimer in because at one point someone did in fact navigate an airplane by using their music software? Is that even possible? I can’t imagine it is, but hey, if they feel that it’s necessary to put that stuff in a software usage agreement, well then so do we. Needless to say, when we think about it, we get pretty creeped out.

SERVICE DESCRIPTION

The Virgin Digital Service affords you the unique and thrilling opportunity to experience 30 second samples of music and to stream, download and think about digitized sound recordings and related nifty digital content. To access the Service, you will need to install or activate Virgin Digital’s proprietary software application; occasionally, you may also be required to install other software made available through the Service (collectively this is referred to as the “Client” – do you think our lawyer named this for us?). You may also need to install certain third-party software, although we have no idea what that might be. You are responsible for any hardware, systems and/or software program(s) you use and any costs (a) to connect to or use the Internet (duh), (b) other than the Client, to use any Materials, and/or (c) to power your computer. (Note: We once read about someone who was able to power their computer when their hamster went jogging on one of those treadmill things. That could save you a few bucks.) The Virgin Digital Service, the Tracks and the Materials are only for your personal, non-commercial use only. But if you do find a way to make money off this service, please give us a call. We might just have a job for you.

REGISTRATION

To use Virgin Digital, you will have to register and provide us with information, including a user name, a password and a valid email address. You agree to provide accurate Registration Data and to update your Registration Data as necessary to keep it accurate. Virgin Digital will use your Registration Data in accordance with its privacy policy, which is pretty good, but private. Very private.

You agree that it is not a good idea to allow others to use your account and that you alone are responsible for maintaining the confidentiality and security of your account. You agree to notify Virgin Digital immediately of any unauthorized use of your password and/or account. This is a really important one, so read carefully: Virgin Digital will not be responsible for any losses arising out of the unauthorized use of your member name, password and/or account and you agree to indemnify and hold harmless Virgin Digital, its partners, parents, subsidiaries, agents, pets, neighbors, mechanics, gardeners, dentists, affiliates and/or licensors, as applicable, for any improper, unauthorized or illegal uses of the same. In other words, if you give a friend your account information, and they use it to buy the whole catalog of over 1 million tracks, we’ll be rich and you’ll be poor. But your credit rating will probably skyrocket, which is, in a way, a good thing. And your friend will have the biggest music collection in history and be very happy, that is until you find them and kick their butt.

SONG FILES

The Virgin Digital Service offers song files in a variety of formats. These include 30 second samples, full length downloadable songs with limited burn rights, full length downloadable songs with no burn rights but some limited listening rights, streams of full length songs, and maybe even some other stuff that we have but can’t remember. These Song Files are owned by Virgin Digital, its business partners, affiliates, pets, and/or licensors, as applicable, and are protected by intellectual property laws. You must not do illegal stuff with them. You need to know that we have people that license them to us. They have the right to come after you if you do illegal stuff with them. Careful, they work out.
There’s a chance that Virgin Digital may at any time lose the right to make certain Songs available. In such event, you will no longer be able to obtain these Songs. Sorry in advance.
Each type of song file has usage rights attached to them. These usage rights vary in size & style, but overall are pretty intuitive. However, Virgin Digital retains the right to change these rights as necessary, as required by law, or as requested or demanded by our partners, affiliates, pets, subsidiaries, parents or sisters. Seriously though, each type of file does have a unique set of usage rights attached to them. Don’t just assume that you know what they are. Ask us. We’ll tell you. If you ignore this and then come crying to us later, we’re just gong to point you back to this agreement – which you didn’t read in the first place. How do I know that? Because nobody ever reads these things. I’m actually writing this for myself. I’m the only one that will ever read this. And the sad thing is that I’ll spell-check it anyway. Damn, I’m lonely.
MORE TERMS OF USAGE
You agree to pay for all Songs (or anything else) that you purchase through the Service and Virgin Digital may charge your credit card for any such payment(s). Virgin Digital may, in its discretion, post charges to your credit card individually or may aggregate your charges with other purchases you make on the Service. All charges will be billed to the credit card you choose when you first make a purchase or incur a charge. If any of your billing information changes, you must update that information in your account management page.
If your cat or pet gerbil walks across the keyboard while you aren’t looking and ends up buying some music that you detest and/or are embarrassed to own, it isn’t our problem. It also isn’t our problem if you get totally piss-drunk and go on a shopping rampage purchasing a complete collection of the worst songs ever recorded. Don’t come crying to us in the morning while you are nursing your hangover and try to erase the last twelve hours of your life. Also, we can’t do anything about the total stranger wearing a superhero costume, slathered in cool whip and who is passed out on your bed either. It’s NOP – not our problem.
THIRD PARTY SOFTWARE
We have software partners. AMG is one of them. The AMG Data is the property of AEC One Stop Group, Inc., (“AEC”), doing business as AMG, All-Music Guide and All Media Guide. You may not modify, copy, scan, or use any other method to reproduce, duplicate, translate, republish, transmit or distribute in any way any portion of the ALL MUSIC GUIDE DATA. You may not download ALL MUSIC GUIDE DATA except for your own personal, non-commercial use. You agree to indemnify, defend and hold harmless AEC (and its affiliates), and Virgin Digital (its partners, parents, subsidiaries, agents, affiliates and/or licensors, as applicable), against any and all claims, damages, costs or other expenses that arise directly or indirectly out of or from (a) your unauthorized use of the ALL MUSIC GUIDE DATA, (b) your violation of this directive , and/or (c) your unauthorized activities in connection with the ALL MUSIC GUIDE DATA.
Okay, they made us put that in here, unedited. What a chance for enlightened comedic commentary. Wasted, all due to some onerously technical and legalistic deal that we did with them. Bastards.
LIMITATION OF LIABILITY
To the extent not permitted by law, in no case shall Virgin Digital be liable for any damages whatsoever, including – without limitation – damages for loss of profit, data, business interruption, or any other commercial damages or losses arising out of usage of this product. We’re very serious about this one. We are removing ourselves from liability of any kind with this statement. If you even think that there’s a small chance that using this software could potentially cause you any harm or cause your computer any damage, don’t use it. Cancel this installation. If you proceed, you are agreeing to this condition.
CONTROLLING LAW AND SEVERABILITY

This License will be governed by and construed in accordance with the laws of the State of California, as applied to agreements entered into and to be performed entirely within California between California residents. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this License shall continue in full force and effect. That’s a standard one. We’ve signed on that one about a thousand times.

THE END OF THIS AGREEMENT

Okay, off you go. Have fun, don’t forget to write. Brush your teeth. Call your mother. Sing a song of six-pence. But most of all, be a good citizen. Obey the rules, mostly. Color within the lines, sometimes. Break bread with a stranger, at least once a week. Give a gift to someone that you knew when you were 5. Think outside the box. Bring a bagged lunch to work – in a yellow bag. Wear a neighbor’s hat. Shave your body of all hair and cover yourself with Nivea cream (note the Alison Knowles fluxus reference, aren’t we smart). And whenever you’re feeling down, remember this: you’re only young once, but if you’re lucky you can be old over and over again.

Sorry you had to read this. Goodbye, for now…

Disclaimer Haiku:
West wind seems to say,
"This is not legal advice;
I'm not your lawyer."

(And if you're a client with whom I have a preexisting attorney-client relationship, this still isn't legal advice.)

In case you're wondering, this blog is also not intended as advertising, as a representation of anything but my personal opinion, or as an offer of representation.

Creative Commons License
This work is licensed under a Creative Commons Attribution-NonCommercial 2.5 License.
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