You should check out Andino v. Apple, an ongoing lawsuit in which the plaintiff alledges that the use of the "Buy" button is fraudulent if content is truly not bought.
I feel like you are confusing copyright law with contract law.
I can purchase Minecraft without agreeing to any EULA. It only appears after you download the launcher.
Here are the two types of unconscionability:
The basic test applied for unconscionability is “whether, in light of the
general background and the needs of a particular case, the clauses
involved are so one-sided as to be unconscionable under the
circumstances existing at the time of the making of the contract”.
Substantive unconscionability looks to the actual terms of the
agreement, while procedural unconscionability focuses on the manner
in which the contract was negotiated and the circumstances of the
parties at the time of formation. Procedural unconscionability may be
shown by either an inequality in bargaining power or unfair surprise.
This may be evidenced by terms that are unreasonably favourable to
one party, terms hidden in the contract, or where one party has
substantially lower education levels. Substantive unconscionability
may be shown by an overly harsh allocation of risks or unjustifiable
costs or a great price disparity. Where a court finds that a contract or
clause is unconscionable at the time it was made, it can refuse to
enforce the contract or limit the application of that clause to avoid an
unconscionable result.
It is not the EULA that allows me to use the software. The software can be naturally executed and used. The EULA then comes around and coerces me to agree to it if I want to get past an install screen. While the actual software is already in my posession, which is the only thing copyright law regulates. Copying and redistribution.
* It is not the EULA that allows me to use the software.*
ProCD said it was way back in ‘96. It’s still good law isn’t it?
As to unconscionability, the subject matter is relevant. In other words, there aren’t any video game cases in the unconscionability section of the typical contracts textbook.
As long as it says "buy a license to use Minecraft" and not "buy Minecraft" then yes. If it just says "buy" without telling you what you're buying them a reasonable person would assume it was a good and not a license. You want to sell me a license to some unspecified-until-after-sale access to a good, then don't obtain my money by deceiving me, tell me up front ... then yes, you win at capitalism, go you.
But that truth impacts sales as people want ownership without companies being able to rug pull. We want to be able to load up Minecraft in 30y regardless of whether Microsoft decided they're done with it.
I pointed the Andino lawsuit out as context on why this isn't a "me spewing crazy shit out of my mouth" type of thing.
Also, what "wider US society" are you talking about? Most people who use software don't ever read any terms or EULAs, let alone know the implications. And the shenanigans that they bring to the table would be laughed out of the room in any physical setting (in fact they already have been laughed out of the courtroom, see the first sale doctrine)
"Here's a machine. You're responsible for keeping it. You must use it with your own electricity and resources. But you don't own it, it's more like a lease. Oh but we advertise it as a purchase and call it that in every public display we make of it, except in our hundred-page legal terms document, which (we know) nobody reads."
I feel like you are confusing copyright law with contract law.
I can purchase Minecraft without agreeing to any EULA. It only appears after you download the launcher.
Here are the two types of unconscionability:
The basic test applied for unconscionability is “whether, in light of the general background and the needs of a particular case, the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract”.
Substantive unconscionability looks to the actual terms of the
agreement, while procedural unconscionability focuses on the manner
in which the contract was negotiated and the circumstances of the parties at the time of formation. Procedural unconscionability may be shown by either an inequality in bargaining power or unfair surprise. This may be evidenced by terms that are unreasonably favourable to one party, terms hidden in the contract, or where one party has substantially lower education levels. Substantive unconscionability may be shown by an overly harsh allocation of risks or unjustifiable costs or a great price disparity. Where a court finds that a contract or clause is unconscionable at the time it was made, it can refuse to enforce the contract or limit the application of that clause to avoid an unconscionable result.
It is not the EULA that allows me to use the software. The software can be naturally executed and used. The EULA then comes around and coerces me to agree to it if I want to get past an install screen. While the actual software is already in my posession, which is the only thing copyright law regulates. Copying and redistribution.