EULAs

I've been thinking about the nature of EULAs recently, and I've got questions and concerns.

First off, I like them and I don't. As a software developer, I can definitely appreciate some of the terms of most EULAs; the no-liability clause is probably the most important, because without that, there is a remote chance of any given piece of software I write being potentially responsible for, or connected to, a near infinite amount of damage. At the same time, there are so many more common clauses that I find objectionable: mandatory arbitration, the stripping of a consumer's right to control what happens on their hardware, the claimed right to change the contract without notice.

That said, I wonder exactly what legal standing they have in the first place. At least one article I read (which I should link if I can find it again) suggested that there exists already some legal tension with EULAs, in that they act like contract, but the product they are tied to is sold like a good, which should preclude the attachment of contract terms. Further, it was suggested that a contract in which one of the parties has no control over the terms is not a legally binding contract. I'm not sure I'd want to test these too hard personally, but that's because I'm ignorant.

On top of those complaints, there's the fact that EULAs help to make the entire transaction of purchasing software borderline fraudulent. When you go into a store and pick up a piece of software, it appears that you have gone through the process of purchasing a good. Except, of course, that EULAs often require you to give up the rights you have with a good (though those clauses are usually legally unenforcable). The usual claim here is that you have not purchased a good, but rather a license to a product, but this too is misleading. You can't simply have the disk and use the software, you're required to "agree" to the EULA first. You haven't even purchased a license, you've purchased the right to license the software. That doesn't seem entirely clear from the presentation of the initial transaction at the store.

So as for questions, does the installation of software constitute proof of a legal agreement? If one were brought up in court for violating a EULA, and one simply asserted that no EULA was presented, what recourse would the plaintiff have? An expert could rightly say that it should not be possible to install the software without agreement, but I don't think it's actually impossible. Or, on another more legally questionable track, what if one were to have a piece of software which automatically agreed to any EULA via an installer in such a way that you never even saw it. You then could say you honestly never agreed to the EULA, though it seems plausible this could be some form of fraud.