According to the interpretation of this: "A clickthrough EULA isn't unconscionable (and thus enforceable); Fair Use rights can be waived in a EULA; First Sale rights (!) can be waived in a EULA; The DMCA's interoperability provisions are not a defense." Both the /. article and the EFF article have further opinions on what this means going forward, and word is the EFF is planning an appeal.