[nylug-talk] Shrinkwrap Licenses: An Epidemic Of Lawsuits Waiting To Happen (fwd)

[Jay Sulzberger]

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  Subject: Shrinkwrap Licenses: An Epidemic Of Lawsuits Waiting To Happen
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     InformationWeek

     Shrinkwrap Licenses: An Epidemic Of Lawsuits Waiting To Happen

     We mostly ignore the terms of shrinkwrap and clickwrap licenses, but
     pretty soon the lawyers are going to come sniffing around, says
     columnist Cory Doctorow.

     By Cory Doctorow,  InformationWeek
     Feb. 3, 2007
     URL:
     http://www.informationweek.com/story/showArticle.jhtml?articleID=197003052

     Anybody who bothered to read a clickwrap or shrinkwrap agreement would
     never install any software, click on any link on the Web, open an
     account with anyone, or even shop at many retail stores. The terms of
     these agreements are onerous and ridiculous. We go along with the gag
     because we think nobody's paying any attention. But somebody's going
     to start paying attention soon, and when they do, the results will be
     disastrous for the electronic economy.

     Clickwrap and shrinkwrap agreements start with the phrase READ
     CAREFULLY, all in caps. The phrase means, "IGNORE THIS." That's
     because the small print is unchangeable and outrageous.

     Why read the "agreement" if you know that:

     1) No sane person would agree to its text, and

     2) Even if you disagree, no one will negotiate a better agreement with
     you?

     We seem to have sunk to a kind of playground system of forming
     contracts. Tag, you agree! Lawyers will tell you that you can form a
     binding agreement just by following a link, stepping into a store,
     buying a product, or receiving an email. By standing there, shaking
     your head, and shouting "NO NO NO I DO NOT AGREE," you agree to let
     the other guy come over to your house, clean out your fridge, wear
     your underwear and make some long-distance calls.

     For example, if you buy a downloadable movie from Amazon Unbox, you
     agree to let them install spyware on your computer, delete any file
     they don't like on your hard-drive, and cancel your viewing privileges
     for any reason. Of course, it goes without saying that Amazon reserves
     the right to modify the agreement at any time.

     The worst offenders are people who sell you movies and music. They're
     closely seconded by people who sell you software, or provide services
     over the Internet. There's supposed to be a trade-off to this --
     you're getting a discount in exchange for signing onto an abusive
     agreement. But just try and find the software -- discounted or
     full-price -- that doesn't come with one of these "agreements."

     For example, Vista, Microsoft's new operating system, comes in a
     rainbow of flavors varying in price from $99 to $399, but all of them
     come with the same crummy terms of service, which state that "you may
     not work around any technical limitations in the software," and that
     Windows Defender, the bundled anti-malware program, can delete any
     program from your hard drive that Microsoft doesn't like, even if it
     breaks your computer.

     It's bad enough when this stuff comes to us through deliberate malice,
     but it seems that bogus agreements can spread almost without human
     intervention. Google any obnoxious term or phrase from a EULA, and
     you'll find that the same phrase appears in a dozens -- perhaps
     thousands -- of EULAs around the Internet. Like snippets of DNA being
     passed from one virus to another as they infect the world's
     corporations in a pandemic of idiocy, terms of service are
     semi-autonomous entities.

     Indeed, when rocker Billy Bragg read the fine print on the MySpace
     user agreement, he discovered that it appeared that site owner Rupert
     Murdoch was laying claim to copyrights to every song uploaded to the
     site, in a silent, sinister land-grab that turned the media baron into
     the world's most prolific and indiscriminate hoarder of garage-band
     tunes.

     However, the EULA that got Bragg upset wasn't a Murdoch innovation --
     it dates back to the earliest days of the service. It seems to have
     been posted at a time when the garage entrepreneurs who built MySpace
     were in no position to hire pricey counsel -- something borne out by
     the fact that the old MySpace EULA appears nearly verbatim on many
     other services around the Internet. It's not going very far out on a
     limb to speculate that MySpace's founders merely copied a EULA they
     found somewhere else, without even reading it, and that when Murdoch's
     due diligence attorneys were preparing to buy MySpace for
     $600,000,000, Murdoch's attorneys couldn't be bothered to read the
     terms of service.

     In the attorneys' defense, EULAese is so mind-numbingly boring that
     you can hardly blame them.

     If you wanted to really be careful about this stuff, you'd prohibit
     every employee at your office from clicking on any link, installing
     any program, creating accounts, or signing for parcels. You wouldn't
     even let employees make a run to Best Buy for some CD blanks -- have
     you seen the fine print on their credit-card slips? After all, these
     people are entering into "agreements" on behalf of their employer --
     agreements to allow spyware onto your network, to not "work around any
     technical limitations in their software," and they're agreeing to let
     malicious software delete arbitrary files from their systems.

     Which raises the question -- why are we playing host to these
     infectious agents? If they're not read by customers or companies, why
     bother with them?

     So far, very few of us have been really bitten by EULAs, but that's
     because EULAs are generally associated with companies who have
     products or services they're hoping you'll use, and enforcing their
     EULAs could cost them business.

     But that was the theory with patents, too. So long as everyone with a
     huge portfolio of unexamined, overlapping, generous patents was
     competing with similarly situated manufacturers, there was a mutually
     assured destruction -- a kind of detente represented by
     cross-licensing deals for patent portfolios.

     But the rise of the patent troll changed all that. Patent trolls don't
     make products. They make lawsuits. They buy up the ridiculous patents
     of failed companies and sue the everloving hell out of everyone they
     can find, building up a war-chest from easy victories against little
     guys that can be used to fund more serious campaigns against larger
     organizations. Since there are no products to disrupt with a
     countersuit, there's no mutually assured destruction.

     If a shakedown artist can buy up some bogus patents and use them to
     put the screws to you, then it's only a matter of time until the same
     grifters latch onto the innumerable "agreements" that your company has
     formed with a desperate dot-bomb looking for an exit strategy.

     More importantly, these "agreements" make a mockery of the law and of
     the very idea of forming agreements. Civilization starts with the idea
     of a real agreement -- for example, "We crap here and we sleep there,
     OK?" -- and if we reduce the noble agreement to a schoolyard game of
     no-takebacks, we erode the bedrock of civilization itself.

     Cory Doctorow is co-editor of the Boing Boing blog, as well as a
     journalist, Internet activist, and science fiction writer.

     Cory says: "READ CAREFULLY. By reading this article, you agree, on
     behalf of your employer, to release me from all obligations and
     waivers arising from any and all NON-NEGOTIATED agreements, licenses,
     terms-of-service, shrinkwrap, clickwrap, browsewrap, confidentiality,
     non-disclosure, non-compete and acceptable use policies ("BOGUS
     AGREEMENTS") that I have entered into with your employer, its
     partners, licensors, agents and assigns, in perpetuity, without
     prejudice to my ongoing rights and privileges. You further represent
     that you have the authority to release me from any BOGUS AGREEMENTS on
     behalf of your employer."

     Copyright © 2006 CMP Media LLC