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

Sat Feb 3 18:09:28 EST 2007

  If you are interested in these issues, also be aware of UCITA...

  http://en.wikipedia.org/wiki/Uniform_Computer_Information_Transactions_Act

  RMS on UCITA:

  http://www.gnu.org/philosophy/ucita.html

 -jmz

On 2/3/07, Jay Sulzberger <jays at panix.com> wrote:
>
>
> ---------- Forwarded message ----------
>   Subject: Shrinkwrap Licenses: An Epidemic Of Lawsuits Waiting To Happen
>   X-URL: http://www.informationweek.com/shared/printableArticleSrc.jhtml;jsessionid=434VN5UXO02MEQSNDLQSKHSCJUNN2JVN?articleID=197003052
>
>      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 (c) 2006 CMP Media LLC
>
>
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