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Urban Ranger
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Apolyton Duke of Off-Topic
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quote:
Originally posted by asleepathewheel
I was under the impression that this happened all the time, please tell me where I'm wrong (and I would love to read up on it). This is an adhesion contract, but those are generally upheld so long as they are not unconsionable or unclear. And as you probably know, many types of adhesion contracts are upheld, such as forum selection clauses for cruise lines, etc. |
I am not familiar with your example. A quick search reveals the following reference.
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The results reveal that the problem posed by standard form contracts is widespread and the solutions are surprisingly uniform. Generally, every jurisdiction forbids the enforcement of unfair, unconscionable or unreasonable contract clauses. The definition of the triad "unfair, unconscionable or unreasonable" also tends to be the same: an oppressive term, a term taking unfair advantage of the other party and so on. |
The following is another link
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Procedural and substantive unconscionability must both be present in order for a court to exercise its discretion to refuse to enforce a contract or clause under the doctrine of unconscionability. The more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa |
This pretty much indicates that EULA and similar contracts are not enforcable.
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Urban Ranger
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Apolyton Duke of Off-Topic
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Whaleboy,
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That's consequential at best. In other words, I download something, or receive a piece of random information that is my business, and that prevents me from buying a CD. Am I going to be forced into HMV and obliged at gunpoint to buy a CD? |
Well no, but it seems to me that it is also unethical to retain said information if the originator of this information expects payment for it.
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I think not. The situation there is analogous to car magazines recommending one
car or slamming another. |
Not exactly, unless you acquire a piece of software, say, just for the purpose of evaluation.
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But the copyright is irrelevant. They do not reside in a personal domain like a house or a PC, nor are they directed private communications (me -> a specified individual or individual). |
Surely you jest? Just because somebody leaves something out in the public does not mean it is ethical to take it for yourself.
Besides, the term "public domain" does have a very specific meaning as regards to copyrightable material such as music and books.
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If I publicise something, it is published me -> unknown individuals that want it. |
Not necessarily. You can do so for the purpose of laying ownship claim to it, e.g. teams of scientists race to get research papers published.
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As a condition of that, as I have control over the convenience, I make them pay. That need not be the case. The fact that I release it like that makes it public domain. |
You can release a work into public domain -- however this does not mean all pieces of work released are put into public domain.
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This leads to the conclusion that the publishing industry has been living on borrowed time since it started, waiting for a means of cheap replication that bypasses their ability to control the information by the production of its means of communication, or the illegitimate notion of copyrights. |
The advent of the Internet threatens to do away with the middleman - "publishing industry" as it were. However, I don't see how that renders the notion of copyright illegitimate. You have to realise copyrightable materials are not just about information, they are about creativity.
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asleepathewheel
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listening too long to one song
Mar 2002
time: 00:33
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quote:
Originally posted by Urban Ranger
This pretty much indicates that EULA and similar contracts are not enforcable. |
US courts have upheld EULAs. I direct you to ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996) which held that shrinkwrap licenses are enforceable unless contrary to law or unconscionable. See also: Hill v. Gateway 2000, Inc. 105 F.3d 1147 (7th Cir. 1997) (where the contract was held to be valid even though it was never closely read). For clickwrap license see: Hotmail Corp. v. Van Money Pie, Inc., 1998 WL 388389 (N.D.Cal.)
I pulled this information from http://www.unc.edu/courses/pre2000f...ing01/cases.htm
A sidenote, while you can void a contract, including EULAs for unconscionability, its rarely a successful defense.
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Urban Ranger
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Apolyton Duke of Off-Topic
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funky dp
Last edited by Urban Ranger on 06-02-2004 at 13:41
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asleepathewheel
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listening too long to one song
Mar 2002
time: 00:33
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quote:
Originally posted by Urban Ranger
Actually no, or else there would be no need for UCITA. |
Please explain what you mean.
This invalidates only the part of a EULA that restricts the reselling of merchandise. It doesn't touch anything else. Basically it means that you can give or sell the software cd to someone else, like any other piece of property. It doesn't mean that you can retain a copy for yourself. Do you see the distinction? In your case the part of the EULA at issue is contradictory to public policy, ie the right to transfer property. In the cases I cited, the part of the EULA at stake was more directly related to copyright law.
In this case, the plaintiff was suing by claiming the EULA was violated due to reviewing and benchmarking of their product. The court held that such a ban on reviews constitutes censorship. Basically if you buy a product, you ought to be able to test it and criticize it.
So at the end of the day what do we have? We have EULAs being upheld unless they contain language that violates public policy. And then, only that part of the language is severed, the rest of the EULA remains intact (meaning one bit of language doesn't invalidate the whole thing and you can do what you want with the product, reverse engineer, etc) Such violations of PP include limitations on historical property rights, the right to transfer and dispose of property, and the right to crticize publicly property that you have purchased. Other acts, such as reverse engineering the product or mass copying of a product will be held to be a violation of the EULA, and thus liable for damages.
As this is a continually evolving field, much is changing. Personally I agree with all of the cited rulings, both mine and yours. Software companies need to get slapped around a bit for infringing upon the historical rights of its customers. EULAs at first were incredibly restrictive, but now are becoming more and more like regular contracts, ie susceptible to defenses such as the ones mentioned above 
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asleepathewheel
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listening too long to one song
Mar 2002
time: 00:33
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quote:
Originally posted by Ned
Asleep at the wheel, the very purpose of an end-user license agreement is to impose postsale use restrictions on the purchaser. In almost every case where such postsale use restrictions have been tested in courts they had been found to be in violation of public policy and have not been enforced. So the extent that end user license agreements might be considered enforceable is the extent to which they are consistent with the traditional law of sales of goods. |
I believe I said nearly all of the above, where's the disagreement?
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asleepathewheel
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listening too long to one song
Mar 2002
time: 00:33
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quote:
Originally posted by Ned
Asleep, they are adhesion contracts with inherently suspect enforceability. To state that they are enforceable contracts without the caveat paints a very inaccurate picture. |
I think its far more inaccurate to state that they are invalid on their face, which is what UR stated orginally which set off this barrage of legal blah blah. Far more inaccurate is actually being generous, as courts have upheld them, again look to ProCD. The vast majority of EULA language is valid, because its old fashioned contract law, like what you said.
Furthermore, I think I addressed the areas where EULAs have been found unconscionable, correct? This thread is long now, but was there one instance where I stated they would not adhere to the standards of contract law? That a EULA was treated as if it were handed down from God? If I did, it was an overstatement on my part and for that I apologize.
What is inaccurate about what I've said? Please tell me. I have gone through the cases quoted to me and explained what the reasoning and the repurcussions. I've distinguished them from the cases I cited and tried to explain the state of the law today. Where have I gone wrong?
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Whaleboy
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Please make all cheques payable to Whaleboy
Jan 2003
time: 05:33
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quote:
EDIT: WHALEBOY
You are holding an intriguing position on the pill issue.
I assume you believe any work that involves the production of an infinite resource to be worthless (in $, ), in that you don't have the right to charge something for it.
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Correct. You can charge for the means, but not the information itself. Agathon is correct, what I am proposing is analogous to the GPL.
Hopefully this won't create unusable literature as a result  jk
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You're correct that technological solutions to protect IP will have negative effects. That sounds like blaming conventional property laws for the inconveniences associated with locks, etc
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I don't like that analogy. The notion of material property, ones home, and thus locks, is clear cut, I think we can all agree, with the exception of some hardcore communists. Whether or not you agree with my position, I think it's plain to see here that the issue of IP is not clear cut.
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If you make something people like, and ask for money (not demand) , you'll get it. Infact, there are alot of authors, programers, musicians, and artists of all kinds that are happy to see their work freely distributed, and anything that they get out of it is merely a bonus.
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Myself included.
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EDIT: Of course, this doesn't help the 'pop industry' - hollywood or game publishers/developers that release pieces of unoriginal garbage one after the other.
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Of course, "art" designed to make money is bound to lose money unless it can fiercely defend the notion of IP. It is that which I am attacking.
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Releasing music into the public domain is like releasing a wild animal into the forest. You lose control and for that reason you lose ownership.
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That's probably the best analogy I've even seen you use, nicely done!!
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This pretty much indicates that EULA and similar contracts are not enforcable.
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Party, my house, tonight. Bring your own CDR's.
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Well no, but it seems to me that it is also unethical to retain said information if the originator of this information expects payment for it.
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Not to me, hence my argument that information once publicised is free as in GPL free. I guess we'll have to agree to disagree there. One can still of course be paid for ones efforts using the model I proposed, where one is paid a sum to write a book (and communicates it to the publishers so they might offer another commission), who then produces a load of books and sells them yadda yadda.
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Not exactly, unless you acquire a piece of software, say, just for the purpose of evaluation.
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True, it's not exact, but my point is unaffected imo. For example, reading a textbook on Philosophy means that I don't have to go out and buy Locke's "lets write a book but call it an essay to confuse people". Does that mean that he has can come back and haunt me via the legal system?
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Surely you jest? Just because somebody leaves something out in the public does not mean it is ethical to take it for yourself.
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When it comes to information (and I assume consent to release it and sound mind), then yes it is ethical.
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Besides, the term "public domain" does have a very specific meaning as regards to copyrightable material such as music and books.
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I would hope that I have provided a reasonable definition? Mine is ambiguous communication where one intends for anyone to look or buy etc. Private communication (private domain) is where you address the information to soandso on an unconditional basis.
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You can release a work into public domain -- however this does not mean all pieces of work released are put into public domain.
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By definition (mine), they are. One can either attack my distinction or my definition.
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The advent of the Internet threatens to do away with the middleman - "publishing industry" as it were. However, I don't see how that renders the notion of copyright illegitimate. You have to realise copyrightable materials are not just about information, they are about creativity.
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Creativity could be argued to be finite but I describe it more as an emotion, or a disposition of the artist, that is not being sapped by my reading of his product. It cannot be capital except to oneself in other words. For the purposes of narcissism, like I said, one can still be recognised as the author of a piece of work.
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US courts have upheld EULAs. I direct you to ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996) which held that shrinkwrap licenses are enforceable unless contrary to law or unconscionable. See also: Hill v. Gateway 2000, Inc. 105 F.3d 1147 (7th Cir. 1997) (where the contract was held to be valid even though it was never closely read). For clickwrap license see: Hotmail Corp. v. Van Money Pie, Inc., 1998 WL 388389 (N.D.Cal.)
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Conceded, however I doubt Microsoft has the ability to take on everybody who commits that "crime". If they did, or the great majority of them, then it would be an enforcable law.
Does anyone reckon that the anti-IP people here are really really pissing off some secret RIAA attache assigned to monitor Apolyton? MtG, I'm looking in your direction...
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Ned
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of Aptos, CA
Oct 1999
time: 21:33
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quote:
Originally posted by asleepathewheel
I think its far more inaccurate to state that they are invalid on their face, which is what UR stated orginally which set off this barrage of legal blah blah. Far more inaccurate is actually being generous, as courts have upheld them, again look to ProCD. The vast majority of EULA language is valid, because its old fashioned contract law, like what you said.
Furthermore, I think I addressed the areas where EULAs have been found unconscionable, correct? This thread is long now, but was there one instance where I stated they would not adhere to the standards of contract law? That a EULA was treated as if it were handed down from God? If I did, it was an overstatement on my part and for that I apologize.
What is inaccurate about what I've said? Please tell me. I have gone through the cases quoted to me and explained what the reasoning and the repurcussions. I've distinguished them from the cases I cited and tried to explain the state of the law today. Where have I gone wrong? |
Asleep, I have no disagreement with you post.
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06-02-2004 04:41
The history of the music business is other people making money from the work of artists because of copyright.
) or justifying DLing of old works, youd be persuasive. In fact i suspect the majority of DL's are of works that are made within the last 10 years, if not the last year, by living creators. 
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conscionable (if that's a word)= EULA stands. unconscionable=EULA falls (more specifically that part of the EULA is severed from the rest of the agreement)
. Do go on...
. Where were you going with it?
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