>craig <[EMAIL PROTECTED]> writes:
>
>> I was told last night by an IP lawyer that "click-through licenses have
>> been upheld in court".
>
>Yes, I believe that's been the case for a while. A click on ACCEPT
>appears to be legally roughly equivalent to the signature on a contract,
>provided you can prove the person did that (signatures are a bit more
>permanent and lasting and easier to establish). This is a Good Thing; if
>this weren't the case, ISP AUPs and the like would be uninforceable and
>e-commerce would become very difficult. I don't have a problem with that.
Yes, that's the reasoning, and I understand it perfectly well...to a
point.
Exactly *who* are the parties to the "[rough] equivalent to the
signature on a contract", though?
Remember, the assumption here is that the transaction between the
parties (FTP client and FTP server operators and their correlative
software agents; or customer and salesperson exchanging money and
shrinkwrap software) has *already happened*.
After that transaction, which is an *implied contract* (I assume),
there can be *no* after-the-fact changes to the contract without
*both* parties agreeing to that.
When you're *later* running that computer program, you are *not*
engaging in contract negotiations with a second party. In fact,
you are dealing with no legally recognized entity at all. You
can't sue it for making false representations, for example.
I'm not interested in what we can *infer* that software did based
on the code. I'm only interested in what *legislation* exists
that grants software the right to, on its own volition, enter
into an enforceable contract with an individual such that the
individual is liable for damages, can be imprisoned, and so on,
when the *software* is under no such legal liabilities.
Put another way: if you buy a JimBobBoy Toy for your 5-year old,
take it out of the store, assuming the transaction has completed,
what right does that *toy* have to suddenly, two months later,
"decide" it will no longer "play" with your son as it has (perhaps
implicitly) been promised to do in the past *unless* you tell it
you agree to some *new* license terms?
I'm aware of *no* legal or ethical compulsion under which I should
be required to tell the truth to *software*. To another person
*via* software as a recording device, yes -- if that's part of
what is clearly a valid contract-agreement process, for example.
But when I'm running software on my computer, it's unconnected to
the net, or if I've *clearly* been led to believe that I've
purchased it (or obtained it for "free" via download), then I can't
see how any attempt by that software to get me to engage in *further*
contract negotiations have any validity.
Now, I'm a *totally* committed Christian who doesn't believe it's
right to lie, cheat, steal, or kill, *ever*, period.
Yet I have no problem lying to a computer program. (Okay, honesty
time, maybe I *have*, in the past, and thus not clicked-through
a license I didn't want to accept. But no longer, now that I clearly
see the issues.)
As far as convenience for etrade and such: poppycock. First, the
courts' jobs are to interpret the *law*, not invent new law for
the convenience of industry. That's for the legislatures to
undertake.
Second, in any situation where a vendor chooses to use a manner of
delivery that creates the clear impression that a transaction has
been completed as of purchase or download, that vendor must be
interpreted, *legally*, to have agreed to continue abiding by the
terms of the transaction ever after, regardless of what it claims
its software might or might not ask, or be told, by its user.
If the vendor disagreed with that, it is up to the *vendor* to
choose a *different* method of delivery. E.g. provide *non*-anonymous
FTP access via a login/password combination after getting something
akin to an online signature verifying that the potential customer
agrees to the license terms *up front*.
It's called "the cost of doing business". And it's trivial, both
for FTP access to "free" software that tries to add post-transaction
constraints, as well as for overshelf sales of shrink-wrap software,
as well as telephone-based sales of shrink-wrap software.
In all cases, if the *legislation* doesn't grant independently acting
software the rights to act on behalf of a party, *or* if the *other*
party in a transaction is not warned ahead of time that a seemingly
"complete" transaction is going to, in fact, be further negotiated
*by that agent* (the software) *afterwards*, then the vendor has
committed *fraud* by claiming that the terms of the agreement are
modified *after* the transaction.
In my opinion, unless somebody can show legislation that itself
provides clear, up-front notification to consumers of software
(via shrink-wrap transactions or anon-FTP downloads of "free"
software) that they were going to have to deal with *software*
as if they were *duly appointed agents* of the party with whom
they would otherwise have believed they'd *completed* a transaction
(with contract, implied or otherwise)...
...we have the potential for a *huge* class-action suit here.
So, please, where's the USC or other code I look up that grants
such after-the-fact authorization of renegotiation of contract
by software?
>I'd double-check some of the rest of this with another IP lawyer. *Until
>you have accepted the contract* you aren't bound by its provisions; you're
You've accepted the contract that was implied during the transaction.
After that, nothing you say or do on your computer constitutes
modification of a contract, or agreement with a contract, or
anything similar, since *you aren't negotiating with anybody*.
>In order to make you agree to the
>contract as a condition of getting a copy of the software, I'm pretty sure
>they have to *make* that a condition; that's why if you download, say,
>Postfix from IBM's web site, they put the license up on the screen and
>make you accept it before you get a copy.
Excellent. That's as it *should* be. I don't mind one bit a
splash screen that *confirms* (but cannot reduce) those terms,
e.g. in case somebody illegally puts up the copy on another
web site without the pre-download protection.
>So the only way I can see the above working is if somehow you're not in
>legal possession of the software after you rejected the contract, which
>makes no sense to me at all.
No, the case I mean is where I accepted the *implicit*, or *explicit*,
contract when I downloaded or bought software.
Then I run the software, stand-alone mode, and it tells me I must
accept *further* conditions to run it.
I claim that, at this point, I have no ethical or legal compunction
to tell the truth to a piece of software, since it is, in this
case, not in any way acting as a duly appointed agent for the
party of a contract, especially not in a contract negotiation that
pertains to my use of that software...since I already *negotiated*
that contract.
>Copyright law in the United States specifically gives you the right to
>make whatever copies of software are necessary for the normal running of
>the software package. However, I can see the argument that in this case,
>this only implies your right to run the software and get that dialog box;
>you're then presented with a contract you have to agree to to continue.
I argue that I'm presented with a *purported* contract, that has no
more legal or ethical force than when your three-year-old daughter
asks you "daddy, when I grow up, will you marry me?" and you say
"yes, dear".
>So my non-lawyer *opinion* is that you're not required to destroy the
>software, you still have a legal copy, and you're permitted to make
>archival and backup copies of it and run it as many times as you want to
>see that dialog box, but you can't do any more than that with it without
>accepting the contract.
Just to reiterate, I already accepted the only *legally and ethically
binding* contract on the transaction that resulted in my getting
a copy of the software.
If the software wants to play games with me and pretend I have to agree
to other terms, I'm perfectly within my rights to lie to it and say
"ACCEPT", then brazenly violate *those terms*, as long as I'm still
within the terms of the *real* contract.
(Practically, I realize that if some judge has ruled otherwise, this
might not be smart. But I claim it *is* entirely legal and ethical
*unless* someone can show the legislation that informed me, up front,
that I should be prepared to continue negotations, post-transaction,
with an automaton.)
tq vm, (burley)
