[IP] more on more on the Vista EULA allows self-help
Begin forwarded message:
From: "David P. Reed" <dpreed@xxxxxxxx>
Date: November 30, 2006 7:15:37 AM EST
To: dave@xxxxxxxxxx
Cc: Richard Santalesa <rsantalesa@xxxxxxxxxxx>
Subject: Re: [IP] more on more on the Vista EULA allows self-help
Richard's response clarifying the legal issue was very helpful. So
let's suppose:
1) Carl is right that EULA's contain many assertions that users might
interpret as rules they must follow, but which in fact are bogus or
misleading.
2) There is a strong incentive to EULA writers to use misleading
EULAs as a way to make users feel threatened (opening the case voids
your warranty, FBI will prosecute you for copying a videoitape, legal
immigrants who vote will be arrested, and other overstatements to
instill fear come to mind).
3) there is no disincentive to those who write such EULAs (no harm no
foul, as Richard suggests).
What should someone who cares about customer freedom to use their
purchased product to the greatest extent, without fear, do?
1) Create a website that analyzes EULAs and separates the lies and
distortions from the true meaning. (there aren't that many EULAs, a
collective of law professors could make light work of it, as each new
one comes on line).
2) measure the actual frequency of such problems, to demonstrate the
level of concern.
3) use that resulting data to seek a legislative redress or a civil
class action, allowing this sort of thing to become a cause of
action, so that such deception and distortion are prevented at the
source.
Reasonable plan? It would tke lawyers who are not seeking jobs with
telecom or computer companies or their lobbyists to carry it out.
The regulatory solution is probably not going to appeal to the
libertarian contingent. I've always wondered what the libertarian
response is to manage duplicitous vendors. Presumably it is lawsuit
based. So making a more liquid market of lawsuits would probably be
an acceptable solution, thus the database of bad EULA terms.
David Farber wrote:
Begin forwarded message:
From: Richard Santalesa <rsantalesa@xxxxxxxxxxx>
Date: November 29, 2006 5:44:45 PM EST
To: dave@xxxxxxxxxx
Subject: Re: [IP] more on the Vista EULA allows self-help
Reply-To: rsantalesa@xxxxxxxxxxx
Dave,
I am a lawyer and the answer to a previous email on this thread
wondering "if an ISPs Acceptable Use Policy says you cannot do
certain things, but the actual applicable law says that you cannot
be prevented from doing such things by an AUP, shouldn't the
deceived customers have a cause of action?" is a resounding no -
unless the statute specifically grants an individual cause of action.
While I haven't read the EULA in question yet, it no doubt has a
savings clause that states, roughly, that any portion deemed not
enforceable or contrary to law or public policy will be severed and
the remaining contract will be valid and in effect. Contracts
contains clauses that are put in all the time that may or may not
be enforceable at any given point based on the state of the law at
the time of the breach.
Rich Santalesa
Sent from my BlackBerry wireless handheld.
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