OT: licenses/disclaimers/etc (was Re: OT: SCO Forum)

[Fairlight]

On Mon, Jun 26, 2006 at 06:27:39PM -0400, after drawing runes in goat's blood,
Kenneth Brody cast forth these immortal, mystical words:
> 
> ObNote:  IANAL

Noted.  However, you're knowledgeable.

> I understand that the courts decided long ago that a license which
> requires that you agree to its terms prior to seeing the license
> (such as the "sneakwrap" you refer to above) is unenforceable.  All
> terms of the license must be visible prior to breaking the seal, or
> else breaking the seal cannot constitute acceptance of the license.

That invalidates most EULA's.  You can't return media once opened (at least
nowhere I know in -this- country, anymore), and you only get to the EULA
after opening it.  This leaves you with either a piece of software you
agree to observe copyright on, on your own, or a $50+ drink coaster.  But
it would -seem- to strip the enforceability out of all but the copyright
portion of the EULA for non-service-oriented (ie., you connect to EverQuest
or Blizzard's BattleNet, so they can enforce it there on an ongoing basis
as a term of service) software that doesn't call home or require a
connection to a service.  Of course you're bound by copyright no matter
what the EULA says, I'm not questioning that.  But all the other terms they
like to stipulate are possibly null and void.

> Nor can you unilaterally bind someone to an agreement, as in the
> case of these e-mail signatures that some companies append to
> every e-mail that goes out.

Bingo.  Which goes back to the boilerplate.  Actually, that sounds very
plausible, Ken.  I'm thinking the "meeting of the minds" requirement.  You
didn't even know it was coming, much less agree to it.  You don't agree to
be bound by their terms, and wouldn't have had you been aware of them in
the first place.  Ergo, you are being unilaterally bound, which is (we
presume) not possible.  You know, if lack of proof of "meeting of the
minds" is enough to get someone out of a conspiracy charge, I'm thinking
that boilerplate doesn't stand a chance in hell.  :)

There's also the preponderance of spam, both US Postal and electronic.  If
everyone had to sift through and do something special (and different) with
each piece of mail (of either form) one received unsoliceted, that's undue
burden, I should think.  I don't think one could be expected to follow 200
sets of "rules" for different mail coming to them; it's unreasonable to
expect someone to bear that burden when they didn't 'buy into it'.

mark->