Re: OK --- a question of ethics


"Jim Higgins" <me7@xxxxxxxxxxx> wrote in message
news:o5c7l19ibs387k8kfa9hgql0cd6fa1te7p@xxxxxxxxxx
> On Mon, 17 Oct 2005 10:45:04 -0200, Gerhard Fiedler
> <gefiedler@xxxxxxxxx> wrote:
>
>>Sparky Spartacus wrote:
>>
>>> I agree, BTW, that the entire EULA situation is stacked against the
>>> user; but others have posted that they have been upheld in court
>>> multiple times, so we're stuck with them.
>>
>>That's an interesting statement in this context.
>>
>>If you think that the "EULA situation is stacked against the user", it
>>wouldn't be too far-fetched to infer that you also think that the court
>>decisions regarding EULAs are unethical. (Unless you of course think it's
>>ethical to create laws and legal precedence "stacked against" someone or
>>some group.)
>>
>>If you consider these decisions unethical, it is kind of inferred that an
>>interpretation of their legality different from the court decisions could
>>be considered ethical.
>
> It gets even more interesting, Gerhard.
>
> When it comes to court rulings on EULA enforceability, only the 7th
> and 8th Federal Circuits find them enforceable. The rest consider
> them to be generally unenforceable. Earlier statements of broad
> agreement by the courts supporting enforceability are false.
>
> For reference see...
>
> "Novell v. Network Trade Center"
> http://tinyurl.com/9r5f6
> In this decision the Court said, in what it referred to as a
> "Historical Note to 17 U.S.C. § 109.,"....
>
> "16 The term 'shrinkwrap' license is used to describe the box-top
> license generally provided with the sale of software. Once the
> software package is opened the purchaser is presented with the
> license, and is supposed to then read and understand it. Once read
> the purchaser then has the option of accepting the conditions within
> the license by proceeding to use or install the software, OR THE
> PURCHASER MAY CHOOSE TO REJECT THE LICENSE AND RETURN THE UN-USED
> SOFTWARE FOR A REFUND. [ caps mine for emphasis ] The purported
> license attempts to limit the rights of possessors of the software by
> prohibiting copying and distribution of the software, and retains
> ownerships of the software with the copyright holder."
>
>
> Arizona Cartridge Remanufacturers Association Inc. v. Lexmark
> International Inc.
> http://www.eff.org/legal/cases/ACRA_v_Lexmark/ACRA_v_Lexmark_9th_circuit_ruling.pdf
> Here the EULA is upheld largely because it is readable on the outside
> of the package before sale; i.e., it isn't a standard form contract
> with certain terms unavailable until after the deal is consumated. The
> latter such form of "contract" - of which shrinkwrap EULAs not
> readable before sale are a prime example - are generally interpreted
> by the courts against the entity offering the contract.
>
>
>
> In short, the assertions that EULAs are broadly enforceable when their
> terms are unknown until the package is opened is incorrect. Only the
> 7th and 8th Federal District Courts generally uphold EULA, and they do
> not do so when the remedy of reversing the sale by return of the
> merchandise for a refund is not present.

Nicely researched and I stand corrected, at least for that ruling, of the
requirements for a refund.

Tom


.

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