Re: Electronic Publication

In article <ddfr-40F46A.10274227112005@xxxxxxxxxxxxxxxxxxxxx>,
David Friedman <ddfr@xxxxxxxxxxxxxxxxxxxxxxxxx> wrote:
>In article <IqML5r.CIp@xxxxxxxxxxx>, whheydt@xxxxxxxxxxx (Wilson Heydt)
>wrote:
>
>> >People may, however--landlords not uncommonly do--sell you something on
>> >condition that you give them permission to search your house under some
>> >comditions, in order to make sure that you are abiding by other terms of
>> >their contract with you.
>>
>> At elast in California, they're required to give you 24 hours notice, unless
>> it's an emergency.
>
>If California did not have such a requirement, would you regard someone
>offering you a rental contract--which you could, of course, decline--as
>violating your rights if it provided for inspection?

If California did not ahve such a law, I'd need to negotiate over one
every time I was on either side of a rental agreement. Without such a
law, all landlords could agree to include a "no advance notice" clause
and refuuse to rent to anyone that won't agree to *that*, thus putting
all renters in the position of agreeing or going homeless.

Isn't there a principle of "equity" in law?

>> Nor would the landlord have the right to go rummaging
>> through your drawers. Such an inspection is purely to inspect the physical
>> property.
>
>The physical property is what he needs to inspect in order to check that
>you are abiding by the terms of your rental agreement.

Yes, and what's stored is largely irrelevant to that, but it could be put
into a contract.

>> Now if a company wants to give me 24 hours notice to have me show
>> them that I possess a puchrased copy of a specific DVD, then the situation is
>> a lot closer. But then, I haven't been offered a contract with the ability
>> to negotiate the terms prior to purchase of a DVD the way I can when renting
>> a house. (Is it worth noting that, so far as i know, shrink-wrap licenses
>> have never actually been put to a full legal test? The EFFs claims against
>> Sony/BMG include one about "unconscionable" clauses in their EULA and there
>> is stuff in the complaint about "contract of adhesion".)
>
>And do you agree with the idea--that no contract is valid unless
>individually negotiated? If you were running, say, a car rental agency,
>would it be in the interest of either you or your customers if the law
>required that the terms of every individual rental agreement be
>separately negotiated between you and the desk clerk at the rental
>agency?

Comes back to "equity". I am at a distinct disadvantage when attempting
to alter terms and conditions with Sony/BMG or Microsoft. AT what point
do the courts get to decide that some contract terms are completely unfair
and one sided?

>> >> Therefore, any set of computer programs that effectively searches my
>> >> file cabinets without a warrant is a violation of my rights.
>> >
>> >No more than a non-disclosure agreement is a violation of your right of
>> >free speech.
>>
>> You can chose not to sign an NDA or you can negotiate its terms.
>
>Whether you can negotiate the terms depends on the party offering
>them--he might have a standard contract, take it or leave it.

Consider the MediaMax DRM software (it's the *other* DRM software Sony/BMG
has been using). It installs software on your computer even if you decline
the EULA--all without telling you that it's doing it. In that case, they've
modified your machine without any agreement at all.

>> You also get
>> to see the full text of the NDA up front. Or are you claiming that an NDA is
>> allowed to abridge civil rights?
>
>You get to see the text of the NDA--and the fact that it is enforceable
>only as a result of your agreeing to it is the reason it isn't abridging
>your civil rights. On the contrary--one of my rights is freedom of
>contract, and not permitting me to sign an NDA is an abridgement of it.

There are places in which you may not legally sign away rights. Any contract
that requires you to do so is not only not enforcible, but may subject the
person that asks you to sign the agreement to prosecution. That would have
been the case if the SCA had attempted to use the waiver put forth under
Tony Provine had been put into effect in Australia.

--
Hal Heydt
Albany, CA

My dime, my opinions.
.

Relevant Pages

  • Re: Electronic Publication
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