Shrinkwrap Licenses: An Epidemic Of Lawsuits Waiting To Happen - InformationWeek
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2/2/2007
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Cory Doctorow
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Shrinkwrap Licenses: An Epidemic Of Lawsuits Waiting To Happen

We mostly ignore the terms of shrinkwrap and clickwrap licenses, but pretty soon the lawyers are going to come sniffing around, says columnist Cory Doctorow.

Anybody who bothered to read a clickwrap or shrinkwrap agreement would never install any software, click on any link on the Web, open an account with anyone, or even shop at many retail stores. The terms of these agreements are onerous and ridiculous. We go along with the gag because we think nobody's paying any attention. But somebody's going to start paying attention soon, and when they do, the results will be disastrous for the electronic economy.

Clickwrap and shrinkwrap agreements start with the phrase READ CAREFULLY, all in caps. The phrase means, "IGNORE THIS." That's because the small print is unchangeable and outrageous.

Why read the "agreement" if you know that:

  1. No sane person would agree to its text, and
  2. Even if you disagree, no one will negotiate a better agreement with you?

We seem to have sunk to a kind of playground system of forming contracts. Tag, you agree! Lawyers will tell you that you can form a binding agreement just by following a link, stepping into a store, buying a product, or receiving an email. By standing there, shaking your head, and shouting "NO NO NO I DO NOT AGREE," you agree to let the other guy come over to your house, clean out your fridge, wear your underwear and make some long-distance calls.

For example, if you buy a downloadable movie from Amazon Unbox, you agree to let them install spyware on your computer, delete any file they don't like on your hard-drive, and cancel your viewing privileges for any reason. Of course, it goes without saying that Amazon reserves the right to modify the agreement at any time.

The worst offenders are people who sell you movies and music. They're closely seconded by people who sell you software, or provide services over the Internet. There's supposed to be a trade-off to this -- you're getting a discount in exchange for signing onto an abusive agreement. But just try and find the software -- discounted or full-price -- that doesn't come with one of these "agreements."

For example, Vista, Microsoft's new operating system, comes in a rainbow of flavors varying in price from $99 to $399, but all of them come with the same crummy terms of service, which state that "you may not work around any technical limitations in the software," and that Windows Defender, the bundled anti-malware program, can delete any program from your hard drive that Microsoft doesn't like, even if it breaks your computer.

It's bad enough when this stuff comes to us through deliberate malice, but it seems that bogus agreements can spread almost without human intervention. Google any obnoxious term or phrase from a EULA, and you'll find that the same phrase appears in a dozens -- perhaps thousands -- of EULAs around the Internet. Like snippets of DNA being passed from one virus to another as they infect the world's corporations in a pandemic of idiocy, terms of service are semi-autonomous entities.

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