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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.
February 2, 2007
4 Min Read
Indeed, when rocker Billy Bragg read the fine print on the MySpace user agreement, he discovered that it appeared that site owner Rupert Murdoch was laying claim to copyrights to every song uploaded to the site, in a silent, sinister land-grab that turned the media baron into the world's most prolific and indiscriminate hoarder of garage-band tunes.
However, the EULA that got Bragg upset wasn't a Murdoch innovation -- it dates back to the earliest days of the service. It seems to have been posted at a time when the garage entrepreneurs who built MySpace were in no position to hire pricey counsel -- something borne out by the fact that the old MySpace EULA appears nearly verbatim on many other services around the Internet. It's not going very far out on a limb to speculate that MySpace's founders merely copied a EULA they found somewhere else, without even reading it, and that when Murdoch's due diligence attorneys were preparing to buy MySpace for $600,000,000, Murdoch's attorneys couldn't be bothered to read the terms of service.
In the attorneys' defense, EULAese is so mind-numbingly boring that you can hardly blame them.
If you wanted to really be careful about this stuff, you'd prohibit every employee at your office from clicking on any link, installing any program, creating accounts, or signing for parcels. You wouldn't even let employees make a run to Best Buy for some CD blanks -- have you seen the fine print on their credit-card slips? After all, these people are entering into "agreements" on behalf of their employer -- agreements to allow spyware onto your network, to not "work around any technical limitations in their software," and they're agreeing to let malicious software delete arbitrary files from their systems.
Which raises the question -- why are we playing host to these infectious agents? If they're not read by customers or companies, why bother with them?
So far, very few of us have been really bitten by EULAs, but that's because EULAs are generally associated with companies who have products or services they're hoping you'll use, and enforcing their EULAs could cost them business.
But that was the theory with patents, too. So long as everyone with a huge portfolio of unexamined, overlapping, generous patents was competing with similarly situated manufacturers, there was a mutually assured destruction -- a kind of detente represented by cross-licensing deals for patent portfolios.
But the rise of the patent troll changed all that. Patent trolls don't make products. They make lawsuits. They buy up the ridiculous patents of failed companies and sue the everloving hell out of everyone they can find, building up a war-chest from easy victories against little guys that can be used to fund more serious campaigns against larger organizations. Since there are no products to disrupt with a countersuit, there's no mutually assured destruction.
If a shakedown artist can buy up some bogus patents and use them to put the screws to you, then it's only a matter of time until the same grifters latch onto the innumerable "agreements" that your company has formed with a desperate dot-bomb looking for an exit strategy.
More importantly, these "agreements" make a mockery of the law and of the very idea of forming agreements. Civilization starts with the idea of a real agreement -- for example, "We crap here and we sleep there, OK?" -- and if we reduce the noble agreement to a schoolyard game of no-takebacks, we erode the bedrock of civilization itself.
Cory says: "READ CAREFULLY. By reading this article, you agree, on behalf of your employer, to release me from all obligations and waivers arising from any and all NON-NEGOTIATED agreements, licenses, terms-of-service, shrinkwrap, clickwrap, browsewrap, confidentiality, non-disclosure, non-compete and acceptable use policies ("BOGUS AGREEMENTS") that I have entered into with your employer, its partners, licensors, agents and assigns, in perpetuity, without prejudice to my ongoing rights and privileges. You further represent that you have the authority to release me from any BOGUS AGREEMENTS on behalf of your employer."
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