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more on more on the Vista EULA allows self-help
From: David Farber <dave () farber net>
Date: Thu, 30 Nov 2006 09:54:57 -0500

Begin forwarded message:

From: "David P. Reed" <dpreed () reed com>
Date: November 30, 2006 7:15:37 AM EST
To: dave () farber net
Cc: Richard Santalesa <rsantalesa () verizon net>
Subject: Re: [IP] more on more on the Vista EULA allows self-help

Richard's response clarifying the legal issue was very helpful. So let's suppose:

1) Carl is right that EULA's contain many assertions that users might interpret as rules they must follow, but which in fact are bogus or misleading.

2) There is a strong incentive to EULA writers to use misleading EULAs as a way to make users feel threatened (opening the case voids your warranty, FBI will prosecute you for copying a videoitape, legal immigrants who vote will be arrested, and other overstatements to instill fear come to mind).

3) there is no disincentive to those who write such EULAs (no harm no foul, as Richard suggests).

What should someone who cares about customer freedom to use their purchased product to the greatest extent, without fear, do?

1) Create a website that analyzes EULAs and separates the lies and distortions from the true meaning. (there aren't that many EULAs, a collective of law professors could make light work of it, as each new one comes on line).

2) measure the actual frequency of such problems, to demonstrate the level of concern.

3) use that resulting data to seek a legislative redress or a civil class action, allowing this sort of thing to become a cause of action, so that such deception and distortion are prevented at the source.

Reasonable plan? It would tke lawyers who are not seeking jobs with telecom or computer companies or their lobbyists to carry it out.

The regulatory solution is probably not going to appeal to the libertarian contingent. I've always wondered what the libertarian response is to manage duplicitous vendors. Presumably it is lawsuit based. So making a more liquid market of lawsuits would probably be an acceptable solution, thus the database of bad EULA terms.

David Farber wrote:

Begin forwarded message:

From: Richard Santalesa <rsantalesa () verizon net>
Date: November 29, 2006 5:44:45 PM EST
To: dave () farber net
Subject: Re: [IP] more on the Vista EULA allows self-help
Reply-To: rsantalesa () verizon net


I am a lawyer and the answer to a previous email on this thread wondering "if an ISPs Acceptable Use Policy says you cannot do certain things, but the actual applicable law says that you cannot be prevented from doing such things by an AUP, shouldn't the deceived customers have a cause of action?" is a resounding no - unless the statute specifically grants an individual cause of action.

While I haven't read the EULA in question yet, it no doubt has a savings clause that states, roughly, that any portion deemed not enforceable or contrary to law or public policy will be severed and the remaining contract will be valid and in effect. Contracts contains clauses that are put in all the time that may or may not be enforceable at any given point based on the state of the law at the time of the breach.

Rich Santalesa

Sent from my BlackBerry wireless handheld.

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