[Date Prev][Date Next][Thread Prev][Thread Next][Date Index][Thread Index]

Re: DVD legal maneuvers



David Wagner writes:

> I don't think I'm entirely convinced of your position yet -- after all,
> there is plenty of precedent where contractual clauses are not considered
> binding, even if they were agreed to (e.g., where one of the parties is
> a minor; and other cases where society has decided that allowing certain
> types of agreements is not in society's best interests), and this seems
> like a potentially subtle area of law with ramifications that I don't
> understand -- but I agree that your position doesn't seem unreasonable.
> Sorry for the earlier strident replies.

The point is not to offer a legal argument, or to go by precedent.
The issue is simply whether a person who agrees to abide by contract terms
can justifiably ignore those terms because a third party says so.  It is
true that an incompetent person cannot be expected to make contracts,
hence we can add "or incompetent" to the list of dirty names: fraud,
liar, cheat, or incompetent.

> Note there is a very important difference between `displaying' Xing's
> request not to reverse engineer, and between the reverse engineer explicitly
> *agreeing* not to undertake any reverse engineering efforts.  You can show
> me any (proposed) contract you like, but just because I've seen it doesn't
> mean I've agreed to be bound by it.

True, but license agreements universally have an "I accept" or "Agree"
button that you have to click on to proceed, or they require some other
affirmative action to indicate acceptance (breaking a seal, etc.).

> Again, asking whether the reverse engineer has `seen' the license agreement
> proposed by Xing is irrelevant -- if we want to analyze this as a contractual
> agreement, the relevant question is: Has the reverse engineer *agreed* to
> abide by this (proposed) license?
>
> Right?

Yes, that seems right, but the arguments given earlier apply equally to
the question of whether the person agreed.  License agreements require
acceptance, and no one has claimed that the software license agreement
was bypassed during installation.