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Oooh, new insight! - Journal of Omnifarious

Feb. 7th, 2006

12:05 pm - Oooh, new insight!

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I was having an argument on Slashdot, and I just had an insight about the perfect argument as to why EULA's and other point of sale contracts are categorically wrong.

Contracts are supposed to be two way affairs. Both parties get together and hammer out a legal document they can both agree to. Either side can make changes and hand it back to the other side for approval.

Point of sale contracts violate this principle. There is only the choice of buy, or not buy. There is no effective way to try to renegotiate the contract.

We sort of have point-of-sale contracts in that we have laws against stealing and shoplifting. These basically imply a societal contract of "I will not walk out of the store with something without first paying an agent of the store a price the agent agrees to.". But these are enforced by laws that everybody has input into. They are created by legislatures.

So, any point-of-sale contract beyond those in some way represents a sort of private law of that one manufacturer. It is more law than contract as there is no real negotiation allowed by the person who wants to buy something. Forcing people to keep in mind all the little private laws they've agreed to by buying something isn't in the least reasonable. So, these little private laws should not be allowed. Allowing them is tantamount to allowing private entities to usurp the role of the legislature.

In the same discussion someone else had a really interesting insight comparing current debates about copyright and old debates about slavery.

Current Mood: [mood icon] inspired

Comments:

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From:bansheewail
Date:February 7th, 2006 08:40 pm (UTC)
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Very excellent point! It is crap that we can get sicced with contracts we had no opportunity to peruse or consider (much less negotiate) just because they get tucked inside the package we took off the shelf.
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From:hattifattener
Date:February 8th, 2006 12:03 am (UTC)
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As I understand it, this is exactly the principle under which many shrinkwrap license contracts are found to be invalid. (Others are found to be invalid because there are some things you're just not allowed to make contracts about. I can't sell myself into indentured servitude, for example, even if I want to.)

I think there is a fundamental difference between laws and contracts, anyway. It's useful to be able to compare them, and talk about "the social contract", or the libertarian-capitalist ideal of an entirely contract-based society. But when you get to details, they differ. The meeting-of-minds / consensus-ad-idem is one thing that's missing from laws, but required for contracts.
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From:omnifarious
Date:February 8th, 2006 01:13 am (UTC)
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*nod* Yep, exactly.

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From:hozed
Date:February 8th, 2006 05:40 am (UTC)
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On the slavery comment.. Several of the posters seem to miss the point that the GPL fundamentally depends on copyright law for it to be enforceable. The analogy of RMS to John Brown is completely, totally, and utterly flawed.
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From:omnifarious
Date:February 8th, 2006 07:59 am (UTC)
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It is true that the GPL requires copyright law to work. OTOH, if there were no copyright, I do not think RMS would think the GPL necessary. In an Advogato post, I talk about a possible use for something like software patents given the absence of copyright law.

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From:hozed
Date:February 8th, 2006 01:16 pm (UTC)
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I'm not so sure.. If copyright didn't exist, there would be no way for Linux developers to force companies like Linksys to release source code for the wireless routers shipped with Linux on them.

An important part of copyright besides being a government-granted monopoly is that it also forces correct attribution of a work to the original author. There needs to be some legal, or at least social/economic framework to ensure that someone can't just rip-off someone else's work and claim it as their own.

I guess I do feel that something like copyright is necessary, but it should be more limited in scope and duration than what it's ended up being. The marginal incentive value increase to an author of increasing copyright from 20 years to 50 years doesn't provide any additional creative work, while the cost to society of enforcement rises the longer the term.
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From:omnifarious
Date:February 8th, 2006 01:33 pm (UTC)
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I do agree very strongly that attribution is important. :-)

As for the rest... I'm not sure. Perhaps if it were only enforced against entities that set themselves up as central points of distribution, and so it was easy to find them.

I don't think control of copying for friends in people's homes or anonymous copying from random person to random person over the net is something that's possible in a society that calls itself free.

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From:maatnofret
Date:February 8th, 2006 03:36 pm (UTC)
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