Oooh, new insight! - Journal of Omnifarious
Feb. 7th, 2006
12:05 pm - Oooh, new insight!
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.