more on more on the Vista EULA allows self-help

Begin forwarded message:

From: "David P. Reed" <[email protected]>
Date: November 30, 2006 7:15:37 AM EST
To: [email protected]
Cc: Richard Santalesa <[email protected]>
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 <[email protected]>
> Date: November 29, 2006 5:44:45 PM EST
> To: [email protected]
> Subject: Re: [IP] more on the Vista EULA allows self-help
> Reply-To: [email protected]
>
> Dave,
>
> 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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