Spelling out the license - protesting too much

Michael J. Lew michaell at unimelb.edu.au
Wed Nov 23 17:10:54 CST 2005

At 8:47 AM -0600 23/11/05, David Bovill wrote:

>To avoid list clutter it would be a simple
>policy to add a license url to the default email header, and to add a
>EULA to the email list sign up process - that way everyone is clear
>what the terms of posting code to the list are.

I can't let that comment go without putting my oar in. Do not mislead 
yourself into thinking that a sign up EULA would make anyone clear 
what the terms of posting code to the list are.

EULAs are most often simply agreed to by the users without being 
read. I am constantly amazed that anyone is prepared to kid 
themselves that EULAs should be legally enforceable. It may make 
legal systems work smoothly to uphold a fiction that people read, 
understand and agree to the terms in EULAs, but it is simply untrue 
in the majority of cases. EULAs are most often simply agreed to by 
the users without being read.

Last week I bought a fire-wire cable for my iPod at an Apple dealer 
in Melbourne, Next Byte. I paid for it, put it into my backpack and 
started to leave, but the salesman rushed to stop me and asked that I 
sign long cash register docket that included "I hereby accept the 
terms and conditions..." There were five terms and conditions on the 
front of the docket and 14 on the back, including one that uses 
"effect" when the clear intention is "affect". There was no pretence 
that I should read the terms and conditions prior to signing my 
assent. A contract for purchasing a fire-wire cable? Bloody hell, 
we've gone mad! I signed it (without reading it) because I wanted the 
docket as a curio, but I dare say it will simply be the first of many 
that I am expected to sign.

The docket says repeatedly that "Full terms and conditions can be 
found on www.nextbyte.com.au." Does that imply that there are more? I 
couldn't find any on that website... In Australia purchasers have a 
number of statutory rights that can not be waived. Many contracts of 
sale attempt, knowingly or not, to bypass, diminish or distract from 
those rights. Item 7.4 of the terms and conditions is that "The 
customer has not relied upon any representation made by Next Byte or 
upon the skill and judgement of Next Byte...", so even if you did, 
you didn't (even if you think you did because you didn't read the 
document that says you didn't. It sounds like something that Donald 
Rumsfeld might enjoy.

In my opinion a document or EULA that is proffered for a signature 
with no expectation that both parties know and understand the 
contents should be as legally enforceable as toilet paper. Maybe I'm 
a dummy.

Michael J. Lew

Senior Lecturer
Department of Pharmacology
The University of Melbourne
Parkville 3010

Phone +613 8344 8304

New email address: michaell at unimelb.edu.au

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