OT: Contract Law and such (was: Re: SCO/Linux/Filepro consultant needed)

[Fairlight]

When asked his whereabouts on Mon, Feb 02, 2009 at 10:14:22AM -0500,
GCC Consulting took the fifth, drank it, and then slurred:
> 
> Let's see, I hit reply and sent the message back to the sender.  I did what
> they asked.
> 
> I still have the message they sent me.  Clear proof that I was an intended
> recipient of the email.
> 
> I may not know who the other parties are; I may not know who the sender is,
> but as you pointed out, it was addressed to me.

Exactly.

> Now for the rest of the boiler plate, I don't know how legal it is to
> disseminate a document once you have been notified.  Be interesting case
> law.

To the best of my knowledge, it's entirely your property, so long as no
copyright or IP laws were broken in the original transmission.  If someone
sends you an mp3 of a copyrighted song in email, it doesn't suddenly become
yours--it was already encumbered before the other party sent it, and they
can't override those rights and restrictions.

But original content?  It's like getting something in the USPS mail.  You
have no obligation to do a damned thing with it one way or another.  You
get it, it's yours.

Actually, as I have been roughly explained contract law by a few people,
there's no way in hell that contract is binding.  You've had no chance
to agree to any such agreement that you won't do so.  There's no meeting
of the minds--at all.  You can't shrinkwrap license your bloody email,
there's just no way in hell.  And if someone wants to test case law, turn
around and put in a boilerplate that the recipient of this mail agrees
by opening the message to send $1000 to the originator within 30 days
of receipt.  Then mail it out to a mailing list like this one.  When
it doesn't get paid by a single entity, start taking them to court.  I
practically guarantee that email boilerplate will get struck down, and
we've then got our precedent.

No judge in their right mind would uphold an "agreement" like that.  No
prior agreement, no consent, and don't even get me started on what if
the recipient was under age and not legally able to bind themselves to a
contract.  But if you can't uphold an agreement to that effect for lack of
prior consent, you can't uphold an agreement like that to -any- effect for
that reason.

IANAL, but I think those things are a complete waste of bytes.

Actually, going back to the "shrinkwrap/clickwrap license" thing, you
know THAT would make interesting case law.  Kids "buy" (ie., license)
games all the time.  Nobody under 18 is capable of legally entering into a
contract without their guardian's assistance and approval, TTBOMK.  That
means that alllllll those game licenses that are supposedly agreed to
are...well, invalid contracts in those instances, and technically speaking,
the publishers are therefore potentially practising fraud after a sort.
People are buying for something they can't use, which in most cases can't
be returned once opened, and supposedly being bound to a contract as
indicated by their "acceptance" via use of the product.  Except legally,
they can't be binding themselves if they're underage.  And you can't just
assume that a parent bound themselves to that if they're not even made a
party to the contract explicitly.

That argument could be one of the best ways to get the precedent on
shrinkwrap licenses reversed, the more I think about it.  All you need to
do is follow up on some kids buying titles that aren't "M" rated (ie., the
parent would not have had to legally consent to the kid having it).

Good grief, think of Blizzard with over ten -million- kids playing World of
Warcraft.  A class action suit by parents could not only possibly get the
ridiculous existing precedent reversed, but totally tear apart Blizzard,
and possibly even Vivendi.  The kids don't have the legal ability to agree
to the Terms of Use that are supposedly binding.  And once they fall
over, EA would surely be the very next party sent to the gallows--they've
generated so much hate from the consumer community (I'm talking as a whole,
not just hardcore gamers--casual adults playing things like The Sims,
Spore, etc.) that I've no doubt there'd be a stampede to get it done.
There's already an interesting DRM case against EA right now related to
Spore and SecuROM.  Actually, I think there are several.  I think there may
be over for Command and Conquer 3 as well, which uses the same DRM.
Direct2Drive has taken to prominently advertising the presence of DRM on EA
titles in their product descriptions, presumably to stay out of the firing
line.

mark->
-- 
"I'm not subtle. I'm not pretty, and I'll piss off a lot of people along
the way. But I'll get the job done" --Captain Matthew Gideon, "Crusade"