DISQUS

DISQUS Hello! The Technology Liberation Front is using DISQUS, a powerful comment system, to manage its comments. Learn more.

Community Page

The Technology Liberation Front

The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.
Jump to original thread »
Author

Freedom of Contract includes Freedom from Contract

Started by TLF · 8 months ago

Alex’s excellent post on the enforceability of shrink-wrap contracts produced a lively debate that’s worth checking out. In particular, my friend Wilson mounts a spirited defense of the proposition that if a customer has a reasonable expectation that a Gateway computer will ... Continue reading »

4 comments

  • Ryan Radia

    8 months ago

    So where should libertarians draw the line on enforcing EULAs? Let's say I download and pay for a piece of software, and then as I'm installing it, I'm presented with a EULA that I subsequently accept, even though I wasn't aware of the license terms at the point of sale. Is this EULA enforceable? Is it relevant to consider the ease with which I'm able to return the software and get my money back if I refuse to accept the terms?

    Or what if I somehow hack the software such that I'm able to install it without ever hitting the 'I agree' button on the EULA screen? Do the terms of the EULA still hold the force of law? Is the fact that a EULA clearly applied to the software sufficient to make it enforceable regardless of any workarounds?

    One one hand, assenting to a contract if it's the only way to actually use a program you've already purchased seems like it shouldn't be enforceable. Then again, clicking 'I agree' is like agreeing to a contract, even if it's the only way to use software.
    reply
  • AlexHarris

    8 months ago

    This is essentially the difference between option 2 and option 3 in my original post. I think that it's more compelling to say that when I purchase a piece of software, I hand over the money expecting that the software is now mine, period. In other words, our transaction has created a contract whereby I'm buying the program (not just the disc, which when I put it in my computer requires me to form a contract in order to do anything with). When I get home and try to install the software, the sale has already taken place, so requiring me to agree to something else to use what's mine is unjust. Those terms should not be enforced.
    reply
  • AlexHarris

    8 months ago

    I should also add that my reason for treating the sale as being of the program, not just the disc, is that the sale would be governed by the default warranty of merchantability that says that the seller warrants that the product it's selling is reasonably fit for its purpose (namely, letting me use software, not giving me an expensive coaster).
    reply
  • Don Marti

    8 months ago

    Is the entire contract available to the customer before purchase? If not, the customer can probably take the vendor to Small Claims Court, which can be very expensive for large, evil, junket-in-Aspen-funding companies to deal with.
    reply

Add New Comment

Returning? Login