A Small, Grudging Advance for Contract Law

by on December 21, 2004 · 6 comments

Self-styled Internet lawyer Ira Rothken has gotten a settlement from software companies and retailers that should reform the shrink-wrap license conundrum.

When the terms of a shrink-wrap license make the license enforceable upon opening the package and include a return policy you don’t accept, how do you decline the terms and return the product? If there ever was a conundrum, this is one, folks.

In Washington, lots of complaints about EULAs (End-User License Agreements) are addressed to regulators and politicians. But EULAs are contracts. The resolution to problems with EULAs lies in contract law – like the doctrine of adhesion contracts, about which I was expert in my law school contracts class. (Um, I’m not any more.) Many terms in EULAs may ultimately be stricken under this doctrine. So, good for you, Ira, and watch out, EULA-writers!

  • Jim Harper

    ComScore, for example, may or may not be fully and adequately disclosing what they do with their MarketScore research tool. It’s tough when so much of this is new to consumers and difficult to understand. But they’ve gotta do it in order to form an adequate, enforceable contract.

  • Jim Harper

    ComScore, for example, may or may not be fully and adequately disclosing what they do with their MarketScore research tool. It’s tough when so much of this is new to consumers and difficult to understand. But they’ve gotta do it in order to form an adequate, enforceable contract.

  • Grant Gould

    In the absence of some future utopia in which putting up a contract written by a lawyer is rightly regarded as prima facie evidence of intent to defraud, what these EULAs really need is some sort of translator. Given that they’re mostly a cobbling-together of stock phrases, with no more than a sentence or two of original content, it should be quite simple to build a program to find the “and your soul and firstborn child” clauses hiding in them and flag them for actual human attention. But I’m concerned that writing such a program would run afoul of the unlicensed practice of law regs. Any advice?

  • Grant Gould

    In the absence of some future utopia in which putting up a contract written by a lawyer is rightly regarded as prima facie evidence of intent to defraud, what these EULAs really need is some sort of translator. Given that they’re mostly a cobbling-together of stock phrases, with no more than a sentence or two of original content, it should be quite simple to build a program to find the “and your soul and firstborn child” clauses hiding in them and flag them for actual human attention. But I’m concerned that writing such a program would run afoul of the unlicensed practice of law regs. Any advice?

  • Jim Harper

    I’m not in a position to advise you on whether building a EULA interpreter would constitute the practice of law. Send big $$ and I’ll think about it.

    In the absence of a EULA interpreter, you should be able to rely on the adhesion doctrine to avoid really weird, unilateral contract terms. (Of course, no one wants to be the one to bring that case. You might prefer giving up your kid.)

    There’s lots to do in this area before the law is settled and we’ve only seen the first stages of what software contracts should look like. Ultimately, will we buy software or license it? Will software producers warrant its fitness for particular purposes? The list goes on and on.

  • Jim Harper

    I’m not in a position to advise you on whether building a EULA interpreter would constitute the practice of law. Send big $$ and I’ll think about it.

    In the absence of a EULA interpreter, you should be able to rely on the adhesion doctrine to avoid really weird, unilateral contract terms. (Of course, no one wants to be the one to bring that case. You might prefer giving up your kid.)

    There’s lots to do in this area before the law is settled and we’ve only seen the first stages of what software contracts should look like. Ultimately, will we buy software or license it? Will software producers warrant its fitness for particular purposes? The list goes on and on.

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