Hmmm, it still seems, Tim, like you’re criticizing a particular contract rather than the metaphor between contracts and DRM. There’s no use criticizing a metaphor too closely, afterall it is a metaphor.

We still call DRM “DRM” rather than electronic contracts right.

The contract analogy is still good despite your criticism. By continued use of a product, a customer accepts unilateral changes made by a vendor. There need not be mutual obligation, only mutual assent.

The concept of the rights of the seller ending at first sale is a natural, human instinct before it is a legal concept. Most people aren’t lawyers and are horrified to find out that they have literally no fundamental rights over the IP they buy except over the physical media. The legal profession is largely aloof and out of touch with human nature on this subject, but that doesn’t matter because these things work great on paper!

The concept of the rights of the seller ending at first sale is a natural, human instinct before it is a legal concept. Most people aren’t lawyers and are horrified to find out that they have literally no fundamental rights over the IP they buy except over the physical media. The legal profession is largely aloof and out of touch with human nature on this subject, but that doesn’t matter because these things work great on paper!

NO! Much better Idea—> Lobby for protection from such outrageous, bullying, immoral, behavior. Just make these contracts illegal.

Well, as I have noted above, it is exactly because of such abusive behavior of monopolies (or near monopolies) that Consumer Protection Laws are put into place.

Lawmakers should enact protections from these ‘contracts’

NO! Much better Idea—> Lobby for protection from such outrageous, bullying, immoral, behavior. Just make these contracts illegal.

Well, as I have noted above, it is exactly because of such abusive behavior of monopolies (or near monopolies) that Consumer Protection Laws are put into place.

Lawmakers should enact protections from these ‘contracts’

So Tim, what prevents you from going to a competitor. The DMCA does not prevent that. No, you won’t be able to bring your content with you, but here you’re merging two distinct issues: what is possible (switching to a competitor) and what is optimal (switching to a competitor with your content). By arguing the second, you want to prove the first (basically you’re saying that because you can’t swtich with your songs you can’t switch at all).

Well, the switching costs won’t be that substantial. Are you hurting. I’ll float you DRM-free songs that I have.

Rather, my point was that people often use contracts as a metaphor for DRM, and it seems to me that it’s a bad metaphor. Although some contracts do allow some of their terms to be changed uniltarerally, that’s not the kind of contract the people who equate DRM to contracts are appealing to. Contracts generally place obligations on both parties, but the DRM “contract” only puts obligations on the customer.

And yes, you could view this as just being a new contract for a new version of Microsoft’s sofware. The problem is that ordinarily, if a company offers you a contract you don’t like, (say, a bank informs you of changes in its privacy policy) you have the option of going to a competitor. But thanks to the DMCA, it’s illegal to take your content with you when you switch software vendors. Either you accept Microsoft’s terms or you have to give up your content. This is akin to having the freedom to switch banks, but your old bank gets to keep your money. As long as the DMCA is on the books, I’m going to complain about Microsoft using the leverage it provides to foist unreasonable terms on unsuspecting customers.

I would like to direct you to Ed Fosters post “A Contract Only Microsoft Can Break” at http://www.gripe2ed.com/scoop/story/2006/9/4/235357/7375

Also the “EULA Library” at http://www.gripewiki.com/index.php/EULA_Library

And “Battle of the Forms” at http://cexx.org/battle.htm

By way of a personal experience, I subscribed to Sprint several years ago and after two years I was supposed to get a $100 rebate towards a new phone. When it came time, to make a long story short, Sprint refused to honor the rebate.

You are right about each side having to abide by certain obligations. But that’s not lacking in most EULA cases — you give the seller money, they give you software. I don’t see the problem.

Of course, neither party can unilaterally and retroactively change a contract. But is that what was done in the case described? It looks like its a new set of rules for new software. I could be wrong. But if I am, I’m sure there are plenty of lawyers who will be willing to take the class-action case.

Read your EULA, and find out what restrictions come with your purchase of a license or a product (those are distinct by the way).

But what kind of contract allows one party to unilaterally and retroactively change its terms? Moreover, this is really a pretty severe restriction on the use of digital files. Backups are a fundamental part of good computer use.

Actually, many EULAs and purchase contracts contain unilateral provisions (not just in digital music or software). Knowing that would keep you from being so surprised and claiming that your “fundemental” rights are at stake.

I agree with the point of making backups, but if you didn’t realize that until too late shop around more next time.

The theory behind this is the unequal bargaining power of Joe Sixpack, who is unlikely to have a lawyer, (let alone a legal department as Microsoft does) as well as the fact that, as a monopoly (or near monopoly, depending on the Industry) consumers are in an inferior bargaining position.

This has just shown that MS is aware of how much of an inferior bargaining position consumers are in. If and when the public becomes aware of these inequitable provisions, (especially if MS were stupid enough to actually try to enforce them) we will see legislation to protect consumer rights. It is the first duty of the media, IMHO, to make the public aware.

Keep up the good work.

The theory behind this is the unequal bargaining power of Joe Sixpack, who is unlikely to have a lawyer, (let alone a legal department as Microsoft does) as well as the fact that, as a monopoly (or near monopoly, depending on the Industry) consumers are in an inferior bargaining position.

This has just shown that MS is aware of how much of an inferior bargaining position consumers are in. If and when the public becomes aware of these inequitable provisions, (especially if MS were stupid enough to actually try to enforce them) we will see legislation to protect consumer rights. It is the first duty of the media, IMHO, to make the public aware.

Keep up the good work.