Comments on: EULA Developments

By: madisonian.net » EULA discussion

madisonian.net » EULA discussion — Tue, 13 Sep 2005 14:41:41 +0000

[...] Mike’s previous post re. the recent EULA cases are quite good, as are the posts to which he links. I don’t have much to add, except for a little “off the top of my head” ramble. Reading over them, I found myself nodding and in basic agreement but still wondering whether we’re missing something important. Perhaps this isn’t it, but might the death of assent itself be a (systemic) harm that we find troublesome. First, if/when the exception (actual assent not really required, trivial manifestations will be deemed sufficient) becomes the rule, it seems to me that many of the advantages of contract as a means for efficient private ordering are put at risk. Second, without assent as a meaningful component of contract law, contracts begin to look more like instruments for “thing definition” than for defining the relationship between parties. This seems troublesome because the relationship between contracting parties is itself commodified (or “thingified”). Trackback URL: http://madisonian.net/archives/2005/09/13/eula-discussion/trackback/ [...]

By: Seth Finkelstein

Seth Finkelstein — Thu, 08 Sep 2005 16:20:51 +0000

The answer to #2 is that law isn’t the same as technology. One might as well say: If someone can make destruct-disabling aftermarket products for supposed “single-use” printer cartridges, why should they be prohibited by law from selling it?
(or even, code == speech, telling others how to disable the destruct!)

By: Mark McKenna

Mark McKenna — Wed, 07 Sep 2005 20:16:22 +0000

Mike -

It seems to me that the answer to Hard Question #2 is that self-destructing single use cartridges might be engineered around. That is, if it’s worth it for other companies to enter replacement markets, then they’re likely to figure out a way around the technological limitations (as long as they’re allowed to). Granted it makes entry more costly and probably less efficient, but at least it’s possible. Not so with contractual degradation.

By: Copyfight

Copyfight — Sat, 03 Sep 2005 18:58:23 +0000

The Latest IP Crime: “Box-Wrap” Patent Infringement

What’s that, you ask? Evidently, it’s when you ignore the terms written on the side of Lexmark printer cartridge box, refilling the cartridge with ink even when the company has designated it “single use only.” According to the Ninth Circuit…

By: Inside Opinions: Legal Blogs

Inside Opinions: Legal Blogs — Fri, 02 Sep 2005 20:54:15 +0000

The problem of online contracts

Three cases decided recently came to different conclusions on the still open questions of whether click-wrap licenses are enforceable and what actions can they legitimately bind. In BnetD v. Blizzard, the 8th Circuit Court of Appeals held that click-wr…

By: Technology & Marketing Law Blog

Technology & Marketing Law Blog — Fri, 02 Sep 2005 17:29:57 +0000

Blizzard and Arizona Cartridge

There are several thoughtful posts on other blogs criticizing 8th and 9th Circuits’ recent decisions in Davidson & Associates (d/b/a…