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Reader Voices: Terms of Impairment

By Ed Foster, Section The Gripelog
Posted on Mon Jun 28, 2004 at 12:28:05 AM PDT

If we wish to subject sneakwrap licenses to increased public scrutiny, can we do so without violating the terns of the licenses themselves? My recent efforts to expose nasty license terms have readers pondering this question.


Several readers pointed out that the excerpts I quoted from Hilton's incredible privacy policy in last week's GripeLog column were forbidden by Hilton's terms. "You have violated their agreement by posting direct quotes from their web site," wrote one reader. "Hilton can infer they were acquired by one of the prescribed means: 'You will not use any robot, spider, other automatic device, or manual process to monitor or copy the Site or the contents or information (including the Information) contained therein without our prior express written consent.' Of course, so have I in including content from their web site. This also means that one could not even print out the contents of their agreements."

A similar situation arose a few months ago when I wrote about a site usage agreement that banned all visitors to the website from criticizing the company or its products. "It's like something out of Alice in Wonderland," wrote another reader. "The only way you can criticize them is if you don't read them. But how can you criticize them if you can't see them?"

As unlikely as it might be that such terms could be deemed enforceable, a correspondent with some legal expertise believes there are some possible pitfalls. "As long as one is excerpting the text for purpose of public commentary, it's allowed on fair use and fundamental public policy grounds," the reader wrote. "But in the current judicial climate, it would not be surprising to see a court determine that a contract has been formed that allows the licensor to puts limits on such use."

Fortunately, nobody's sued me yet. But that's not to say it can't happen, particularly as we begin doing full-fledged "license comparisons" in what I hope will be the near future. Can we criticize sneakwrap licenses without running afoul of them? The only way to find out for sure is to do it.

< Compaq's Halfway Warranty | The Can-Spy Act? >


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Reader Voices: Terms of Impairment | 5 comments (5 topical) | Post A Comment
Be ready[ Reply to This ] (none / 0) (#1)
by wantobe on Tue Jun 29, 2004 at 02:43:26 AM PDT

It's almost a given that, if you piss someone off enough during this process, you will be issued a cease and desist order at a minimum. Obviously we all hope that nothing would come of such posturing, and that you would prevail if some company (or companies) actually took you to court, but as you quoted one person as saying, given today's judicial climate such dead-simple principles as fair use and common sense aren't necessarily going to be given consideration.

I hope you're prepared, Ed. I support you and have a lot of respect for people willing to stand up to these bullies, but I hope you're ready.


Rob Miles
--
There are 10 kinds of people in the world; those who understand binary and those who don't.
[ Reply to This ]



Business imposed policy Licenses[ Reply to This ] (none / 0) (#2)
by Anonymous User on Wed Jun 30, 2004 at 08:38:22 AM PDT

Seems the Feds are not doing a good job legislating the problems created by new technology. My answer is to put some control back in the hands of the people. Allow local government and consumer groups to review these crazy business policies, sneakwrap licenses, terms etc. A license or permit for businesses to impose their license or policies at local levels. Businesses would think more realistically about their policies and put a damper on some of the insanity designed to deprive people of their basic rights as a consumer or sometimes as citizens or legal residents. States and cities have certain requirements for professionals, businesses, construction, etc. and require them to be licensed or get permits. Why not expect similar guidelines for those national companies who want to impose THEIR licenses and policies to the local consumers????

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Isn't turnabout fair play?[ Reply to This ] (none / 0) (#3)
by mobeus on Wed Jun 30, 2004 at 10:43:05 AM PDT

I don't claim to understand all the licensing issues, but, why couldn't you do the same thing they do to indemnify yourself - put a policy on your website that anyone accessing any portion of it, or getting information from someone who accessed it, gives you permission to to freely quote and comment on their website? Then you could say you had their permission since the only way they could present evidence against you is to access your web site. Sometimes the best defense is a strong offense. In that same vein - why can't an ISP set up flood replies to spammers that break some sort of law? After all, they have a blocklist full of them. Make it so the spammer can't find the stupid people that reply amongst the torrent of black hole replies, thus rendering their business model void. That's the only way to stop them. The spammer couldn't bring a complaint against the ISP doing the flooding since they are breaking the law. Hmmmmmmm..... Probably a million holes to this approach as I'm really unqualified in this area, but the gist is that we need ideas to become more proactive on this as a community. They come up with more creative ways around defense mechanisms, maybe it's time to add some offense.

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Loyal Reader Support[ Reply to This ] (none / 0) (#4)
by Anonymous User on Wed Jun 30, 2004 at 12:30:15 PM PDT

I like the Turn around is fair comment on posting your own web site terms of use. I also think your upcomming license comparisons will be supported by your readers. Any attempt by exposed companies to hassle you, will find themselves stomped on by your vast array of loyalists.

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The whole licensing business....[ Reply to This ] (none / 0) (#5)
by plusf on Tue Jul 13, 2004 at 03:36:41 PM PDT

what if.... [sorry, i used to work for hp...] the software vendors offered a multi-user license package for all of their products on a family basis?
i'd like three copies of every package i like: one for my desktop pc, one for my wife'd desktop pc, and one for my laptop.
i'd be willing to pay an extra ten per cent over street prices to get that, the extra revenue would be a windfall for the vendors because the alternative is very likely that i wouldn't buy three copies at all, and obviously for many people in the world, they'd just buy pirate copies or pirate the s/w themselves!
hmmmmm?

plusaf.com
[ Reply to This ]


Reader Voices: Terms of Impairment | 5 comments (5 topical) | Post A Comment
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