10-06-2004, 02:35 AM
unrealshadow13,Oct 5 2004, 06:08 PM Wrote:I don't know much about this except for a /. headline. What parts of the TOS did they violate in particular?
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I'm actually shocked that the ruling even makes a TOS enforcable on a piece of commercial software. I really don't see how a TOS can be considered a legally binding contract. I can't read a TOS until after I've already bought the product. You cannot agree to a contract you haven't read. If I decide I don't agree with the TOS, I can't return the product because no store will take back an opened piece of software (and rightly so).
A contract is also unenforcable if it does not contain "mutual consideration". Each party must get something of value for a contract to be valid. The store gets my money, and I get a CD-ROM. The "mutual consideration", and therefore the contract, seems to be between me and the store I bought the software from. Where's the "mutual consideration" between me and the company that produced the software? There's about a bajillion middlemen between me and them. Surely I cannot have agreed to contracts to ALL of these people.
Also, what if I get my 2 year old son to click through the TOS? A person under 18 cannot agree to a contract. What if I get someone else to click through the TOS? I certainly didn't agree to the contract, but the software might still be installed on my computer. What if I write a piece of software that strips a TOS out of a CD before I install it?
A contract also cannot supercede law (eg, a contract that says "by agreeing to this contract, you allow me to come over to your house and punch you in the face" is not a valid contract because assault is against the law). There are a whole mess of shady clauses in most TOS's that violate Fair Use laws.
I don't think this is the last we've heard of this case.