Path: utzoo!utgpu!news-server.csri.toronto.edu!rutgers!bellcore!uunet!optilink!digi!kgallagh From: kgallagh@digi.lonestar.org (Kevin Gallagher) Newsgroups: comp.sys.ibm.pc.misc Subject: Re: LEGALITY OF SELLING SOFTWARE Message-ID: <1991Feb13.085216.23042@digi.lonestar.org> Date: 13 Feb 91 08:52:16 GMT References: <3929@orbit.cts.com> <38899@cup.portal.com> <70629@microsoft.UUCP> Distribution: usa Organization: DSC Communications Corp, Plano, TX Lines: 88 In article <70629@microsoft.UUCP> fredf@microsoft.UUCP (Fred FREELAND) writes: >We're talking about opening a box that contains a clearly marked envelope of >diskettes. On the outside of the envelope are the words, "IMPORTANT - READ >CAREFULLY BEFORE OPENING. By opening this sealed disk package, you indicate >your acceptance of the following Microsoft License Agreement." > >[stuff deleted] > >The whole point is, that if you are a normal person, with normal faculties and >a normal understanding of the language, opening the disk envelope is, by >definition, agreement with the terms of the licensing agreement. It doesn't >matter if you think it's bogus or not. If you opened the envelope you have >agreed, like it or not. > You seem to hold the position that anything placed upon the envelope by Microsoft, and declared to be binding on any individual who opens the envelope, is in fact binding, simply because Microsoft wishes it so. You seem to feel that a court of law will treat the act of opening a sealed envelope as legally equivalent to signing ones name on a contract. I submit to you that such a view is an extreme one lacking any legal support. Suppose Microsoft, among all the other tiny print on the disk envelope, added the following sentence to its license: Furthermore, if this software was obtained for use by a place of business, then the act of opening the envelope by any employee of that place of business is sufficient to bind that business, and all current and future employees to the terms of this license. Do you honestly believe that ANY court of law would uphold such terms? Even if I signed a license containing such terms and mailed it to Microsoft, they would not be able to hold my employer and fellow employees to the terms of the license. Just because someone can put together a plausable sounding terms on an envelope, call it a license, and declare that any individual who opens the envelope agrees to the terms written thereon does not make it so! It is truly hard for me to understand that anyone could actually believe that these sealed envelope "licenses" are valid. But for arguments sake, let's suppose that they are valid somewhere. I suggest that Microsoft would find it impossible to enforce the license in any court of law, because they would find it impossible to produce evidence that the user of the software is the individual who opened the envelope. Consider the following scenario. I go to a retail store and purchase a copy of Microsoft C. But I remind the salesman that the last time I purchased software from this store, I had problems with several disks being bad. I do not want to make another 30 mile return trip. He offers to check out all the disks for me while I go across the street and grab some lunch. When I come back, he tells me that the disks all checked out. So I take the package home. When I open the box, I discover that the disks were placed into a new blank envelope. The original envelope, with the Microsoft license printed on it, is no where to be found. Or, try this on for size. I bring home Microsoft C and ask my 6 year old daughter to open the envelope containing the disks. In neither case did I break the seal on the envelope. By law, my daughter is not old enough to enter into a binding contract (or license). So, even though she broke the seal, she is not bound by the terms of the license. Of course, since I did not open the envelope, I am not bound by the license, either. If Microsoft ever takes anyone to court over one of these "licenses", it will first have to prove that the accused individual actually opened the envelope. Assuming the accused chooses NOT to take the stand as a witness, Microsoft cannot even get to first base. The case gets thrown out of court because Microsoft cannot prove that the accused opened the envelope. However, if, by some luck, it is able to prove that the accused opened the envelope, it still must succeed in proving that the act of opening a sealed envelope is the legal equivalent of signing ones name to a contract and agreeing to the terms contained therein. I rate the chance of success as slim to none. Consider that most theater and sports tickets, nowadays, have small print on the back stating that the purchaser of the ticket agrees that the theater or sports arena is relieved of all liability if anything were to happen to the purchaser while at the theater or stadium. In most jurisdictions, such disclaimers on the back of adminision tickets hold no legal standing. -- ---------------------------------------------------------------------------- Kevin Gallagher kgallagh@digi.lonestar.org OR ...!uunet!digi!kgallagh DSC Communications Corporation Addr: MS 152, 1000 Coit Rd, Plano, TX 75075 ----------------------------------------------------------------------------