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From: abm@ptsfa.UUCP (Al Margolis)
Newsgroups: net.micro.pc,net.legal
Subject: Re: Boiler plate warranties - software isn't that reliable
Message-ID: <841@ptsfa.UUCP>
Date: Fri, 30-Aug-85 18:09:16 EDT
Article-I.D.: ptsfa.841
Posted: Fri Aug 30 18:09:16 1985
Date-Received: Sun, 1-Sep-85 05:41:42 EDT
References: <3199@pur-ee.UUCP> <332@looking.UUCP> <1082@mtgzz.UUCP>
Organization: Pacific Bell, San Francisco
Lines: 49
Xref: watmath net.micro.pc:5180 net.legal:2234
Summary: Meeting Of The Minds

> I thought that the "standard boilerplate" warranties weren't binding
> on a court, and that you COULD INDEED sue for damages.  But you would
> have to convince the court (jury? judge?) that a reasonable person
> would naturally use the product in the way you did when you were
> damaged.  

This may be more semi-ignorant opinion but ...

I understand that the fundamental problem with the shrink-wrap
licence agreements is that it is questionable to assume that breaking
the seal constitutes the "meeting of the minds" that is required for
a contract to be binding (i.e.: if there is no mutual understanding
and agreement, there is no legally binding contract).  After that,
there are all sorts of difficult issues concerning the degree of
liability and validity of disclaimers.  If there is no contract, the
transaction generally falls under the Uniform Commercial Code (UCC)
which is pretty even handed.  If you aren't sure about the product
(to the degree that a law suit is possible), you might think about
*not* sending in your registration card, especially the ones that 
you sign, since that might be construed to indicate agreement.

If you by a program for personal use, many states have consumer
protection laws that give the purchase reasonable rights that
cannot be abbrogated (sp?) [of course, you don't get the right
to violate copyright laws].

I have a feeling this whole discussion is pretty silly, because the
cost of the products and the difficulty of proving damages and
liability makes it unlikely that any of us will end up in court,
no matter what we do as consumers or developers (except go out of
business if you botch your products too badly).  The one semi-
reasonable exception might be battles between mega-corporations,
but I doubt even they could justify the court costs.

BTW, if you wondering why licenses are so uniformly rotten, talk
to you friendly compiler writer.  I recently had the opportunity
to see the sub-license agreement a developer has to sign to
distribute run time libraries from a well known company's line
of compilers.  They require the developer to include all the
disclaimer / non-warranty shrink-wrap verbiage -- of course you
always have the option of writing your own run time libraries or
doing the whole thing in assember ...

Too much said already ... I'm not a lawyer, so this isn't legal
(or good?) advice ... my employer doesn't usually listen to me,
let alone have me represent him/it.

Al Margolis
Pacific Bell    {dual, ihnp4} !ptsfa!abm