Re: software suits, was Re: Long names are doom ?

["Marin David Condic" <marin.condic.auntie.spam@pacemicro.com>]

Maybe you missed my point. First off, any lawyer can tell you that just
because it was written down in the install script and you hit the "I Accept"
button, doesn't mean a contract has taken place. (Ignorance not necessarily
being the defense here. Lots of other things come into play.) My point was
that if the only means I have of inspecting the goods is to hit the "I
Accept" button, then a court may decide that a contract did not take place.
I *had* to go through this motion in order to inspect the goods and
therefore a case might be made that the contract was unilaterally imposed.
(Trust me on this - I *don't* advocate the courts protecting me from my own
stupidity - just equalizing a mismatch of power in the transaction.)

Second off, I'd still contend that there is a mismatch of power in the
transaction. the software vendor is (or can be) knowledgable of all the
inner flaws of the product they are selling. They can hide behind their
install script and in effect tell you that you have to buy a pig in a polk.
You have no way of knowing what is in the software product until you hit the
"I Accept" key - and that is a disparity of power and information. Courts
have quite often sided with a plaintiff who had no reasonable opportunity to
inspect the goods and had to rely on the seller's assurances that the goods
were what they claimed them to be in their advertising.

That's why I think those install screens are a weak defense. Of course, the
only way to find out for sure is to take it to court and get a judge to rule
on it. That's the way it works in a common law legal system.

MDC
--
Marin David Condic
Senior Software Engineer
Pace Micro Technology Americas    www.pacemicro.com
Enabling the digital revolution
e-Mail:    marin.condic@pacemicro.com
Web:      http://www.mcondic.com/



"Dale King" <KingD@TCE.com> wrote in message news:3b267365$1@news.tce.com...
> "Marin David Condic" <marin.condic.auntie.spam@pacemicro.com> wrote in
> message news:9g33oo$rp$1@nh.pace.co.uk...
> <completely unrelated example snipped>
> >
> > I think that a good trial lawyer would probably be able to find case law
> and
> > arguments that would nullify the usual disclaimers made for software in
> > extreme cases of software failure. Not being a lawyer nor do I play one
in
> > newsgroups, I could not say for sure, but it seems that a lot of those
> > standard disclaimers written in small type and easily blipped over when
> > installing software seem to be a bit unilaterally imposed and with a bit
> of
> > a disparity of power. How am I supposed to make an informed judgement
> about
> > accepting your software "as is" until I install it and test-drive it? I
> > can't adequately inspect the goods without installing it on my machine.
> And
> > by then I've walked past the screen saying 'I Accept' without being able
> to
> > find out that your software turns disk drives into a smouldering heap of
> > slag.
>
> I certainly do not put anything past a trial lawyer to attempt. But the
odds
> are stacked against them. And I have never seen a license agreement that
you
> could skip by without actually making a conscious effort to say that you
> accept the agreement. I even had one recently that would not let me just
hit
> accept if I didn't at least scroll down a little through the text of the
> agreement. It is very difficult to claim ignorance when you have to hit a
> button that  says "I accept the terms of this agreement". If you don't
> bother to read what you are agreeing to, that pretty much qualifies as
your
> problem.
>
> And they are not unilaterally imposed. You have all the power. Most
> agreements say if you do not agree to these terms, then return the
software.
> They can't make you agree, install, and use it.
>
> > I think the only reason more software companies have not been handed
their
> > asses in court is that for the most part end-users have just come to
> accept
> > as gospel that most software is buggy crap and there isn't anything they
> can
> > do about it.
>
> And the problem is that they have accepted an agreement with the software
> company that says this software may be a buggy piece of crap, so it is
> rather difficult to sue a company for living up to its agreement.
>
> --
>  Dale King
>
>