From: Howard C. Berkowitz (hcb@gettcomm.com)
Date: Fri Jan 03 2003 - 23:25:59 GMT-3
At 5:38 PM -0800 1/3/03, Joseph Ezerski wrote:
>It seems any vendor of any product or service can write any agreement that
>they want, but does that make it legally binding? I could say "By reading
>this email you agree to swallow seven live toads while standing naked in
>your front yard. Failure to do so could result in severe penalties and even
>death".
Interesting question, since complying also could result in severe
penalties and even death. Depends, I suppose, if you can avoid
bufotenin-secreting toads.
>Would that even stand up in court?
Let's put it this way--there's a market reality that it's rarely
practical for an individual to challenge this in court.
The law is even more murky on trademarks, as there's a legal concept
of "actively defending" your trademark or risk losing it.
>
>I am not sure exactly what the law says on this matter as a whole, but I do
>know that these words are included in copyright law:
I haven't seen the IPexpert sales agreement. One very key point would
be whether it sells the material or licenses it. Most software
shrink-wrap agreements specify that the seller retains title, and is
simply licensing use. Try lending out your copy of the latest IOS or
Olive and see what the corporate lawyers do.
>
>"to promote the progress of science and useful arts," so that "individuals
>will create and disseminate knowledge and ideas."
>
>Also, the fair use provision clearly states that non-profit educational uses
>are permitted. I should also include that the "lending" of a copywritten
>work is not mentioned at all. I wonder how libraries, public or private,
>deal with the "lending" of millions of copywritten works on a daily basis.
>
>The purpose of this email is not a judgement of who is right or wrong, but
>perhaps the spirit of it sides with the general rights of the consumer.
>
>-Joe
You make a valid point. Classically, a deal is fair when neither
side is completely happy with the outcome. That's a balancing act
between what the consumer will accept and what the vendor believes
will give adequate return on their investment.
I honestly don't know what the agreements and terms of sales are on
the major prep materials. It might be interesting to compare them.
.
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