On Sep 20, 1994 at 20:27, Rod Speed of 3:711/934.2 wrote:

 DB>> Translation - there is no precedent;
 RS>
 RS> Translation, poor old Dave resorting to sillyness when he doesnt
 RS> like what he sees.

In fact, poor old Dave just doesn't like being told, "It is so, but I
couldn't be bothered proving it to you because then that would mean it
would *really* have to be so..";  Rod, if you want to present an
opposing view, then sure go right ahead - nobody can (nor should they) stop
you.  Just don't pretend that what you're saying is reality unless you can
back it up (or at least give some vague recollection of where you saw/heard
it, or whatever);  if you can't remember (which is fair enough), then say,
"It probably isn't because...".  No, I'm *not* trying to tell you
what you can and cannot do (despite appearances to the contrary).

 RS> he does appear to know what he is talking about...

Cool, I have no problem with that;  although why you bothered complaining
about my request for more information when you finally decided to come out
and tell me anyway ("..recent MS consent decree stuff..",
&c.), I'll never know.

 RS> Again, I didnt save any of that tho with 20:20 hindsight, that may also
 RS> be handy in the future too. Thats life, like I say, I often regret not
 RS> saving stuff.

See?  It wasn't so difficult to just come out and say it after all.  Now
Rod, you've raised an interesting point here - just let me remind you that
you're talking about the American jurisdiction, when the discussion was
originally centred (by situation) on the Australian jurisdiction.  You have
stated emphatically that shrinkwrap licences *have* been tested in a court
of law - but only in the U.S.;  to date, you haven't addressed the
Australian scene.  While it is certainly possible that the matter *has*
been addressed locally, relying on foreign cases isn't the way to prove
this.

 RS> That then involves just what is 'accepts' in the situation we are talking
 RS> about. Still not as cut and dried as you are attempting to suggest.

I was not attempting to suggest that it was "cut and dried";  in
fact, that was your approach, "It doesn't constitute a contract - and
that's that."  I have been arguing that the matter is more complicated
than that, and involves the location of the licence, &c.

 RS> You could have said the same thing about the ticket, the conditions are
 RS> on the back, they claimed that you basically agree to those conditions.

You get the ticket at the conclusion of the transaction, that's why the
conditions on the back are irrelevant.  If the conditions were viewable
prior to the sale, then that would be different.

 DB>>         (I)  If he signed the form he would be bound by the conditions,
 DB>>              even if he did not know the language in which they were
 DB>>              printed.
    ...
 RS> Which just plain isnt relevant coz there is no signing involved in what
 RS> we were talking about.

I know - I just didn't want to leave gaps between the start and the clause
which I felt to be most appropriate, and then have you complain that I was
leaving out anything "important".

 RS> And then there is the question of whether there is any equivalent of 'the
 RS> form' in the case we were discussing.

I believe the document (the form) is that on which the licence conditions
are written.

 DB>> [And the list goes on - this is all quoted from HB Sales'
"Standard form
 DB>> contracts" (1953) 16 MLR 318.]
 RS>
 RS> Doesnt prove a damned thing.

No meant to - it's "food for thought" as it seems relevant to the
discussion of shrinkwrap licences, which certainly appears to be a variant
of standard form contracts.

 RS> All that stuff applys just as much to the tickets which purported to
 RS> waive your rights.

No - as above;  the ticket thing is beaten at a fundamental level.  If you
can see the licence conditions prior to expressing your agreement (as in
the case of disks in envelope, *especially* if the conditions are on the
outside of the package), then the matter changes.

 DB>> Prima facie, it would seem that in many circumstances a vendor's
 DB>> "shrinkwrap licence" *would* be valid,
 RS>
 RS> Nope, as the ticket example shows so clearly, it aint that simple.

The ticket is post agreement - the shrinkwrap can actually be pre
agreement;  and no, the situation "aint [sic] that simple" in any
case.

 RS> And IMO the dearth of legal actions attempting to use those shrinkwrap
 RS> licenses to bludgeon customers, shows very very clearly that what they
 RS> think is the chance of success.

It hasn't occurred to you that vendors aren't flooding the courts with
cases because they haven't had a need to?  If you were breaching their
licence conditions with some commercial venture which they felt was losing
them money, chances are they *would* file a suit (again, which way the
court would decide depends on the individual case).

 RS> For example if MS tried to impose a condition that you could not use
 RS> their compilers to produce an EXE which was OS2 native...

...would beg the question, why are MS' compilers{*} producing native OS/2
applications (and MS are publishing that fact) if they didn't want people
to use that feature?  {*} Ending with MSC6.

 DB>> References:
    ...
 RS> Looks good Dave

Unlike you Rod, I don't have a problem giving people pointers to where they
can find out more information (for or against my position).


    - dave
    david{at}cagney.nepean.uws.edu.au

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