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Re: Beyond Shrinkwrap
As Marlene said, one cannot read the terms until after one has accessed the site. I don't have a copy of the UCC in front of me, but I believe it contains language which requires both parties be able to read the terms before acceptance. The terms themselves must also be reasonable, and I believe this extends to access to the terms. It is reasonable that a user could use this site without even knowing of the existence of the license. Buried as they are under other pages, this doesn't even qualify as a shrink-wrap license, which is often on the outside of a box and can be read before purchase. I can't imagine this license would hold up in court as it seems to be in direct violation of the UCC. Of course, stranger things have happened... Greg S. MacGowan Assistant Director Center for Electronic Text in the Law (CETL) University of Cincinnati College of Law Cincinnati, OH 45221-0142 phone: (513) 556-2334 fax: (513) 556-6265 Email: Greg.MacGowan@Law.UC.edu _______________________________ Jim O'Donnell wrote: >The next generation of contract has been invented, naturally by Microsoft. >If you go to the WWW site www.newyork.sidewalk.com (which offers an array >of information on entertainment, tourism, restaurants, etc. in NYC), you >will find a discreet list of links (less noticeable than the gaudier >content links) like "About Sidewalk", "Advertiser index," and finally >"Terms and conditions". That begins a very long page of claimers and >disclaimers, but the opening is remarkable: > > MICROSOFT(c) SIDEWALK(tm) WEB SITE TERMS, > CONDITIONS, AND NOTICES > > AGREEMENT BETWEEN USER AND MICROSOFT > > This Web site is offered to the user conditioned on the user's > acceptance without modification of the terms, conditions and > notices contained herein. By accessing and using this Web site, > the user is deemed to have agreed to all such terms, conditions > and notices. > >This contract is not on the outside of the package and it is both easy and >natural to make use of the site without ever looking at this page. (It >was called to my attention since, among other things, it asserts >Microsoft's right to collect whatever personal information it can about >you and to "share" it with others -- spam-marketers and the like -- >without your permission.) > >Since the copyright notice further down the page makes a blanket ban on >any modification, copying, distributing, transmitting, etc., etc., of any >information from that site, I feel obliged to say that I believe my >quotation above is covered as an example of fair use "for purposes such as >criticism, comment, news reporting, teaching (including multiple copies >for classroom use), scholarship, or research" (sec. 107, Copyright Act of >1976). > >Jim O'Donnell >Classics, U. of Penn >jod@ccat.sas.upenn.edu
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