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Shrinkwrapped Books
NortWind writes "I just saw this in the InfoWorld paper, in the "The Gripe Line" by Ed Foster. It describes how a "...book arrived wrapped in plastic with a shrinkwrap license on the front". Just when you thought it couldn't get any worse..." I wrote an essay about this a year or two ago.
If the license agreement was to be taken seriously, he either had to go to the trouble of trying to ship the book back or he had to become an Omnicare customer somehow.
I'd just trash it and forget it. It's illegal to send unsolicited items and then try to collect for it - just because they slap a boilerplate on something that arrives unsolicited in your mail you can still just treat it like any bulk business mail, crapcan it. All they are claiming ownership rights to is the contents. If you want to get in a moral quandrary over it, or become play the OmniCare game that's fine too.
try { do() || do_not(); } catch (JediException err) { yoda(err); }
Anything that is mailed unsolicited to a person belongs to that person. Period. The postal code is extremely clear on this point.
There used to be a lot of scams where companies would send products to people along with a bill, figuring that enough people would pay to make it worth it. For one thing, the company did not provide return postage, so any return would be at the customer's expense.
Each and every one of those doctors now owns the book that was sent to them. I suggest they throw away the shrinkwrap, and use them for doorstops.
Key phrase - "received this tome in the (US) mail."
He was mailed it without asking for it. Postal regulations are very clear - it's his to do as he pleases, license blather notwithstanding. Same as being mailed a CueCat. Postal law takes precedence, always.
A call to his local postmaster, who will route him to a postal inspector, will end this charade in minutes. Absolutely nobody trumps a postal inspector, not even an IRS agent. Postal inspectors almost never lose, even the cases that make it into court, they win 97%+.
Books for classes have been doing this for years. Some have shrinkwrap licenses, though most have software that generally gets unused in the class, but is just there to make resale of the book harder. It's starting a mini-cottage industry of small booksellers that don't care about the license and will buy and sell the used book no matter what, as opposed to the large campus store that needs to comply with the bookseller's corporate "licensing" terms.
Shrinkwrapped licenses for books are clearly a violation of the doctrine of first sale (you do not own the rights to distribute the content of a book, but you completely own your copy of the the physical book, and may distribute that any way you please).
Each new insult is also one more bit of evidence that fair use is threatened. If this goes on -- and if we keep writing Congress, etc., every time it happens -- at some point, maybe things will be so visibly out of hand that there'll be serious public pressure to swing the pendulum back.
It won't happen by itself, but I cling to a shred of hope, no matter how thin. (Giving into despair doesn't help; think of hope as a modified Pascal's Wager.)
Stupid job ads, weird spam, occasional insight at
The book came unsolicited in the mail. The only rights the person who sent it may have are what is afforded by standard copyright. The physical object, the book, belongs to the recipient to use in a fair manner consistant with the local copyright laws no matter what the meaningless piece of paper says. They cannot give themselves the right to take the book away at a later date. The stuff about not being able to share the information with anybody is crap too.
Basically this is an article about a publisher being stupid and wasting paper; probably not nearly as much paper as the company that publishes "Internet Explorer for Dummies," so if you want to harrass somebody, you'd be better off harassing them.
It is Title 39, United States Code, Section 3009:
c h. htm
http://www.usps.com/websites/depart/inspect/mer
Another one bites the ./ dust:
wget is a wonderful thing:
The Gripe Line
Ed Foster
Open with caution
I SUPPOSE IT was inevitable. With sneakwrap terms showing up in everything from charity Web sites to pornographic spam, it was just a matter of time. Books with shrinkwrap license agreements have arrived.
The first report of this phenomena to The Gripe Line came a few months ago when a reader who is a physician received an unsolicited tome in the mail entitled Geriatric Pharmaceutical Care Guidelines, 2002 Edition, from Omnicare. "This book arrived wrapped in plastic with a shrinkwrap license on the front," the doctor wrote. "It plainly says that by breaking the seal you agree to the terms of the license and if you don't agree you should return the book unopened. Is this what software licensing has led us to? This license says the book remains the property of Omnicare. Will they come up with a way to remotely disable the book if someone else reads it?"
The doctor obligingly faxed me a copy of the license, and I saw that it was indeed a sneakwrap agreement worthy of Microsoft or VeriSign. "In the event that you do not agree with any terms of this agreement you should promptly return the material unopened to your local Omnicare pharmacy," it read in bold letters near the top.
The license was nontransferable and would "terminate immediately if the Licensee or his or her employer ceased to be an Omnicare customer." And although the Omnicare "Guidelines are intended only to provide guidance as to which pharmaceutical products Omnicare believes to be most effective" the "licensee" was nonetheless prohibited from disclosing any of the information in the book to third parties.
It struck me that this license put the doctor in an awkward position. As far as he knew, neither he nor any of the other doctors in his office (most of whom had received their own copies the book) were Omnicare customers, and he did not know where his "local Omnicare pharmacy" might be. Even if he wanted to keep the book, as a non-Omnicare customer the license prohibited him from doing so. And since Omnicare claimed to retain ownership of his copy, he couldn't destroy it either. If the license agreement was to be taken seriously, he either had to go to the trouble of trying to ship the book back or he had to become an Omnicare customer somehow.
The doctor wondered if Omnicare was trying to make him feel obligated to them. "Sometimes my less-than-favorite charities send me greeting cards or stickers or a writing instrument in the mail," the doctor noted. "They are hoping to provoke enough sense of obligation in me to extract a contribution, but legally I am not required to acknowledge, or pay for, or return, or refrain from using what they send. So what is my obligation when sent an unsolicited book? Am I legally required not to use it or to return it if I don't agree with the sender's intended use?"
So just what was Omnicare's purpose in putting a classic shrinkwrap agreement (it was even printed in small, poorly-contrasted type) on a book that was clearly intended to promote use of the company's pharmaceutical products? I hoped Omnicare officials might have a simple explanation, but if they did, they decided not to share it with me. After two months of going back and forth with their public relations staff, I did not even get an answer on the basic question of what a noncustomer was supposed to do with the book.
While I was waiting in vain for answers from Omnicare, though, I heard from another reader with a shrinkwrapped book. Interestingly enough, he was also a doctor, but his book was a membership directory published by a medical society. I'm not going to identify the organization, partly because my deadline didn't allow them much time to respond to my questions and partly because their license was much less restrictive than Omnicare's. But their spokesperson was also unable to offer any explanations for why they felt it necessary to attach a license agreement to that book.
As I thought about it, however, it occurred to me that it doesn't really matter why we're suddenly seeing these books in the medical field with shrinkwrap licenses. Perhaps the publishers have good reasons for using them, perhaps they don't. But if someone wants to slap some legalese of dubious merit on the front of a book, why shouldn't they? Software publishers have been doing it for years, after all, so it only seems fair that publishers of other forms of intellectual property should have the same right to try to put restrictions on how customers use their products.
And, if there's no real justification for prohibiting book publishers from doing what software publishers do, how can we draw the line even at products containing intellectual property? Perhaps lamps will soon come with fine print legalese on the inside of the lampshade banning them from being resold at yard sales without the manufacturer's permission. And tearing that tag off your mattress really will bring the police pounding on your door.
Last week we talked about how we've already lost some of the basic rights we used to enjoy under traditional interpretations of copyright law. Loaning a book to a friend is not yet one of them, but who knows how much longer we'll be able to say that. Today we might still reasonably expect that any sane judge would just laugh if someone tried to get him or her to enforce a license such as Omnicare's limited-use license agreement. We must remember though that there are very powerful forces in this country working to give all sneakwrap agreements the full force of a binding contract. Next week we'll pay them another visit.
Have you received any sneakwrap agreements on books or other products? Write to Ed Foster, InfoWorld's reader advocate. You can reach him at gripe@infoworld.com.
"Live Free or Die." Don't like it? Then keep out of the USA
It is perfectly legal for somebody to send you something with the suggestion that you return money in exchange. In fact, that's protected by the First Amendment, which is why it's so hard to make some companies to take you off their mailing list.
But if they try to collect money from you in exchange for the goods (or demand you send it back at your expense) by claiming that a contract exists, that's unenforceable. There were some abusive practices in the 60s, and now this practice is explicitly named unenforceable.
Of course, back then I think the problem was charities counting on guilt as much as anything else. Now it's outright scam artists sending unsolicited toner, fax supplies, etc., with overpriced POs. A tightly run company will have a single vendor and can tell them to shove off, but many companies will automatically pay low-value POs for office supplies.
For every complex problem there is an answer that is clear, simple, and wrong. -- H L Mencken
I skimmed the article, wasn't the shrinkwrap agreement basically a "you can't copy this information and make a profit off of it" agreement? Its just another way to legally safeguard their IP. More power to em.
When I get a fiction book that has a license, then I'll worry.
http://www.usps.com/websites/depart/inspect/merch. htm
If I recall correctly, isn't there a law that says no one can send you anything without your approval and that if they did, you cannot be bound by any terms to purchase regardless of what any print on the item might say?
In short, if you recieve something in the mail, you have full rights to the article.
This was put into effect when many magazine publishers would start sending magazines to a customer and later charge him for a subscription rate. I see no fundamental difference in this case.
http://www.eff.org
http://aclu.org/
Just kicking an issue around a message board never solved anything. If you feel strongly about it, dollars really do speak louder than words -- you really don't need to donate a lot of money.
Every year during my review, I just pray the words "slashdot.org" aren't mentioned.
It's not absolute - you don't get to keep misdelivered mail. (E.g., that guy who got a prototype X-box a while back.) That includes things like the mail going into the wrong box, being sent to the wrong "J Smith", etc.
But in these cases the sender has to cover the cost of pickup and re-delivery.
For every complex problem there is an answer that is clear, simple, and wrong. -- H L Mencken
(not these are my thoughts only not those of ...)
It's likely that the book had a CD with pharmacy related software (as that is one of the companies primary functions, provide drugs and the systems to control the distribution of said drugs).
However, if it is just for the book and you didn't request/pay for it, simply trash the book. Who cares?
> First, can I attach a shrinkwap license to
> anything? It seems well accepted for software.
Well, "well accepted" at best means that people ignore/put up with them. The whole concept of a shrinkwrap license has never been tested in court.
Software licesnese and shrinkwrap licenses like the one this article is talking about are bullshit in general. Think about it - you paid your money (or got it for free) with no strings attached whatsoever. The purchased item is now yours. The previous owners can't come along and ask you to agree to a bunch of stupid terms after the item became your personal private property.
If someone sold you an apple, and then followed you home and demanded that you either aggree to some ridiculous contract or give your apple back, you'd think they were a moron. Why don't people think the same for intellectual property? The whole point of intellectual property is to give IP the same characteristics as physical property. Ok, fine, now don't get upset when people start treating it accordingly.
The book in question was reportedly received unsolicited in the U.S. mail. Shrink wrap or not, U.S. postal regulations make it clear that such an item can be considered a gift, and need not be returned. It certainy does not stay the property of the publisher. This would be a great test case, they have set themselves up to fail.
I'm an American. I love this country and the freedoms that we used to have.
IANAL, but one aspect is quite simple. No you cannot attach a shrink-wrapped license to a book that is purchased in the normal way. You bought it, you own it, you can sell it, loan it, read it, or use it for toilet paper. That's called "first sale doctrine", and IIRC the court cases establishing it were in the 1920's. (Note that a shrink-wrap license saying simply that you cannot duplicate the book would be legal, but redundant. Copyright law already says that.)
No one's tried that with apples, but I expect the same rule would apply. The one place shrink-wrap licenses currently might hold up in court is on software. The software vendor's argument is that the user owns the CD and the copy of the software on it, but to use the software you have to make copies (to your hard drive, then from HD to RAM), and this violates the copyright act unless it is done under the license from the vendor. Counterarguments (1) When I read a book, a copy of the text is created in my neurons. Furthermore, I once recited Tolkien's short story "Farmer Giles of Ham" from memory to my little sister, creating a secondary copy in her head. Congress did not intend to outlaw that, nor require that I get a license from the publisher to read the book or tell the story. I don't think they intended to outlaw copies of software created in the course of normal use, either. (2) Many of these licenses now contain unconscionable provisions.
The NDA is something else again. You signed a contract before you could get the book. It may specify that you don't own the book, you just get to look at it for a while. And quite obviously, if NDA's are to have any force at all, they must be able to prevent you from reselling the documents. But as I said, this is a contract agreed to before the documents are sent to you, not a surprise after purchase.
The medical directory _might_ come under the a similar exception as the NDA - assuming it was a sort of membership list for an organization of doctors, you have to join the organization to get it, and one of the bylaws you agreed to when you got your membership was that you don't let outsiders get the membership list...
A shrink wrap license on unsolicited merchandise goes beyond these precedents in some ways. For sure they cannot require you to spend time or money trying to return the item. You can certainly toss it in the dumpster unopened. You can use those AOL CD's as frisbies, coasters, and skeet targets without bothering to read the EULA. However, you connect to AOL and you are using their service, so you'd better check out what you are contracting to do in return.
Beyond that, would first sale apply when there wasn't any sale? I'd figure that, since postal regulations say unsolicited merchandise is your property, you've got the same freedom with that book that you do with a book yuu just bought from Barnes and Noble. The doctor should even be able to auction it on e-bay - but if they sue, his legal fees to establish that right are going to make his malpractice insurance look cheap!
Guys, this is nothing new I just bought my books for college and 3 out of 4 came shrinkwraped with notices on them about bad things happening if I'm not a good kid. The computer class was the only one with a EULA on it and the class sucs so i'm gonna try adg get by with out opening it.
Last semester only my english book was like this but all the essays contained with in it are in the public domain.
-Ben
---PRESS ANY KEY TO CONTINUE---
"Now, where's the damn 'any' key?"