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Worst Terms of Service Ever
The legal birdseed here (appropriately and manically illustrated in the manner of The Secret Guide to Computers) makes the copy on Dr. Bronner's Soap look sane; the user agreement ("Click on any link or image to indicate "I ACCEPT" the USER Agreement.") begins with a little blurb about why it's necessary, and asks you not to be put off by the legalese. That might seem disingenuous at first, but buried in the text is this note, too: "[Yes, we know that you think that all this legalese is completely ridiculous, and we think so too, but we also believe that current law unfortunately requires that it be done this way; So if you know of a better, simpler 'legally correct' way, do tell us how!]"
(Besides this amusing legal stuff, the site is actually very interesting, at least if you enjoy U.S. history and trains.)
Netcraft says Apache on Linux, I'm betting (according to SCO) they're not up to snuff on licensing. Maybe SCO should contact them and ask for a piece of the action.
A damn good joke too, I might add.
I'm pretty sure your post was in semi-jest, and IANAL, but here's my $0.02.
Terms of service bind you in a contract with a company or individual. These terms, while defined by the company, need to be within reasonable limits and with a justification. For instnace, if you bail out of a cell phone contract early, it is reasonable that they charge you $200 for what you would have brought in over the next 2 years of your contract.
Also, and i may have seen this from watching too much Judge Judy, but because something is in a contract does not mean it is binding. For the obvious example, if someone had a contract that required an illegal activity (like human slavery or prostitution) that contractual agreement is non-binding. However, i am unclear if the entire contract becomes null and void; I believe soley that clause or agreement is voided.
As someone who hardly issues T.O.S. for client's websites, does anyone have a suggestion on a good medium point for T.O.S's?
As pointed out by one of the posters on the LawMeme site this is actually a spoof and a good one at that.
Look at the bottom of the page: No stereographs were harmed in the making of this website.
and another one: The author of this publication is CPRR.org, a pseudonym. The author, an individual scholar who is not a Counsellor at Law, asserts moral rights.
Their reply: http://cprr.org/Museum/Rants.html#Yale
Well, they refer to it as a "functional parody", so I'm thinking that at least to some extent this isn't supposed to be taken seriously.
They are serious, although it's written kinda tongue in cheek. They just didn't have a real lawyer available to write it for them, so they tried to make it all inclusive.
It is a contract of adhesion, as it is a take-it-or-leave-it offer rather than something both sides may negotiate. Contracts of adhesion are required to be reasonable, and thus that contract would not be valid.
Actually, that seems that the poster is liable, not Slashdot.
We're on Popageorgio dime, now.
[DISCLAIMER: This post is a work of satire and should not be misconstrued as a holy text upon which to base a religion.]
Actually, I think we get to bill this all out to Yale's Lawmeme sight. Then again, I'm sort of betting that Yale's law students could get them out of this. -Brian
Comment found in the source...
...before the nagging anti-right-click javascript code. May apply to the pop-up I am blocking too - shame that...
<!-- STOP THIEF! WARNING: IT IS A FEDERAL CRIME UNDER THE DIGITAL MILLENIUM COPYRIGHT ACT -->
<!-- TO CIRCUMVENT THESE COPY PROTECTION MECHANISMS TO DOWNLOAD COPYRIGHTED IMAGES. -->
<!-- LEGAL NOTICE: YOU ARE IN VIOLATION OF THE USER AGREEMENT. -->
Yes, but whats that got to do with the price of tea in D'ni?
Don't you mean Kibo?
IMHO and IANAL (but I hope to be one in 2 years), so don't take this as legal advice:
It won't hold up in court. Liquidated damages are supposed to be an approximation of actual damages incurred. If they're not, then they amount to an illegal penalty, which courts do not enforce. Here, neither the $5M nor $250/phone call is an approximation of their actual cost. As a result, those "liquidated damages" would be tossed out.
Along that lines, if you cancel your cell phone contract 2 days before it expires, the cell phone company is going to have difficulty proving that their damages for those 2 days amount anywhere close to $200.
If you're renting an apartment and want to get out of the lease early, go and find somebody else to finish off the lease for you. You ought to be able to get out of it because the new person means that they haven't suffered any loss.
In theory, theory and practice are the same. In practice, they're different. The problem that you may end up with in playing these games with either your cell phone provider or landlord is that you may need to go to court to resolve it, and that's probably more expensive than what you're saving.
Interesting tidbit when you view source...
<!-- STOP THIEF! WARNING: IT IS A FEDERAL CRIME UNDER THE DIGITAL MILLENIUM COPYRIGHT ACT -->
<!-- TO CIRCUMVENT THIS COPY PROTECTION MECHANISM TO DOWNLOAD COPYRIGHTED IMAGES. -->
<script type="text/javascript" src="http://CPRR.org/no-download.js"></script&g t;
My car gets 40 rods to the hogshead, and that's the way I likes it!
Right. It's called "severability". By default the contract is _not_ severable, but severability clauses are a matter of course.
Hah, five million dollars liquidated damages ... completely unenforceable. No court would even think twice about it. Large liquidated damages provisions in contracts are not enforcable.
Section 356(1) of the Restatement (Second) of Contracts (which is pretty much universal contract law across America) states:
(1) Damages for breach by either party may be liquidated in the agreement but only at an amount that is reasonable in the light of the anticipated or actual loss caused by the breach and the difficulties of proof of loss. A term fixing unreasonably large liquidated damages is unenforceable on grounds of public policy as a penalty.
From what I know, this basic principle of contract law is the same pretty much everywhere. Liquidated damage provisions are most often used to offset the cost of delay in a party's performance of contractual duties. But of course, a reasonable fixed cost must be set. Can't be a penalty, merely a means of recouping a loss.
Stupid people make stupid things profitable.
You don't even have to visit the website to agree:
"BY SENDING US AN E-MAIL OR OTHER COMMUNICATION, WHETHER DIRETLY OR INDIRECTLY, YOU ARE ASSERTING THAT YOU HAVE READ AND AGREE TO THIS USER AGREEMENT, WITHOUT LIMITATION, THAT YOU UNDERSTAND THIS USER AGREEMENT, AND THAT YOU ARE LEGALLY AUTHORIZED TO ASSENT TO BE BOUND TO THE TERMS AND CONDITIONS AS PRESENTED IN THIS USER AGREEMENT. "
But that's quite a long way down the 20,000 word document, so you may not have noticed...
The parent poster is either trying to be clever, or not paying attention to the thread. We're talking about making copies of works that are in the public domain already. In Bridgeman v. Corel, the key question was whether or not digital duplicates of classic paintings were copyrightable. The court held that they were not, because
Note that the ruling applies only to the paintings on which the original copyright has lapsed. Paintings not significantly older than Mickey Mouse have not yet entered the public domain, so duplication of those paintings would still infringe copyright. Duplication of other recent works (like the ISOs you speak of) would run afoul of the same problem. Unless you have audio tracks from the nineteenth century you would like to copy...~Idarubicin
So if Joe blogs makes a copy (reproduction) of a Program/ISO/Audio track, then that copy is no longer a copyrightable work ?
No; you don't get a new copyright on it for copying it. The old copyright is still in effect.