Slashdot Mirror
Login Code of Conduct Found Not Binding
SurturZ writes "The Industrial Relations Commission of New South Wales, Australia, has ordered a company to reinstate an employee who downloaded porn onto a work laptop, even though it was in contravention of his workplace's code of conduct.
From the article:
the IRC said there was an 'air of automatically' about the annual signing off of employees on NCR's code of conduct, 'a degree of mechanical, unthinking routine in employees making a commitment to abide by the code.'" So, I think most of us can agree, porn at work == bad, but recognition that Click EULAs/other agreements are not binding is probably good. The question is — what replaces them?
articles please
I've violate TOS & EULAs like Michael Jackson at a daycare center.
I'm not too worried about the click through TOS/EULA being used against me in a court of law. For you see, I was installing Warcraft and then the phone rang and I got up to answer it. Meanwhile my cat walked across the keyboard that was unattended and when I came back, the game was ready to play.
What's that? You have multiple screens that prompt me everytime a new patch comes out? Well, I guess I should remind you that my keyboard is laced with catnip & I have many cats which are very active animals.
Either way, I certainly never read or understood the TOS/EULA so how could I violate it?
My work here is dung.
what replaces them
common sense ? reason ?
I am putting myself to the fullest possible use, which is all I can think that any conscious entity can ever hope to do.
That firm could build a masturbation room somewhere in their office. It would be filled with the latest in pornographic magazines, and an ample supply of tissues. When an employee feels that he need to squirt one off, he merely goes into the room, sits down, whacks until ejaculation, and then gets back to work.
I work with one guy who'd probably want a magazine devoted to piss fetishes if we had such a room at my place of work. We always hate helping him debug his code, since we suspect he intentionally pisses on his hands each day at work. Then there's always that slight possibility that he was masturbating in his cubicle. But we try to avoid thinking about that.
The summary says 'air of automatically' which makes no sense. The original text said 'air of automaticity'. This is editing at its worst.
I can see why it would be bad to look at porn, rather than doing work, and in places where you might have customers walking by. But why would watching porn under a break be worse than reading Slashdot?
Porn at work == bad? Will the erosion of job satisfaction never end? What next? No more booze in the server room?
Someone I know stores his pr0n in a big TrueCrypt volume on his work laptop.
Replaces ToS and Eulas? How about at-start contracts with well-worded phrases. A paraphrase at the top would do wonders.
In my state, Indiana, USA, we are an on-hire (well, whatever that phrase that means they can lay off for no reason). However, if anybody demands us to sign a contract later on in our job (as in after hiring, we can quit and get unemployment). A former employer did that very thing, and I quit and filed a petition with the contract I took home.
What replaces them? I dunno, when I started my job I was given the employee handbook, and time to read it. It's not long. It just says "company equipment is provided to you to do your work, and within the discression of your supervisors should only be used for such." Then it has a short paragraph about sexual harassment policy. Not a big long list of verbotens, just an understanding that (a) the primary purpose of company owned equipment is work, not personal use (though some personal use is of course OK), and (b) you must respect your fellow employees and not do stupid stuff that intimidates, harasses, offends, etc.
Creating a 5 page policy that nobody's going to read isn't really required.
It sounds like the problem wasn't just the "oh, another form to sign" nature of the code of conduct, it was the company's behavior. Remember, the IRC said outright that, despite the company claiming a "no tolerance" policy, they didn't act like one existed up until they had to terminate this guy. Likely they, like most companies, didn't actually police the code of conduct, they just let employees do anything at all until the company finally stumbled on something bad, and then and only then did the code of conduct come up. The solution the court's looking for, I suspect, is for the company to actually routinely police the code of conduct, regularly look at employees to see whether they're following it, warn those that're starting to push the borderline and generally act like the company cares about the code of conduct before it gets to a termination situation.
IT Managers watches over employees... so who watches over IT Managers? There's you're answer...
...and should not be from a legal perspective. For example, there is no click-through agreement I must re-affirm each and every time I use my credit card, yet I am still bound by its terms of use agreement. That agreement also states that the agreement may be amended with fair warning, and continuing use of the credit card is a tacit agreement to any future updates to the terms of use.
Just because I don't automatically and unthinkingly click past some arbitrary GUI element does not free me from the responsibilities as a cardholder. The same is true for the terms of use for some computer network or workplace compute resource.
I believe they are getting hung up on the fact that some splash screen with a "dismiss" button is not a binding contract. No, but your terms of employment are. The problem here was the use of the EULA-like login/logoff message as an ersatz contract, instead of your employment agreement in general.
If you don't want workplace computers used for unquestionably non-work related activities, then treat that like a credit-card agreement. It sure works for my bank.
They can yank my card if I use it to acquire illegal items and "fire" me.
I have sit-downs with my direct reports, as they do for their own. We print out our position descriptions, which include pointers to our rules and regs. and we make sure to discuss the fact that they are responsible for knowing the regs. and abiding by them. They sign this in person. Our Compliance Office also has automated systems that require staff to periodically review training sessions that cover important topics and these are signed electronically. You're pretty much screwed if you do what this guy did. We have good lawyers and much better systems in the last 10 years...
There exists no way of exchanging information without making judgments. --Bene Gesserit Axiom
When this employee goes back to his job and is looking at his "amusements" and a co-worker walks by and is offended... What happens then? Presumably he gets fired (again). Is there legal recourse for the offended employee to sue the IRC under the laws of Australia for allowing this conduct to continue?
"It is a miracle that curiosity survives formal education." -Albert Einstein
Slightly OT, but does anyone else from the BBS scene in the 1980s remember the login screens nervous sysops used to use, with disclaimers like "no police are allowed on this board, if you login that means you're not allowed to nark on me k?" Those were funny. I remember reading an interview with a cop who as a hobby collected printouts of those screens encountered during the course of investigations.
Slashdot Burying Stories About Slashdot Media Owned
Signatures are just as worthless as click-through eulas are. It takes an expert to forge them, but it's easy to do once you have some training. We need to start digitally signing our important documents instead of relying on antiquated methods. We might as well pour hot wax on a document and stamp it. I've been thinking of coming up with an algorithm to write my signature differently depending on the date and time I'm signing it. Then again, I had the DMV reject my signature one time because it wasn't in cursive, so I doubt I'd get away with that plan.
I don't have a EULA/Warning or anything. I don't get warnings if I go to inappropriate sites. I signed a contract at the begining of my employment that specified exceptable online activity. If I violate that contract, I'm out a job.
-Rick
"Most people in the U.S. wouldn't know they live in a tyrannical state if it walked up and grabbed their junk." - MyFirs
So, if I RTFA correctly, some government organization decided that NCR followed their policies too well and fired someone for a definite-fire offense... And they're ordering them not to?
This is exactly how inane workplace policies start. Now they need to daily monitor everyone's workstation and compile a file against them to prove they knowingly and repeatedly violated the Code of Conduct before they fire them. Say goodbye to any privacy those employees had AT ALL.
Yes, I realize that I have no privacy at work. But that doesn't mean I have to feel like someone is watching over my shoulder 24/7. If I felt like that at work, I'd quit.
Hopefully there's a higher court or something that they can appeal to and get this overturned. Or another lousy excuse to fire the guy, maybe. Promote him to being a janitor, maybe. (Yes, I said promote, not demote.)
"If you make people think they're thinking, they'll love you; But if you really make them think, they'll hate you." - DM
What about a signed contract being required before you can use any software. Be it on the job to get that fancy new laptop, or something you buy from the store to use at home. You have to sign the contract before you even get to walk out with the box.
If that isnt enforceable, then nothing in the world is and its a free-for-all.
---- Booth was a patriot ----
Having read the article, it sounds to me that he got in trouble for downloading porn on the laptop issued to him by work, not necessarily at work. I know several people who have laptops assigned to them by their employers that they take everywhere - some don't even have their own computer at home. My guess is that he was using the laptop to download porn off the clock (possibly at home), but when word got out, the employer sacked him for misusing their laptop. I'm not going into whether or not he should have been doing this, or whether the employer had a right to fire him, I'm just stating that it doesn't sound to me like he was downloading porn at work.
If the laptop was his and his alone to use, then why is it a bad thing (or a good thing)? Especially if there's spyware and virus protection on the computer and he doesn't catch anything bad. As far as data, there should be a corporate data directory that's autosynched to the company servers regularly, whenever he's connected to the company net or VPN. The laptop should be wiped before being given to the next employee anyway, as a matter of policy, if only because he could have been typing perfectly innocuous personal documents on it with an expectation of privacy or because certain work-related data on the laptop might not be meant for the new "owner" anyway.
-b.
First off, I don't think the same non-binding argument would fly in US courts. Second (and hopefully tongue-in-cheek), is that Austrailian businesses will now need to include such sign-offs at the end of a training course, which will include an assessment, so they can prove that the employees were exposed to the content of the code of conduct.
Were the non-binding nature of an "automatic" or "mechanical" signature process be appplied to US Law, there are a whole slew of disclosures (especially in real estate and finance) that would basically be deemed invalid. What would one do then? How do you protect yourself from idiots who look at a page, comprehend nothing, and sign away. The user/consumer/customer/employee must bear a reasonable level of responsibility for understanding tems, conditions, policies or any other information that they are "required" to receive.
I use irony whenever I can, but my shirts are still wrinkled...
Note that the decision did not discuss click through and logon EULAs and other user agreements. It was limited to yearly employee sign-offs on codes of conduct, a big difference.
What ever happened to the concept of: "I bought it, it's mine to do with as I like."
EULA's exist only to take away a consumer's rights. They shouldn't exist at all. The seller is still protected by the law. If I copy the seller's product then I may be in violation of copyright law and patent law. I can be prosecuted and the seller is protected. In other words, there is no good case for EULAs, other than making it easier to rip off the customer.
What are you on? Oh right guess it would be at slashdot, wouldn't want Zonk or Taco getting jealous now would we?
http://goatse.cz/
As someone who writes and has to figure out ways to get people to understand and see a corporate policy, I can relate to this. My questions is, was a click-through the only means by which the business promoted its policy? We put out important, "need-to-know" policies in more than one way. We have click-throughs, a printed magazine that's shipped to each employee and have even made posters to be hung up in break-rooms. We use other methods as well. Our users are saturated I feel. Still, I have to question this judgement. I'm thinking the judge probably doesn't like, or maybe even use, a computer. A click-through is simply the best, and easiest way, to get the information in front of a user. There is always a fine line between getting the policy to the end user and not bugging them. The bottom line is users will still fail to read, or understand, the policy regardless. Every day, I field questions from people -- even folks who work down the hall -- regarding our policy that's been distributed in every way I mentioned above. People even begin to write new policies that say the exact same things already out there, without any knowledge that they received it in bulk this same year. I'm like, "you know, we already have a policy on that. It's in that big, blue magazine I saw on your credenza stacked with all your cisco books. And, it's on the corporate portal that's the home page of your browser. And, it's in your start menu -- that thing that says, "Computer Policy" that you have to by-pass each time you go to "All Programs."
Bottom line: People don't know because they don't read. That's not the fault of a click-through....
"All great things are simple & expressed in a single word: freedom, justice, honor, duty, mercy, hope." --Churchill
Usually I would't give the time of day to an AC, but the point is salient. There is no need for EULAs in purchased software, or in workplace logins. If the workplace has special rules of conduct (as would be fitting to protect the company from lawsuits, such as sexual harassment, or to "ensure" productivity), then that's something between the employee and the HR department, and can be negotiated face to face in most cases.
I say replace them with nothing (or, at the worst, a "statement").
Is it just my observation, or are there way too many stupid people in the world?
And what if a female employee is watching porn ?
Or a gay coworker ?
Or even another straight guy ?
If someone is showing someone else something disturbing (Not only porn, but anything) then, it is a nuisance...
But, if someone use ressources from his work for personnal purpose (I do have mp3 on my hard drive at work) and such a behaviour doesn't disturb work (for the person and coworkers), where is the problem ?
Is something inherently bad ?
I don't think so...
TFA doesn't tell how the images where found, but if it's the IT dep following a crash, it is an accident, and I doubt that a director would have the same treatment.
Porn at work is "bad", like solitaire, msn messenger and youtube...
The question is -- what replaces them?
Something shorter that can actually be read in less than an hour or some crap.
The real question is whether the company should be held liable for how much software companies (ie - someone else) have diluted the value of license agreements.
yes yes yes yes yes accept accept accept.
Well, a contract has to be (by definition) an agreement of 2 parties. There has to be some way to show that you know what you agreed to before you agreed to it. How about a short quiz on details of the contract before you are convince the provider of services that you actually understand the contract. Before anyone screams that is too difficult, DMV does it. They have a test you have to pass to prove a basic understanding of the laws governing behavior on public roads. Anyone asking you to sign a click-thorough contract (if they were diligent to make sure there a meeting of the minds) could device a multiple-choice test that you'd have to pass that would test your understanding of the contract.
Any guest worker system is indistinguishable from indentured servitude.
For employees, have a piece of paper, a "User code of conduct" if you will that says porn = bad, company resources for personal use/gain = bad, and that everything that happens on a computer assigned to a person, or on a user name/password assigned to a person are the responsibility of that person. Leave your computer logged in and someone else does naughty things? Still your fault, its your user name/password. As for eulas and other auto clicks, they should limit the power and scope of eulas. You shouldn't be able to auto click spyware/adware, but you should be able to auto-click "if you install this and it borks your system, don't sue us!" and "this software is mine, i'm letting you use it for free/price, please don't steal it or my work". Since you *should* agree to this. Its sort of like picking up a book, if i pick up harry potter and decide to fly with a broom (and break bones), i can't sue j.k. rowling. Also, if i get harry potter, change names, and attempt to republish under my own name, she (or her US agent) can take civil actions. However, if i pickup the book and contract smallpox, then that's not something "usually" agreed to when picking up a book.
Is it sad that I am more likely to recognize you and your posts by your sig than your name or UID?
Some firms have 'no email' days. The odd management reasoning being that people have to walk corridors and interrupt/etc instead. Now suppose you send email on 'no email day' ? should you be pink slipped ?, and since you might be pink slipped for logging into your computer (for failing to work) Dammed if you do and dammed if you don't.
If you RTFA, there are a couple of factors that affected the ruling (which was made by a NSW Industrial Relations Commissioner, not any kind of judge). In addition to the "air of automaticity", there was not evidence of a zero tolerance policy against pornography.
The corporation for which I work recently started requiring that all contract employees agree to a "Terms and Conditions of Use Agreement" every time they authenticate to a web application on the corporate intranet. The agreement is currently a 5 page document. If I took the time to read the document every time I agree that I know what it says, I wouldn't have time to do any other work. But, there must be lawyers in the US who are itching to argue that "automaticity" does not invalidate the agreement. I mean, someone convinced management that this was a better way to handle computer usage policies than providing a written document in the employee handbook.
While the article speaks well of the Australian government, I'm not convinced that we will see a widespread effect as a result of this ruling.
Rather obvious I'd say, a decent employer (line management and HR) has regular, at least annual, meetings with it's staff.
These can be called assessments or reviews or whatever, a planning for the coming period/year should be part of them.
And that's where a code of conduct should be discussed (or even signed when minimal trust is a problem).
"The likes of Facebook and WhatsApp are free to those whose privacy is of zero value."
Against EULAs
#1 in some locations agreements that must be accepted 100% as is, have been thrown out.
For EULAs
#2 Unlike this code of conduct there is a real Quid Pro Quo; you can't install the software unless you click, so it's not mindless in the meta sense.
Against Eula
#3 Once you begin the installation process your clicking on all kinds of things and at that point clicking on the EULA agreement is rather mindless.
http://www.hawknest.com/
I'm not sure TOS/EULA was ever really binding. Couldn't someone just claim ignorance.
In contracts of this type, the law isn't concerned about you per se. The test is whether a reasonable person in your circumstance would have seen and understood the terms of the contract.
Read the EFF's Fair Use FAQ
You must be new here.
Free as in mason.
If a US court tosses shrink-wrap licenses on the grounds they are automatic, here's what you'll see replacing them within a few years:
For consumer-grade shrink-wrapped products and many business products:
State and federal laws to legitimize most or all common features of shrink-wrap licenses, particularly limits on copying and arbitration clauses.
For custom software, high-end business software, and the like:
Signed contracts. On paper. With initials next to every major item.
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
The perfect solution would be to ensure that everyone takes along a friendly lawyer, when going their computer store and sit down with the sales clerk and find out what the EULA can and can't let them do. Totally inconvenient but I can imagine a candit camera scene right now :)
Jumpstart the tartan drive.
Why is it bad? Because we say it's bad!
I can't imagine what it would be like to go to work for a company who only tolerates my presence because they were ordered to by the government. "We wish we could fire you, but we're not allowed to." Damn! I wouldn't be able to show my face there.
And it has nothing to do with porn or the stigma associated with porn; it's about not being wanted. Anyone who actually goes back to work after something like that, has no pride or self-respect.
Instead of just using click-thrus companies can require their employees to demonstrate knowledge of their rules & regs.
At a couple of big companies I worked at we had mandatory ethics training each year, followed by a mandatory online ethics test that demonstrated we understood what was discussed as appropriate and non-appropriate. I hated those tests... so much so that my fellow engineers and I used to find ways around taking them - tricking the systems into thinking we passed without actually taking the test. Probably took longer figuring that out each year than actually taking the test!
But, if some ethical issue had come up I couldn't really plead ignorance, since I had supposedly demonstrated knowledge through the test!
Of course if I HAD actually taken the test, it might have stopped me from dating that intern... but probably not.
This would be more interesting if the person worked for Lightspeed University. Then the title of the article could be:
Man Fired for NOT having porn on his computer.
Guns don't kill people; Physics kills people! - John Lithgow as Dick Solomon on Third Rock From The Sun
the IRC said there was an 'air of automatically' about the annual signing off of employees on NCR's code of conduct, 'a degree of mechanical, unthinking routine in employees making a commitment to abide by the code.'"
So, I think most of us can agree, porn at work == bad, but recognition that Click EULAs/other agreements are not binding is probably good. The question is -- what replaces them?
How about the things that contracts are always supposed to have: consideration and negotiability. When one side has a team of lawyers and the other is intended to blindly accept the agreement, it is not the basis for good contract law. In the US, it's not even supposed to be valid. In the States, a contract is supposed to require consideration (something exchanged for the rights either side is giving up) and negotiability (the ability to discuss and request alteration of specific terms of the contract).
Beyond the fact that EULA's, AUP's, and employment agreements are rarely negotiable, the negotiability idea implies that both sides must have similar levels of legal understanding or representation. US businesses have been pushing the boundaries on this for years for many reasons, not the least of which is that it enables the side with more laywers to abuse the other side. For a simple example, look at the record industry.
While the law may not uphold the idea of similar representation, it should be obvious to any rational being that enforcing contracts formed without similar representation is bad for society. It cannot help but lead to the abuses we see today. In fact, there are many places in the States where certain contracts cannot be entered without both parties having legal representation - for example home sales in Connecticut (and I'm sure many states). While I don't much care for the idea of giving more money to lawyers, any system of civil law must eventually devolve to a state where lawyers are required for all human interaction of any consequence. This is the situation the US (and much of the world) finds itself in today. As such, one side having lawyers and the other not leads to an inherently tilted playing field. Given also that the world's predominate economic system (the free market) requires a level playing field, it should be apparent that disproportionate representation is an inherently bad idea.
How was that for rambling?
Stop-Prism.org: Opt Out of Surveillance
Since the court doesn't accept 'automatic' or 'mechanical' acceptance, I say each employee must be required to compose and perform a dance routine indicating his or her acceptance.
Or the courts could simply recognize the right of employers to fire someone who breaks obvious rules.
Saying your "phone ran out of batteries" is like saying your "car ran out of gas tanks".
If Australia had "at will" employment, where continuation of employment was completely voluntary in the sense that either employer or employee can quit the relationship at any time, with no penalty, with or without cause, unless otherwise agreed by contract, then this would be non-issue. The employer would not need to prove cause to fire the employee, and being let go would not have so much artificial stigma, because it would necessarily imply any failing on the part of the employee. In addition, because the liability of being an employer would be reduced, more people would choose to become employers rather than employees, which is the way all private sector jobs are created.
(Emphasis added)
This isn't about EULAs, it's about a company not enforcing it's policies.
The real issue, of course, is there is nothing I can do if I don't agree with the EULA. They generally say to return the software to the place of purchase, but you can't. They won't take it back if it has been opened, EULA or no EULA. So, the choice is agree to whatever legal agreement offered or be out the money you spent despite the fact that you did not get a chance to read the EULA before you purchased the software.
Let's just remember folks: this is Australia we're talking about. This is the same country that lets its employees disappear for months at a time with no penalty. When someone says they'll be there at 10:00, they mean between 10:30 and 12:00. Corporate America is a little more strict, s all you Americans better think twice before getting your sex on.
Not if you're a sperm donor at the fertility clinic.
Tie the employee's pay raise into signing the code of conduct. A Contract is an exchange of benefits---if one side gives a benefit and the other does not, then it's a gift. So, the annual rote signing of the CoC represents a one-sided benefit. That is, the company benefits from the avoidance of porn, but the employee gets nothing. Contrastly, the increase in salary is a benefit given to the employee, because pay raises are not obligatory. By having the CoC signed in order to obtain a pay raise, then the CoC goes into the employee contract.
EULAs are not the same as Codes of Conduct. A EULA is a license between the copyright holder and the prospective user. In order to use the copyrighted work (i.e., enjoy the benefit of the product), then the user must pay for the work and sign the licensing agreement.
Perhaps Congress should shorten the life-cycle of software copyrights to ten years instead of 95?
What those who want activist courts fear is rule by the people.
Is it, like ...
pr0n?
Basicly, when employees are employed at the company, make them sign (and make existing employees sign or be fired) a contract. This contract (there is probobly already provisions for NDAs and such written into the contracts) would set down rules such as "no porn at work". If the employee breaks the contract (e.g. by downloading porn at work), there are well established laws and rules governing what happens and what the employer can do.
Any employee who refuses to sign a contract that prohibits porn at work is not someone you want at your company anyway.
So, i saw the title "Login Code of Conduct Found Not Binding" and thought maybe, just maybe, it'd be an interesting article on coding on this news for nerds site. Instead, i find someone who agreed to something and subsequently broke that agreement, and was praised for it. This is very disappointing.
Stories like this belong on Digg where popularity is high and maturity is low. Can't we have some real stories here, where maturity is high, and popularity is low?
Have you read my journal today?
I used to work at NCR and there was indeed a proxy that blocked anything of real interest. Although this guy claims it was at least in part sent to him by other people. I can't say I had any of my coworkers sending me porn.
Funny though, I don't remember ever agreeing to any "workplace code of conduct" either. If I did, then it certainly was without thought or consideration.
Obviously someone doesn't know how to read, and also doesn't know how to copypasta.
FC Closer
Oh arse
Usually I would't give the time of day to an AC
By the way, I was wondering... could you tell me what time of day it is?
Thanks! I've always wondered!
--
AC
Perhaps they are just continuing in the footsteps of NCR's founder, John Patterson, who was notorious for firing some of the greatest inventors of the time from NCR for misdeeds as simple as riding a horse imperfectly at company events. (They were sometimes re-hired the next day by someone else).
What?
So, I think most of us can agree, porn at work == bad, but recognition that Click EULAs/other agreements are not binding is probably good. The question is -- what replaces them?
Except most workplaces make you sign an agreement that you have read and will abide by the policies set forth in the employee handbook.
So, like, if it gives you valid uses for company property, and you break from that, you should be able to be fired, with no recourse.
I don't see why downloading porn at work should be worse than reading /., or playing Minesweeper.
Then again, I'm not an American, so there is probably some cultural nuances I miss.
In my workplace, the replacement is a 20-40 minute Flash-based multimedia (yay!) presentation, requiring a mouse-click after every 40-sec. "page", and ending in a silly test. That's a lot of non-automatic clicking. The dozen test questions, while mostly common sense, show that the testee has at least clicked through many pages of company policy.
Oh, and it's required annually. Now queue up for your annual ethics training (cog version).
IANAL (obviously)
Is there any ruling on the complexity of the wording for TOS/EULAs? Is comprehension not required? These are hard for me to digest; I can only imagine what a high school drop-out makes of them. If the EULA was in French and the buyer did not know French, would it be binding? Is that not a comprehension problem? How is the inability to understand a foreign language different from the inability to understand legalese?
TIA
I don't agree to that.
If the statement is expanded to something like "many workplaces have policies in place prohibiting the download of porn", then I'd think it a true statement. I'd even accept "porn is a controversial thing, and many people don't want exposure to it". But stated as is, it too easily implies an immoral component to the act of downloading per se, which I feel obligated to reject.
How ironic that the ./ editor's comments for an article about the bindingness of a login code of conduct end up including the presumption of such a thing.
- First they ignore you, then they laugh at you, then ???, then profit.
Maybe something like this would help:
http://www.javacoolsoftware.com/eulalyzer.html
"I forgot my mantra."
The thing to realize is that if an employee has been working for 31 years at a company (as per the article), then his employee contract predated the internet.
Forcing the employee to "update" his contract to a new standard is illegal in most places,
as there is an undue influence from the employer's side (the employee's loss of the job) and
there is an additional responsibility on the employer's side (keeping their end of the original contract)
So if the employee had signed (as in physically signed) a new contract, there should be a quid pro quo, essentally a benefit to him that was not in his old contract. There also should be no duress (even implied) to sign the new contract, so the offer has to be credible enough to be considered (a measly $1 won't be enough to cut it)
The upshot is that you can't just go off and one-sidedly renegotiate somebody's contract (employment or otherwise) without offering them something and without allowing them to say no.
That's not a legally binding contract in most jurisdictions (specially those derived from common law).
The issue of click through vs signing directly is a good one, but in this particular case,
the defendant's lawyer(s) could have also fallen back on the fundamentals of contract law.
I suspect his cat is more intelligent and better at the game than plenty of the people Ive grouped with. And probably speaks english better than the farmers. I dont see how blizzard could possibly find out, unless the infamous Warden is now rigged to take over your webcam too.
> ...but recognition that Click EULAs/other agreements are not binding is
> probably good.
I see no mention of "clicking" or "EULAs" in the article.
Warning: this article may contain humor, sarcasm, parody, and perhaps even irony. Read at your own risk.
Hmmm, a colleague!
Downloading at work is just a shade off from downloading with company properly, it's still misuse of a company asset - at work just also means it's on company time as well. Not to mention that quite a lot of people when they download such material are doing so "one-handed," and if a client happened to see a naughty URL or something bad in the cache it could cause issues for the company. In addition, would you want to be the one that got his hand-me-down laptop?
Still, if he had really wanted to keep the laptop "clean" from his surfing habits, he could have used a thumb drive and a bootable-OS CD. However, if he had really wanted to keep things clean he could have used or bought his own damn laptop.
Anyway, perhaps instead of just clicking through there could just be a little quiz at the bottom of the EULA and if you don't score high enough it won't install until you do it again.
You are so boring that when I see you my feet go to sleep.
When I started at my current company. I filled out an internet use form that was actually an extended sexual harassment waiver. In summary, it read pretty much like this. "While working you have internet access. The internet is a place that some might find offensive. By signing this form you agree to not be offended by some of the content on the internet."
I work for a company that develops a web filtering (among other types) appliance. This is a blanket form that everyone has to sign for fear of being sued into oblivion by a Sexual Harassment lawsuit because someone saw someone looking at porn.
I can only agree with the outcome. What I don't get is why people get fired for surfing porn. If your surf for porn, you get fired, no matter it only took about 15 minutes. If you however are bury watching Ebay to get that deal and you are surfing it for several hours, it doesn't matter.
And what about people who read a newspaper and don't do their work?
People should be fired not because of the content, but because of the fact they do not do their job. The best solution is a very tight network, with PC's people can use for personal stuff on a seperate network during their breaks.
Don't fight for your country, if your country does not fight for you.
I guess the question is what a EULA or TOS license is providing as a contract.
Clearly there must be some value exchange or the service or software provider would be a fraud or a thief.
The common BSD license phrase disclaiming responsibility for a particular purpose or use basically says that the author is taking no responsibility for whether the software does what it was designed to do. From a financial perspective that makes sense, but if the software doesn't do what it was designed for then it may as well not exist, as it serves no defined purpose or function. Such a license is only a legal protection construct, not a measure of any amorphous "thing" software may be.
Even with "free" or OSS software, there must be some other value a software, service, or distribution provider is selling. I can't see people paying $50+ for a shiny box, so that's not the intrinsic value of shrink-wrap software distribution.
People must be paying on the presumption that the software will work as advertised and designed.
Proprietary products must function as documented and designed, and any unreasonable defects must be repaired, the same as an automaker has to issue a recall. The service contracts are analagous to leasing arrangements, where the actual ownership of the product or service isn't at the heart of the deal -- the functionality and honest best efforts to meet service goals is sold by the provider, not actual ownership of the software.
Similar to safety regulations, industry standards for functionality and services define the minimal capabilities of a product before it can be licensed and used. Products which claim to provide a service without meeting the relevant industry standards are an unnecessary risk, and working around their flaws is an additional ongoing investment over the initial purchase price. i.e. Non-standard is a bad investment for a technical architecture.
I do not fail; I succeed at finding out what does not work.
Okay, so they can't fire him for violating their login agreement. But surely they can fire him for being the kind of moron who thinks that downloading porn at work is okay? I mean, does anyone really need to be told that downloading porn from the office is a bad idea? Its almost like natural selection when people like that get fired.
Life needs more saving throws.
Saying porn at work is bad is recklessly throwing out an important sector of your business that you should be profiting from.
When discussing our internet policy we seriously considered blocking etrade and hotmail other sites that were only used for personal use -- but the marketing staff made a compelling case (10% of revenue, more of profit) that porn sites should not be blocked.
porn at work == good. most workplaces == bad.
http://www.techtales.com/ttales0303.html#tale25
Just because it CAN be done, doesn't mean it should!
They probably do that on purpose hoping you will just go buy another. The corporate drones think all "consumers" / "customers" are stupid--unfortunately many are, so the companies get away with it to a point. The people who get it end up shuffling between companies for a long time until they find one who doesn't rip them off. Then the good company changes the CEO, and they start doing shit. Cycle starts over again.
No joke, I was working as a temp in a mfg plant a few years ago. I was told if there was any defect in the product, place it in such a way so they could blame the customer when it came back. They really do it.
recognition that Click EULAs/other agreements are not binding is probably good. The question is what replaces them?
Nothing! What does anyone need that isn't automatically provided by a simple copyright statement? Such a statement asserts that the software can't be copied, redistributed, modified or sold without permission. What more does a proprietary developer want? Anything beyond what copyright grants to the author NEEDS to be an explicit transferal of rights via a contract.
Don't blame me, I didn't vote for either of them!
I am just curious, but why would lugging in a desktop be a hit against you? What if you don't have a laptop, or the game works on your underpowered laptop but not your destop?
This is the exact reason I don't like doing business with commercial software companies. They screw you every which way they can, and if their product doesn't work, they don't even give you a refund. At least with open source, you don't have to pay for it and may be able to fix what is broken...
Yeah, I don't understand why people think they can sue for a million dollars for any minor violation. I've also seen plenty of small businesses go under because they thought they should be instant profit powerhouses, so they charge insane prices. When that happens, it never makes money for the business. The few people who walk in see the prices and run away.
This is where I would lose. I would probably use the term copyright infringement, and if the judge asked why, I'd say: "Theft is where you go down to the store and take something, copying things without the copyright owner's permission is copyright infringement. I'd rather not do either, but you people are making good arguements for it!"
IANAL, but I would say a EULA is a blank contract. You buy the product, then take it home. To use the product you just paid for and they won't take it back, you are required to "sign" another contract[1] you didn't see before. It won't run the program you bought until you click "I agree." Isn't this duress? [1]You already created a contractual agreement to own that copy of the software and the store gets the money. As I understand copyright law, you aren't allowed to redistribute more copies, but you are allowed do anything else with it.
---I am just curious, but why would lugging in a desktop be a hit against you? What if you don't have a laptop, or the game works on your underpowered laptop but not your destop?
It comes down to looks. It's more professional looking to have a laptop so the judge can fiddle the 30 seconds if they want. The desktop, while may work, is so damn cumbersome that it detracts from the open-and-shut case you'll have.
---This is where I would lose. I would probably use the term copyright infringement, and if the judge asked why, I'd say: "Theft is where you go down to the store and take something, copying things without the copyright owner's permission is copyright infringement. I'd rather not do either, but you people are making good arguements for it!"
People hate pompous asses, judges included. To argue with a judge on ANYTHING is suicide in your case. Use plain words with simple definitions.
I forgot a link for duress. www.answers.com duress
I also thought I put a p tag in that paragraph where the footnote starts. Oh well. Sucks to be me. :-)
By agreeing to a code of conduct, or a contract, you are making an agreement.
So now we can just violate contracts or conduct by pulling a Ronny Raygun and saying we don't remember? Civilization itself is based upon understandings between people, and that they will do what they agree to do. If people can just ignore agreements because they don't like them, or because they are inconvenient, or because they are too damn lazy to read/understand anything... where does that leave society?
Welcome to the future. It's sure starting to seem a lot like institutionalized anarchy.
This isn't hard--if you want to have compliance, then train people to do the right thing. Having an check-the-block attitude towards security is a management problem as well as a user problem. I'd bet they also have employee problems with sex discrimination (check the block to say you never tell dirty jokes) and with religious discrimination (a rabbi, a priest and an imam all walk into a bar....). If you want to change behavior, set the example and train people.
you have won slashdot
my password really is 'stinkypants'
The answer to all this is a short multiple choice test instead of (or in addition to) a simple button labeled "I Have Read And Understood the EULA." For example:
/yes, I know. evil. pure evil.
I am permitted to copy this software:
(A) Once, for archival purposes
(B) As many times as I want
(C) Never
(D) Once a year, twice on leap year
I can give away copies of this music to:
(A) All my friends
(B) Anyone in the world
(C) The Easter Bunny
(D) I can't give away copies of this music.
It is acceptable to do the following in the chat room:
(A) Use abusive language
(B) Use obscene language
(C) Use racist language
(D) None of the above
etc. etc. Don't let the user install until they have passed a test verifying that they understand every clause of every paragraph of the entire EULA.
IAAL, in New South Wales (where this happened), but TINLA
The directions about acceptable use do not need to constitute a contract - all they need to do is constitute a reasonable and lawful order given to an employee. Where an employee refuses to follow a reasonable and lawful order, they can be dismissed without notice - this is basic employment law. Of course any employee can be dismissed with notice for any reason or no reason at all. No EULA or contract issues here, move along.
Where the employer ran into problems is with the unfair dismissal rules, which apply in Australia to all employees earning less than around $100,000 per year other than employees of small companies (less than 100 people). These laws require that the employer be fair to the employee when deciding to terminate - that is, that the termination not be harsh, unjust or unreasonable. This means that things like you don't terminate: for breaches of rules not adequately notified; for inadvertent failures unless chronic and the employee has been given notice of their shortcomings and opportunities to improve; for alleged conduct without giving the employee an opportunity to explain themselves; or as in this case, for breaches of rules where there is no real expectation that the rule breached will be enforced.
The public generally has a simpler understanding of the rules than that, and of course the real rules are much more complex and nuanced. However it wouldn't matter if the rules had been tattooed to the employee's forehead and signed in blood - if the company had created an expectation that they wouldn't be enforced, then the court would have found the dismissal for breaches of those rules to be unfair. The manner in which the rules are notified merely affects what would have to happen to create an expectation that the rules would or would not be enforced.
The IRC didn't refer to an 'air of automatically,' but an 'air of automaticity.' I don't want people to think that Australians are un-edumacated.
a) It has been years since software was packed such that you could not read the EULA before breaking the seal.
b) No one forced you to buy the software, hence "duress" does not apply.
c) If, after reading the EULA, you decide not to install the software, return it to the retailer. As a grandparent mentioned, sue for the refund if necessary.
I do not fail; I succeed at finding out what does not work.
As a (previous) employee in Australia, I've questioned some of the draconian things I've been asked to sign. Common responses are "this is just standard.. everybody signs it" or "sign this as is, or you don't get the job". The latter is particularly pernicious since often you are only presented with this paperwork on your first day, i.e. after quitting your last job. It's good to see courts finding such dirty tricks as being unenforceable. Australian management, being amongst the worst in the world, typically seem to rely on these "techniques" rather than honest negotiation.
It's interesting to me that the related issue of EULAs on software has met with such negative feedback here. Sure, I almost invariably click through a EULA without reading it whenever I install a piece of software, but surely the creator of some software that I've just downloaded for free has a right to ask something of me in exchange for use of the software? The important point is that I can still **choose** whether or not to install the software. I see no reason why the software should come with "no strings attached" -- provided I get to choose whether or not to take the whole package, after being made aware of **both** the features and the strings. The only improvement I would make is to suggest that paid-for software should provide the potential customer with the opportunity to read the EULA before purchase.
Huh? Most software I've seen might state on the box that there's an EULA inside, but there's no way they'll manage to get that lengthy thing printed on the box. In most cases you have to take it home, open it, insert the cd, and read the EULA when the installer comes up. I don't know what seal you're talking about, but I'm sure I've broken it already in that little sequence.
b)I think you are confused as to where the duress comes. It has nothing to do with someone forcing the customer to buy the software. They hold the software you already bought hostage until you click the EULA. You already paid for it--you own it, you don't have to agree to anything after. I think forcing a person to agree to a contract before they are alowed to use property they own should be considered duress, if it isn't already.
c)If a store has a policy requiring me to sue if there is anything wrong with a product I buy from them, I am not shopping there. Maybe you can go down to court for every little reason, but most people can't afford to waste the time and effort required.