Ditch the filter you're using and install something that refuses to accept the spam in the first place. If it bounces off the server, and it's a false positive, the sender will know it and re-send or contact you directly.
SpamAssassin and Spamass-Milter are excellent.
Re:You'll pry my TiVo out of my cold dead hands...
on
New Linux PVR Box
·
· Score: 1
THANK YOU! I have reviewed the "hacks" (it's where I found the "enable 30 second skip" feature) but never saw this one. When enabled as described above, there are 3 sorting options: 1) Sort by date recorded (the default). 2) Sort by expiration date. 3) Sort alphabetically (just what I wanted).
Re:You'll pry my TiVo out of my cold dead hands...
on
New Linux PVR Box
·
· Score: 2, Interesting
I'm curious about the bugs I've seen in my DirecTiVo and I'm wondering if anyone else has seen them too. The unit is a new HNS HDVR2. 1) When turning on the unit and going straight to the "now playing" list, when you play something, there is no audio. To get audio, you must go to "live tv" and then back to your show on the playlist. 2) When using the fast-forward (or the skip 30) features, the audio will drop out for a few seconds sometime after you resume playing at normal speed. It seems to happen every time and only mutes the sound for about 2 or 3 seconds. 3) Sometimes while scrolling through the "now playing list" the unit will hang. It will continue to queue up all the buttons you press but will not respond to any of them for 10 to 15 seconds. 4) The "please wait" screen seems to stay on the screen for a very very long time. Sometimes it's there for 30 seconds or more. 5) Not so much a bug as a but a lack of features. How do you find the remaining recording capacity? (You don't!) How do you sort the "now playing" list by something other than the date recorded? (You don't!) These problems make the unit very annoying to use.
This article from the paper in Senator Bowen's district covers it pretty well. Senator Bowen has been a strong consumer advocate and has introduced many similar bills in the past. Her most notable work was trying to enact stiff penalties for junk faxes. That bill was also killed by the spam/fax lobby.
Since Bowen is the senator from my district, I cannot vote against the other corrupt politicians who killed this.
So apparently Earthlink is saying they will no longer accept e-mail from people who use text-only mail systems. Now a graphical, html aware mail reader will be required to successfully authenticate in response to the challenge.
A requirement for successful removal of negative feedback through SquareTrade is that BOTH PARTIES MUST AGREE TO ARBITRATION. If the poster of the feedback refuses, you're stuck. I've been there. I got hit with 'neutral' feedback in retaliation for my 'neutral' comment (which by all rights should have been 'negative') about a shady seller. SquareTrade couldn't do anything because the other guy refused to discuss it.
One positive thing I have to say about SquareTrade: Since the other guy refused to arbitrate, SquareTrade did not charge me anything for their (lack of) service.
was that there is infinate spectrum. This is true because there are an infinate number of frequencies (as in points on a line) between any two different frequencies. The problem arises when you want to put INFORMATION (as in modulation) on the frequency in question. All known modulation types (eg. AM/FM/PM/PSK etc.) cause changes in the (measurable) frequency of the carrier. There will always be some amount of interference if two modulated carriers have bandwidths which overlap. Those effects can be minimized in hundreds of ways, but never eliminated.
A 550 error is a permanent reject. The spam source knows that the mail cannot be delivered so it quits. A 450 error tells the connecting smtp server that your server is temporarily unable to deliver the mail, but that it's not a fatal error and delivery should be retried. This is much more likely to keep the message in the spammer's mail queue.
The protocol should be revised to include specifications on error handling. If an attack of this nature is attempted, the server should at some point stop responding to the bogus packets.
You have an excellent point, but I think you underemphasized part of it. (In the USA,) anyone with a security interest can read you(r e-mail *WITHOUT A WARRANT*). The same thing applies to VoIP telecommunictions. No warrant is required to listen in.
A warrant is however required for monitoring a POTS (Plain Old Telephone Service) phone. It's funny how our courts have decided that the fourth amendment does not apply to digital communications.
Gary Killdal (SP?), the orignal CP/M programmer had a company named "Digital Research". Some other small company in Seattle (name?) basically just re-wrote the disassembled source for the x86 processor. The entire API was virtually identical. The small company sold the OS to Microsoft and "DOS" was born. DR tried to sue MS for infringement. I think the case was settled before the court had a chance to rule.
Well you may be right but when I posted the link, it was the only article I could find that even mentioned the possible damage to the left wing. Now the news is out everywhere. Fox has a pretty good story from AP at: http://www.foxnews.com/story/0,2933,77303,00.html
The Washington Post article at http://www.washingtonpost.com/wp-dyn/articles/A100 88-2003Feb1.html discusses the possible damage to the left wing during liftoff, the lack of a robotic arm to observe any possible damage, and the subsequent events during landing.
sqrt(sqrt(2143/22)) I remember reading this in an old Scientific American over 20 years ago. It's accurate to 9 digits which is 3 times better than 22/7.
I wondered the same thing when I read that part. I don't beleive it's right to assume that an alien race would compensate for the doppler shift created by their own solar system. Look at what we do with our satellites and space probes: We always compensate for doppler at the RECEIVING end.
Re:Mortgage points and auto loan 'doc prep fees'
on
Add-Ons Add Up
·
· Score: 1
A popular alternative to PMI is a second trust deed loan. You can use it to make up the difference between what you have for the down payment, and 20% of the total. The nice thing about this is that the interest on the second loan is also deductable as mortgage interest on your tax return. PMI is like flushing your money down the loo. You're paying for a service that benefits the lender and gives you nothing in return.
Just devise a method to falsify the unique hardware ID when logging on, and automatically sequence through a large block of IDs. They will all be banned eventually and MS will have to remove the ban to allow normal user access.
A few months ago my spam level reached the point that made me do something about it. After looking carefully at all the headers, I concluded that about 80% of the junk (mostly from Asia) came from IP addresses with no reverse DNS database entry. (The IP did not resolve back into a hostname.) Just about all reputable mail exchangers have a reverse DNS entry. (The ones who don't are run by the clueless.)
I decided to use this to my advantage. You can too.
If your sendmail daemon uses the tcpwrappers library, you can create a/etc/hosts.deny file with "sendmail: ALL" and a/etc/hosts.allow file with "sendmail: KNOWN". (Make sure "sendmail" equates to 25 in your/etc/services file.)
Doing the above will cause your mail exchanger to refuse incoming mail connections from any host with an unresolvable IP address. It will cut up to 80% of your spam.
For the clueless ISPs, you can add exceptions to your/etc/hosts.allow file. (e.g. "sendmail:66.187.232." will allow mail from RedHat.)
There are over a billion people in China. If only 10% of them have computers with Windows, that's $30,000,000,000.00 to Microsoft (at $100.00 per copy). China has a reputation for wanting to hold onto its money. They have strict laws governing the import of foreign goods.
A Lawyer Looks At Software Licensing
by L.J. Kutten
For the past four years; many software companies have been publicly bemoaning their losses to unauthorized duplication. They claim for every "legal" copy sold, three or four illegal copies are eventually distributed. When asked for proof, they do not give it. Their only evidence is their "private" research (which they will not submit to third party verification).
While no industry expert denies the existence of unauthorized duplication, experts differ on whether this duplication actually deprives a company of profits or sales. Take the following two examples: * A 13-year old child possesses unauthorized CP/M versions of dBase II and Wordstar configured for the Apple II computer. He neither owns a CP/M card nor a printer. To him, the software is like baseball cards, the more he "owns" the better; and * The business person who wants to try out a $800 program to make sure it will (1) fulfill his needs, or (2) work adequately with his hardware (perhaps there is a printer conflict). If the software does not work, the floppy diskette containing it goes back into a pile. If does work, a legitimate copy is purchased so the user can get support.
Whatever the real extent of the problem, companies are searching for a solution. Many have adopted a "tear open" license agreement as their way of handling the problem.
A typical tear open license agreement (also called "shrink wrap" or "box top") is a one page form attached to the outside of mass marketed software. On the form is a statement that says "OPENING THIS PACKAGE INDICATES YOUR ACCEPTANCE OF THE AGREEMENT AND THAT YOU AGREE TO ABIDE BY ALL THE TERMS AND CONDITIONS SET FORTH." Following the statement are a set of rules and prohibition which "control" use of the software. Typical provisions include the following: 1. Warranty disclaimer: The software is sold "AS IS." The manufacturer totally disclaims any express or implied warranties. If the software does not work as expected (or at all) that is the buyer's problem and not the manufacturers; 2 Prohibition against disassembley: The program cannot be disassembled or patched for any reason; and 3. Prohibition against resale: Under no circumstance can the original purchaser transfer his ownership interest in the program, whether it be by sale, lease, rental, or even by gift. If the purchaser has no further need for the program, it must be destroyed or returned to the manufacturer.
The software manufacturers claim that by opening the package the user has agreed to abide by any term found on it. Not surprisingly, users claim the forms are not worth the paper they are printed on. Whether or not these agreements are binding is open to question. There are no cases, at either state or federal level, to interpret them.
The Problem With Tear Open Agreements
The enforceability of tear open agreements begins with the proposition that (1) they are binding contracts and (2) the developer has retained title to each individual copy of the program. The fact that a developer has claimed they are binding contracts or he has retained title is unimportant. A court would look at what really occurred as opposed to what one party calls the transaction.
Are They Binding Contracts? If the license agreement is to be binding, the manufacturer must be able to prove that both parties considered it to be part of the contract before the sales transaction was completed. If the agreement was not known until after the sale was completed (e.g. the seller got paid and the buyer got the software), then it is void. Under general principal of contract law, no party can unilaterally add additional terms to a contract after it has been accepted.
In a normal retail sales situation, the manufacturer can argue that the buyer knew or should have known of the license agreement prior to sale and thus should be bound by it. The trouble with assumption is that a buyer would claim (1) he had no knowledge of it and that the vendor did not mention it or (2) that the vendor did mention it but the buyer told the vendor that he did not consider it binding. (How many retail sellers would refuse to take the buyer's money in such a circumstance?)
In mail order sale, the license agreement is almost never mentioned. The first time the buyer finds out about it is after the goods have been received. In such cases, the agreement is not worth the paper it is printed on.
A court would also be bothered by the fact that a tear open agreement is a contract of adhesion. That is, it is offered to the buyer on a "take it or leave it" basis. The buyer cannot bargain about the terms contained in it. The law does not favor adhesion contracts and they are automatically suspect.
Finally manufacturers must realize that no court will ever enforce a contract where the buyer pays for software and the manufacturer, through a tear open contract, does not promise to deliver anything.
Are They Licenses? There are a number of factors to determine whether a license (with retained ownership) or a sale of a copy is involved:
1. Is the license for a limited period? 2. Does the license have to be signed before the software is made available? 3. Is more than one payment made to the "licensor?" 4. Does the "licensee" have any obligation to return its copy of the software to the "licensor" if he has no further use of it (i.e. can he throw it in the trash without liability)? 5. Does the "licensor" have any duties to the "licensee" to make sure the software even works?
An answer of no to each question would indicate that the parties really intended the transaction to be an outright sale. This is clearly seen if you examine the license agreements for minicomputer and mainframe computer software. These agreements are typically (1) for a definite period of time, (2) the license agreement must be signed by all parties prior to delivery of the software, (3) in many instances the licensee has to pay a yearly royalty/service fee, (4) the licensor agrees to upkeep and modify the program as necessary, and (5) the licensee has a duty to return the software after a specified period.
Other Problems With Tear Open Agreement: Even assuming a court would find a tear open agreement to be a binding contract or a true license agreement, there are many other problems that must be resolved.
Tear open agreements may violate four provisions of Article Two of the Uniform Commercial Code (the U.C.C.) Article Two codifies the law of sales and it is the law in every American jurisdiction except Louisiana.
U.C.C. |2-312 gives a dealer the power to transfer all rights, including title, to the buyer unless the dealer gives the buyer actual notice of the limitation. There is nothing to prevent software manufacturers from contractually requiring its dealers to give this written notice on their sales forms.
U.C.C. |2-513 gives the buyer the unqualified right, except in C.O.D. sales, to inspect the goods at any reasonable time and place before accepting them. The buyer can take the sealed package home, remove the shrink wrap and test the software to make sure it fulfills its advertised claims, etc. Given the fact that many software packages require a minimum of 30-40 hours training to utilize, the fact that a demonstration package was available or that the buyer could try the software out a a local store (how many stores would allow any user to tie up a machine for 35 hours to test one package) is irrelevant. The buyer has a reasonable time to inspect the goods and either accept or reject them.
Under U.C.C. |2-201 if the price exceeds $500, the party being bound by a contract has to sign a writing relating to the contract. Thus, the buyer pays $501 for a software package and did not sign the restrictive agreement, then the terms of the agreement do not bind him.
Many license agreements disclaim all warranties (i.e. the software is sold "as is" and the manufacturer guarantees nothing). Under U.C.C. |2-316 this is permissible, except whenever an express warranty disagrees with a disclaimer, the warranty will prevail. The law says express warranties are created by instruction manuals, training guides, use of demonstration models, advertising and the like. Thus any disclaimer of an express warranty is voidable.
Tear open agreement may also violate various federal and state consumer protection statutes. It is arguable that the manufacturers have committed fraud against the buying public in that they encourage the public to buy their products yet do not advertise their license restrictions. It is a deceptive trade practice under the Federal Trade Commission Act (a federal law) to let a transaction look like a sale when it is not. Many states have similar legislation.
Courts would also be bothered by the fact that the consumer bears the entire risk of loss. In a U.S. Supreme Court case dealing with price fixing, the Court said that risk of loss after transfer of possession weigh heavily in determining whether or not a sale has taken place. If the buyer bears the entire risk of loss, it strongly indicates a sale, and not a license took place.
Can a sale later become a license? The license says that "opening the package" or "using the software" indicates acceptance of the license terms. Does that mean the buyer did not accept them at the point of purchase? If so what did he buy? If he did buy it, does he lose or forfeit some property right upon opening the package. If so, the manufacturers should realize that the law does not like forfeitures of any type.
There may be an admission against interest in requiring the buyer to sign a card acknowledging the validity of the license agreement. Under the law, a party cannot have contradictory claims. If the agreement is really self executing, why require the buyer to sign a card acknowledging its validity unless the manufacturer has its own doubts about its self execution?
There may be another admission against interest in that many manufacturers, for income tax purpose, treat the transaction between themselves and their dealers as sales and not licenses. Similarly, a court would inquire into whether or not the manufacturer took returns from its dealers. If it did not, then it indicates a sale took place.
In the same genre, manufacturers fail to control their dealers. If they really wanted to create binding licenses they could contractually require their dealers to have the license agreement signed before delivery of the software. They do not do this. (Too much trouble they claim.) Instead they exercise almost no control over dealer's selling practices. Most dealers treat software the same way they treat hardware. The dealer uses sales forms, invoices and receipts that imply a sale took place.
This post reminded me of an issue that I haven't seen discussed very much.
The US FCC was created to regulate all areas of communications including radio. The original reason for licensing transmitters was to ensure that they did not interfere with each other. Lately (sometime within the past 20 years or so), they have adopted the attitude that they *OWN* the natural resources, and have been auctioning off spectrum to the highest bidder for billions of dollars a pop. This just doesn't seem right.
I read about this thing a few years ago. After seeing all the comotion here, I went back and dug up the URL. Here it is: http://www.solotrek.com
If this isn't it, I'll be it's something similar.
Slashdot Mirror
Ditch the filter you're using and install something that refuses to accept the spam in the first place. If it bounces off the server, and it's a false positive, the sender will know it and re-send or contact you directly.
SpamAssassin and Spamass-Milter are excellent.
THANK YOU!
I have reviewed the "hacks" (it's where I found the "enable 30 second skip" feature) but never saw this one. When enabled as described above, there are 3 sorting options: 1) Sort by date recorded (the default). 2) Sort by expiration date. 3) Sort alphabetically (just what I wanted).
I'm curious about the bugs I've seen in my DirecTiVo and I'm wondering if anyone else has seen them too. The unit is a new HNS HDVR2.
1) When turning on the unit and going straight to the "now playing" list, when you play something, there is no audio. To get audio, you must go to "live tv" and then back to your show on the playlist.
2) When using the fast-forward (or the skip 30) features, the audio will drop out for a few seconds sometime after you resume playing at normal speed. It seems to happen every time and only mutes the sound for about 2 or 3 seconds.
3) Sometimes while scrolling through the "now playing list" the unit will hang. It will continue to queue up all the buttons you press but will not respond to any of them for 10 to 15 seconds.
4) The "please wait" screen seems to stay on the screen for a very very long time. Sometimes it's there for 30 seconds or more.
5) Not so much a bug as a but a lack of features. How do you find the remaining recording capacity? (You don't!)
How do you sort the "now playing" list by something other than the date recorded? (You don't!)
These problems make the unit very annoying to use.
This article from the paper in Senator Bowen's district covers it pretty well. Senator Bowen has been a strong consumer advocate and has introduced many similar bills in the past. Her most notable work was trying to enact stiff penalties for junk faxes. That bill was also killed by the spam/fax lobby.
Since Bowen is the senator from my district, I cannot vote against the other corrupt politicians who killed this.
So apparently Earthlink is saying they will no longer accept e-mail from people who use text-only mail systems. Now a graphical, html aware mail reader will be required to successfully authenticate in response to the challenge.
A requirement for successful removal of negative feedback through SquareTrade is that BOTH PARTIES MUST AGREE TO ARBITRATION. If the poster of the feedback refuses, you're stuck. I've been there. I got hit with 'neutral' feedback in retaliation for my 'neutral' comment (which by all rights should have been 'negative') about a shady seller.
SquareTrade couldn't do anything because the other guy refused to discuss it.
One positive thing I have to say about SquareTrade: Since the other guy refused to arbitrate, SquareTrade did not charge me anything for their (lack of) service.
Yeah I know how to spell infinite. I probably should have proof read my post.
was that there is infinate spectrum. This is true because there are an infinate number of frequencies (as in points on a line) between any two different frequencies. The problem arises when you want to put INFORMATION (as in modulation) on the frequency in question. All known modulation types (eg. AM/FM/PM/PSK etc.) cause changes in the (measurable) frequency of the carrier. There will always be some amount of interference if two modulated carriers have bandwidths which overlap. Those effects can be minimized in hundreds of ways, but never eliminated.
A 550 error is a permanent reject. The spam source knows that the mail cannot be delivered so it quits. A 450 error tells the connecting smtp server that your server is temporarily unable to deliver the mail, but that it's not a fatal error and delivery should be retried. This is much more likely to keep the message in the spammer's mail queue.
The protocol should be revised to include specifications on error handling. If an attack of this nature is attempted, the server should at some point stop responding to the bogus packets.
You have an excellent point, but I think you underemphasized part of it. (In the USA,) anyone with a security interest can read you(r e-mail *WITHOUT A WARRANT*). The same thing applies to VoIP telecommunictions. No warrant is required to listen in.
A warrant is however required for monitoring a POTS (Plain Old Telephone Service) phone. It's funny how our courts have decided that the fourth amendment does not apply to digital communications.
Gary Killdal (SP?), the orignal CP/M programmer had a company named "Digital Research". Some other small company in Seattle (name?) basically just re-wrote the disassembled source for the x86 processor. The entire API was virtually identical. The small company sold the OS to Microsoft and "DOS" was born. DR tried to sue MS for infringement. I think the case was settled before the court had a chance to rule.
Well you may be right but when I posted the link, it was the only article I could find that even mentioned the possible damage to the left wing. Now the news is out everywhere. Fox has a pretty good story from AP at: http://www.foxnews.com/story/0,2933,77303,00.html
The Washington Post article at http://www.washingtonpost.com/wp-dyn/articles/A100 88-2003Feb1.html discusses the possible damage to the left wing during liftoff, the lack of a robotic arm to observe any possible damage, and the subsequent events during landing.
I thought Microsoft licenses disallowed use of open source/GPL software. How is it that they are involved in a development project that uses perl?
sqrt(sqrt(2143/22))
I remember reading this in an old Scientific American over 20 years ago. It's accurate to 9 digits which is 3 times better than 22/7.
I wondered the same thing when I read that part. I don't beleive it's right to assume that an alien race would compensate for the doppler shift created by their own solar system. Look at what we do with our satellites and space probes: We always compensate for doppler at the RECEIVING end.
A popular alternative to PMI is a second trust deed loan. You can use it to make up the difference between what you have for the down payment, and 20% of the total. The nice thing about this is that the interest on the second loan is also deductable as mortgage interest on your tax return. PMI is like flushing your money down the loo. You're paying for a service that benefits the lender and gives you nothing in return.
Just devise a method to falsify the unique hardware ID when logging on, and automatically sequence through a large block of IDs. They will all be banned eventually and MS will have to remove the ban to allow normal user access.
A few months ago my spam level reached the point that made me do something about it. After looking carefully at all the headers, I concluded that about 80% of the junk (mostly from Asia) came from IP addresses with no reverse DNS database entry. (The IP did not resolve back into a hostname.) Just about all reputable mail exchangers have a reverse DNS entry. (The ones who don't are run by the clueless.)
/etc/hosts.deny /etc/hosts.allow file with "sendmail: KNOWN". (Make sure "sendmail" equates to 25 in your /etc/services file.)
/etc/hosts.allow file. (e.g. "sendmail:66.187.232." will allow mail from RedHat.)
I decided to use this to my advantage. You can too.
If your sendmail daemon uses the tcpwrappers library, you can create a
file with "sendmail: ALL" and a
Doing the above will cause your mail exchanger to refuse incoming mail connections from any host with an unresolvable IP address. It will cut up to 80% of your spam.
For the clueless ISPs, you can add exceptions to your
I wish more people would do this.
There are over a billion people in China. If only 10% of them have computers with Windows, that's $30,000,000,000.00 to Microsoft (at $100.00 per copy). China has a reputation for wanting to hold onto its money. They have strict laws governing the import of foreign goods.
A Lawyer Looks At Software Licensing
by L.J. Kutten
For the past four years; many software companies have been
publicly bemoaning their losses to unauthorized duplication. They
claim for every "legal" copy sold, three or four illegal copies are
eventually distributed. When asked for proof, they do not give it.
Their only evidence is their "private" research (which they will not
submit to third party verification).
While no industry expert denies the existence of unauthorized
duplication, experts differ on whether this duplication actually
deprives a company of profits or sales. Take the following two
examples:
* A 13-year old child possesses unauthorized CP/M versions of dBase
II and Wordstar configured for the Apple II computer. He neither owns
a CP/M card nor a printer. To him, the software is like baseball
cards, the more he "owns" the better; and
* The business person who wants to try out a $800 program to make
sure it will (1) fulfill his needs, or (2) work adequately with his
hardware (perhaps there is a printer conflict). If the software does
not work, the floppy diskette containing it goes back into a pile. If
does work, a legitimate copy is purchased so the user can get support.
Whatever the real extent of the problem, companies are searching
for a solution. Many have adopted a "tear open" license agreement as
their way of handling the problem.
A typical tear open license agreement (also called "shrink wrap"
or "box top") is a one page form attached to the outside of mass
marketed software. On the form is a statement that says "OPENING THIS
PACKAGE INDICATES YOUR ACCEPTANCE OF THE AGREEMENT AND THAT YOU AGREE
TO ABIDE BY ALL THE TERMS AND CONDITIONS SET FORTH." Following the
statement are a set of rules and prohibition which "control" use of
the software. Typical provisions include the following:
1. Warranty disclaimer: The software is sold "AS IS." The
manufacturer totally disclaims any express or implied warranties. If
the software does not work as expected (or at all) that is the buyer's
problem and not the manufacturers;
2 Prohibition against disassembley: The program cannot be
disassembled or patched for any reason; and
3. Prohibition against resale: Under no circumstance can the
original purchaser transfer his ownership interest in the program,
whether it be by sale, lease, rental, or even by gift. If the
purchaser has no further need for the program, it must be destroyed or
returned to the manufacturer.
The software manufacturers claim that by opening the package the
user has agreed to abide by any term found on it. Not surprisingly,
users claim the forms are not worth the paper they are printed on.
Whether or not these agreements are binding is open to question.
There are no cases, at either state or federal level, to interpret
them.
The Problem With Tear Open Agreements
The enforceability of tear open agreements begins with the
proposition that (1) they are binding contracts and (2) the developer
has retained title to each individual copy of the program. The fact
that a developer has claimed they are binding contracts or he has
retained title is unimportant. A court would look at what really
occurred as opposed to what one party calls the transaction.
Are They Binding Contracts? If the license agreement is to be
binding, the manufacturer must be able to prove that both parties
considered it to be part of the contract before the sales transaction
was completed. If the agreement was not known until after the sale
was completed (e.g. the seller got paid and the buyer got the
software), then it is void. Under general principal of contract law,
no party can unilaterally add additional terms to a contract after it
has been accepted.
In a normal retail sales situation, the manufacturer can argue
that the buyer knew or should have known of the license agreement
prior to sale and thus should be bound by it. The trouble with
assumption is that a buyer would claim (1) he had no knowledge of it
and that the vendor did not mention it or (2) that the vendor did
mention it but the buyer told the vendor that he did not consider it
binding. (How many retail sellers would refuse to take the buyer's
money in such a circumstance?)
In mail order sale, the license agreement is almost never
mentioned. The first time the buyer finds out about it is after the
goods have been received. In such cases, the agreement is not worth
the paper it is printed on.
A court would also be bothered by the fact that a tear open
agreement is a contract of adhesion. That is, it is offered to the
buyer on a "take it or leave it" basis. The buyer cannot bargain
about the terms contained in it. The law does not favor adhesion
contracts and they are automatically suspect.
Finally manufacturers must realize that no court will ever
enforce a contract where the buyer pays for software and the
manufacturer, through a tear open contract, does not promise to
deliver anything.
Are They Licenses? There are a number of factors to determine
whether a license (with retained ownership) or a sale of a copy is
involved:
1. Is the license for a limited period?
2. Does the license have to be signed before the software is made
available?
3. Is more than one payment made to the "licensor?"
4. Does the "licensee" have any obligation to return its copy of the
software to the "licensor" if he has no further use of it (i.e. can he
throw it in the trash without liability)?
5. Does the "licensor" have any duties to the "licensee" to make sure
the software even works?
An answer of no to each question would indicate that the parties
really intended the transaction to be an outright sale. This is
clearly seen if you examine the license agreements for minicomputer
and mainframe computer software. These agreements are typically (1)
for a definite period of time, (2) the license agreement must be
signed by all parties prior to delivery of the software, (3) in many
instances the licensee has to pay a yearly royalty/service fee, (4)
the licensor agrees to upkeep and modify the program as necessary, and
(5) the licensee has a duty to return the software after a specified
period.
Other Problems With Tear Open Agreement: Even assuming a court
would find a tear open agreement to be a binding contract or a true
license agreement, there are many other problems that must be
resolved.
Tear open agreements may violate four provisions of Article Two
of the Uniform Commercial Code (the U.C.C.) Article Two codifies the
law of sales and it is the law in every American jurisdiction except
Louisiana.
U.C.C. |2-312 gives a dealer the power to transfer all rights,
including title, to the buyer unless the dealer gives the buyer actual
notice of the limitation. There is nothing to prevent software
manufacturers from contractually requiring its dealers to give this
written notice on their sales forms.
U.C.C. |2-513 gives the buyer the unqualified right, except in
C.O.D. sales, to inspect the goods at any reasonable time and place
before accepting them. The buyer can take the sealed package home,
remove the shrink wrap and test the software to make sure it fulfills
its advertised claims, etc. Given the fact that many software
packages require a minimum of 30-40 hours training to utilize, the
fact that a demonstration package was available or that the buyer
could try the software out a a local store (how many stores would
allow any user to tie up a machine for 35 hours to test one package)
is irrelevant. The buyer has a reasonable time to inspect the goods
and either accept or reject them.
Under U.C.C. |2-201 if the price exceeds $500, the party being
bound by a contract has to sign a writing relating to the contract.
Thus, the buyer pays $501 for a software package and did not sign the
restrictive agreement, then the terms of the agreement do not bind
him.
Many license agreements disclaim all warranties (i.e. the
software is sold "as is" and the manufacturer guarantees nothing).
Under U.C.C. |2-316 this is permissible, except whenever an express
warranty disagrees with a disclaimer, the warranty will prevail. The
law says express warranties are created by instruction manuals,
training guides, use of demonstration models, advertising and the
like. Thus any disclaimer of an express warranty is voidable.
Tear open agreement may also violate various federal and state
consumer protection statutes. It is arguable that the manufacturers
have committed fraud against the buying public in that they encourage
the public to buy their products yet do not advertise their license
restrictions. It is a deceptive trade practice under the Federal
Trade Commission Act (a federal law) to let a transaction look like a
sale when it is not. Many states have similar legislation.
Courts would also be bothered by the fact that the consumer bears
the entire risk of loss. In a U.S. Supreme Court case dealing with
price fixing, the Court said that risk of loss after transfer of
possession weigh heavily in determining whether or not a sale has
taken place. If the buyer bears the entire risk of loss, it strongly
indicates a sale, and not a license took place.
Can a sale later become a license? The license says that
"opening the package" or "using the software" indicates acceptance of
the license terms. Does that mean the buyer did not accept them at
the point of purchase? If so what did he buy? If he did buy it, does
he lose or forfeit some property right upon opening the package. If
so, the manufacturers should realize that the law does not like
forfeitures of any type.
There may be an admission against interest in requiring the buyer
to sign a card acknowledging the validity of the license agreement.
Under the law, a party cannot have contradictory claims. If the
agreement is really self executing, why require the buyer to sign a
card acknowledging its validity unless the manufacturer has its own
doubts about its self execution?
There may be another admission against interest in that many
manufacturers, for income tax purpose, treat the transaction between
themselves and their dealers as sales and not licenses. Similarly, a
court would inquire into whether or not the manufacturer took returns
from its dealers. If it did not, then it indicates a sale took place.
In the same genre, manufacturers fail to control their dealers.
If they really wanted to create binding licenses they could
contractually require their dealers to have the license agreement
signed before delivery of the software. They do not do this. (Too
much trouble they claim.) Instead they exercise almost no control
over dealer's selling practices. Most dealers treat software the same
way they treat hardware. The dealer uses sales forms, invoices and
receipts that imply a sale took place.
This post reminded me of an issue that I haven't seen discussed very much. The US FCC was created to regulate all areas of communications including radio. The original reason for licensing transmitters was to ensure that they did not interfere with each other. Lately (sometime within the past 20 years or so), they have adopted the attitude that they *OWN* the natural resources, and have been auctioning off spectrum to the highest bidder for billions of dollars a pop. This just doesn't seem right.
I read about this thing a few years ago. After seeing all the comotion here, I went back and dug up the URL. Here it is: http://www.solotrek.com If this isn't it, I'll be it's something similar.