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Peter Bhat Harkins
Book Licenses
One downside to the web being interactive is that it can turn everyday activities into legal agreements. If you bought or were given a manual for an ARM processor you could do what you like with it. But if you read one online, you’re entering into a license to give up your right to fair use quoting or to use it for all purposes (specifically, looking for patent infringement).
USER AGREEMENT FOR THE ARM ARCHITECTURE REFERENCE MANUAL
THIS AGREEMENT (“ AGREEMENT “) IS A LEGAL AGREEMENT BETWEEN YOU (EITHER A SINGLE INDIVIDUAL, OR SINGLE LEGAL ENTITY) AND ARM LIMITED (“ARM”) FOR THE USE OF THE ARM ARCHITECTURE REFERENCE MANUAL. ARM IS ONLY WILLING TO PROVIDE ACCESS TO THE ARM ARCHITECTURE REFERENCE MANUAL TO YOU ON CONDITION THAT YOU ACCEPT ALL OF THE TERMS IN THIS AGREEMENT. BY CLICKING “I AGREE” OR BY DOWNLOADING OR OTHERWISE COPYING THE DELIVERABLES YOU INDICATE THAT YOU AGREE TO BE BOUND BY ALL THE TERMS OF THIS LICENCE.
The ARM Architecture Reference Manual is protected by copyright and the practice or implementation of the information herein may be protected by one or more patents or pending applications. No part of this ARM Architecture Reference Manual may be reproduced in any form by any means without the express prior written permission of ARM. No license, express or implied, by estoppel or otherwise to any intellectual property rights is granted by this ARM Architecture Reference Manual.
Your access to the information in this ARM Architecture Reference Manual is conditional upon your acceptance that you will not use or permit others to use the information for the purposes of determining whether implementations of the ARM architecture infringe any third party patents.
[emphasis added]
Tech-savvy readers might be reminded of Richard Stallman’s classic Right to Read, but I want to head the other direction.
In a case decided in 1908, a publisher included this notice in the front of a novel:
The price of this book at retail is $1 net. No dealer is licensed to sell it at a lower price, and a sale at a lower price will be treated as an infringement of the copyright.
It was a contract of adhesion to require the reader to give up their right to use it for all purposes (in this case, resale).
The Supreme Court decided that selling an item did not include the right to put these kinds of limiting terms on an item, but the decision was made in the other direction when there is a clickwrap license involved. The act of clicking a button to agree, even when classic offline rights are involved and no negotiation is possible, is binding.
So ARM can decide to never print manuals, only license them online, to help reduce patent attacks. It could easily reach farther, perhaps trying to restrict the licensee’s right to write a negative review, though there isn’t yet law or precedent deciding what terms would and wouldn’t be considered unconscionable.
The argument over what is and isn’t permissible in these contracts isn’t getting much attention, in part because people generally don’t even read these things. A frame shows them a hundred words of all-caps legalize and people skip on to check a box or click a button to move on, people have no idea what they’re agreeing to. I mostly use Free software so I see less than most people, but I can’t keep up with all the terms on the websites I visit, there’s just too many written too obtusely.
Geeks have proposed a variety of schemes for marking up these licenses so that a user could have software alert them or prevent them from agreeing to terms they don’t like, but usage is minimal. Aside from being a complex topic most users are happy to ignore, publishers don’t have any incentive to make it more convenient for their customers to decide they’re getting screwed.
Looking to the future, I think the present practice of a term or two a year being adjudicated after a long and costly court battle will continue for at least a decade, probably two. No one has an incentive to drain this swamp. Even the companies that can afford to dispute terms don’t want the system fixed because they themselves use clickwrap agreements and benefit from it being undefined and expensive to argue.
Does anyone see a solution to this problem of too many contracts going unread and hiding unwanted terms from users?