🚀 go-pugleaf

In article <70629@microsoft.UUCP> fredf@microsoft.UUCP (Fred FREELAND) writes:

>We're talking about opening a box that contains a clearly marked envelope of
>diskettes. On the outside of the envelope are the words, "IMPORTANT - READ
>CAREFULLY BEFORE OPENING. By opening this sealed disk package, you indicate
>your acceptance of the following Microsoft License Agreement."
>
>[stuff deleted]
>
>The whole point is, that if you are a normal person, with normal faculties and
>a normal understanding of the language, opening the disk envelope is, by
>definition, agreement with the terms of the licensing agreement. It doesn't
>matter if you think it's bogus or not. If you opened the envelope you have
>agreed, like it or not.
>

You seem to hold the position that anything placed upon the envelope by
Microsoft, and declared to be binding on any individual who opens the
envelope, is in fact binding, simply because Microsoft wishes it so.  You seem
to feel that a court of law will treat the act of opening a sealed envelope as
legally equivalent to signing ones name on a contract.  I submit to you that
such a view is an extreme one lacking any legal support.

Suppose Microsoft, among all the other tiny print on the disk envelope, added
the following sentence to its license:

	Furthermore, if this software was obtained for use by a place of
	business, then the act of opening the envelope by any employee of that
	place of business is sufficient to bind that business, and all current
	and future employees to the terms of this license.

Do you honestly believe that ANY court of law would uphold such terms?  Even
if I signed a license containing such terms and mailed it to Microsoft, they
would not be able to hold my employer and fellow employees to the terms of the
license.  

Just because someone can put together a plausable sounding terms on an
envelope, call it a license, and declare that any individual who opens the
envelope agrees to the terms written thereon does not make it so!

It is truly hard for me to understand that anyone could actually believe that
these sealed envelope "licenses" are valid.  But for arguments sake, let's
suppose that they are valid somewhere.  I suggest that Microsoft would find it
impossible to enforce the license in any court of law, because they would find
it impossible to produce evidence that the user of the software is the
individual who opened the envelope.

Consider the following scenario.  I go to a retail store and purchase a copy
of Microsoft C.  But I remind the salesman that the last time I purchased
software from this store, I had problems with several disks being bad.  I do
not want to make another 30 mile return trip.  He offers to check out all the
disks for me while I go across the street and grab some lunch.  When I come
back, he tells me that the disks all checked out.  So I take the package home.
When I open the box, I discover that the disks were placed into a new blank
envelope.  The original envelope, with the Microsoft license printed on it, is
no where to be found.

Or, try this on for size.  I bring home Microsoft C and ask my 6 year old
daughter to open the envelope containing the disks.  

In neither case did I break the seal on the envelope.  By law, my daughter is
not old enough to enter into a binding contract (or license).  So, even though
she broke the seal, she is not bound by the terms of the license.  Of course,
since I did not open the envelope, I am not bound by the license, either.

If Microsoft ever takes anyone to court over one of these "licenses", it will
first have to prove that the accused individual actually opened the envelope.
Assuming the accused chooses NOT to take the stand as a witness, Microsoft
cannot even get to first base.  The case gets thrown out of court because
Microsoft cannot prove that the accused opened the envelope.  

However, if, by some luck, it is able to prove that the accused opened the
envelope, it still must succeed in proving that the act of opening a sealed
envelope is the legal equivalent of signing ones name to a contract and
agreeing to the terms contained therein.  I rate the chance of success as slim
to none.

Consider that most theater and sports tickets, nowadays, have small print on
the back stating that the purchaser of the ticket agrees that the theater or
sports arena is relieved of all liability if anything were to happen to the
purchaser while at the theater or stadium.  In most jurisdictions, such 
disclaimers on the back of adminision tickets hold no legal standing. 

-- 
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Kevin Gallagher        kgallagh@digi.lonestar.org OR ...!uunet!digi!kgallagh
DSC Communications Corporation   Addr: MS 152, 1000 Coit Rd, Plano, TX 75075
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