🚀 go-pugleaf

On Mon, 12 Oct 1998 01:47:23 GMT, john@dhh.gt.org wrote:

>I wrote:
>> Because the two parties find it in their mutual interest to make it so.
>> The Microsoft license you refer to is not written into law: it is what
>> Microsoft choses to offer and you chose to accept.
>
>Michael O'Neill writes:
>> copyright and license agreements are two seperate things.
>
>I'm aware of that.  It is irrelevant to my point.
>
>> The average shrink wrap license is what is called a contract of adhesion
>> and is of dubious enforceability.
>
>I'm aware of that as well.  It is also irrelevant to my point.
>
>> Try to negotiate a different license agreement with MS.
>
>Large businesses do so routinely.
>

I'm not a large business.  Are you?  The original statement was that
if you don't like the terms of the shrinkwrap agreement, you can
refuse to accept it and negotiation directly with Microsoft.  As a
matter of fact, unless you are a large business, you cannot do that,
which is one reason these so called contracts are not enforceable.

>> That's why its called a contract of adhesion, you aren't even made aware
>> of the contract until after you've already paid for the product.  It's an
>> absurd concept,...
>
>Yes, of course it is.  Much law is absurd.
>

in this case, it's not the law that is absurd, it's the attempt to
impose a unilateral contract upon another.  The law reaches the
correct result -- it doesn't enforce the contract of adhesion.

>> I got news for you bud, there are all sorts of restrictions on what you
>> and your employer can agree on.
>
>So just because I've already been screwed out of some of my rights, I'm
>supposed to willing give up more?
>

I think the point has already been made that all of your "rights" are
by necessity somebody else's limitations.  I'm really not that
interested in debating the legitimacy of society passing certain
minimal laws regulating commercial conduct.  If this is getting
screwed out of your rights in your opinion, I'm not going to be able
to change your mind on that.

>> acceptance of one thing is always rejection of everything else.  If you
>> decide to eat lunch at 12 pm, you are deciding not to do other things at
>> 12 pm.
>
>But I am deciding.  A law requiring that lunch be eaten only at 12 noon
>(12 pm is midnight) would deprive me of my freedom to choose.
>

Yes of course, but that wasn't my point.  But see above comment.

>> ...but there are already lot of restrictions on that right,...
>
>I repeat: why should I want to give up more rights, just because I have
>already been deprived of some?
>
>> ...most of which the majority agree are desireable.
>
>Most of the majority figure that if it is what they want to do it is ok to
>compell the minority to do it.  You approve of tyranny of the majority?
>

It depends on what we're talking about.  If we're talking about
deciding what side of the road to drive on, yes, I think the majority
has the right to make that decision.  The decision has to be made.
Likewise, government has to be funded, so the majority's voice should
decide on how that will be done.

I don't see the tyranny in this.  Maybe under your definitions, there
is tyranny or anarchy and nothing in between.

>> freedom of contract is really only a freedom among people of equal
>> bargaining power.  In the real world, this rarely exists.
>
>The notion of unequal bargaining power is meaningless unless one of the
>parties possesses the power to use forceable compulsion: i.e., a government
>(I expect this statement to meet with hoots of derision to which I see no
>point in responding).
>-- 

actually, if I understand this comment correctly, I would probably
agree with it.  A contract means nothing unless it can be enforced.
Government provides the means of enforcement through the courts.  Once
you have a civil judgment, you've got the forceable compulsion of the
state at your service to enforce it.


>John Hasler
>john@dhh.gt.org (John Hasler)
>Dancing Horse Hill
>Elmwood, WI