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What a tangled web of legal niceties and hypothetical interpretations we've woven here. But the moral arithmetic, toward which European thought is tending, is m

What a tangled web of legal niceties and hypothetical interpretations we've woven here. But the moral arithmetic, toward which European thought is tending, is more brutal and something to which American corporations had better pay serious attention to if they want to keep playing this game. In general; we hold that "ignorance of law is no excuse", yet in contract law _capacity_ is a key construct, and ignorance very much _does_ play a part. It's not just minors, the mentally-ill, or those incapacitated by drugs or alcohol, discombobulated or bamboozled by other means, who cannot give consent in a contractual relation. In an age where most lawyers and judges, like everyone, mindlessly click-through "agreements" and shrink-wrap EULAs, there's a strong and growing argument to be made that non-expert adults lack genuine capacity to understand technologically mediated relations. In other words, it's the contract law that underlies this stuff that's coming up for revision, not the surface interpretations. The important matter now is not deliberating whether the letter of the law creates "consent" on this or that occasion, but whether the spirit of the law allows for consent even in principle, given societal standards of digital literacy and the complexity of modern digital interactions.

foxfluff 5y ago
> In an age where most lawyers and judges, like everyone, mindlessly click-through "agreements" and shrink-wrap EULAs .. That's an interesting problem. I'm a little disappointed that the route we've gone is having courts decide that this or that bit of EULA isn't binding, but people are still expected to read them and be somehow bound by them. It's kind of difficult for the common man to find out which parts of an EULA are or can be legally binding, so why should they ever be read? For a while now I've been thinking that EULAs should also be made simple and clear and understandable, kinda like they're forced companies to do now with consent dialogs. No walls of text, no small print, no legalese, and definitely no tons of obviously unenforceable but chilling terms (that the poor reader might think are enforceable). It does not feel right that people are "agreeing" to something they didn't read anyway (and which if they did, most people wouldn't really understand anyway), and they can only find out what their rights are after the fact.. so maybe we should just say that such agreements are not okay, stop it. It should be easy to understand exactly what you are agreeing to (or possibly we could just have the terms in law and stop this silly game altogether).
- trasz 5y ago
  Rather than making EULAs simple and clear, how about simply making them void? They don't serve any valid purpose.
  - foxfluff 5y ago
    For the consumer market I agree. It's not fair to force consumers to accept a one-sided unnegotiable contract. I think the silly interpretation of copyright law (that any transient copies made by your computer when you install or run a program constitutes copying and thus require the copyright holder's permission) should be undone. You shouldn't need a license to use a program any more than you need a license to listen to a music disk or read a book or watch a movie or painting. I think that interpretation of copyright law is fully based on a technical gotcha and not in line with the spirit of the law.
- Agentlien 5y ago
  For a while I tried to actually read EULAs because I wanted to know what I was agreeing to and felt which parts are overly generic gave a good indication of what a company might want to do without explicitly stating it. But it's just too much and too overwhelming and most of it is just completely cookie cutter legal babble which I can't waste my time with. I recently bought a video game to play for fun and when I first started it I was asked to sign off on a ridiculously long legal text followed by five(!) revised versions of it from various updates. What am I to do? Spend a few evenings reading and comparing those instead of playing the game I'd bought? Realize that I couldn't play the game I'd bought and ask for a refund? Or just scroll through, click to make it go away and enjoy my game without thinking more about it.

foxfluff 5y ago

> In an age where most lawyers and judges, like everyone, mindlessly click-through "agreements" and shrink-wrap EULAs .. That's an interesting problem. I'm a little disappointed that the route we've gone is having courts decide that this or that bit of EULA isn't binding, but people are still expected to read them and be somehow bound by them. It's kind of difficult for the common man to find out which parts of an EULA are or can be legally binding, so why should they ever be read? For a while now I've been thinking that EULAs should also be made simple and clear and understandable, kinda like they're forced companies to do now with consent dialogs. No walls of text, no small print, no legalese, and definitely no tons of obviously unenforceable but chilling terms (that the poor reader might think are enforceable). It does not feel right that people are "agreeing" to something they didn't read anyway (and which if they did, most people wouldn't really understand anyway), and they can only find out what their rights are after the fact.. so maybe we should just say that such agreements are not okay, stop it. It should be easy to understand exactly what you are agreeing to (or possibly we could just have the terms in law and stop this silly game altogether).

trasz 5y ago
Rather than making EULAs simple and clear, how about simply making them void? They don't serve any valid purpose.
- foxfluff 5y ago
  For the consumer market I agree. It's not fair to force consumers to accept a one-sided unnegotiable contract. I think the silly interpretation of copyright law (that any transient copies made by your computer when you install or run a program constitutes copying and thus require the copyright holder's permission) should be undone. You shouldn't need a license to use a program any more than you need a license to listen to a music disk or read a book or watch a movie or painting. I think that interpretation of copyright law is fully based on a technical gotcha and not in line with the spirit of the law.
Agentlien 5y ago
For a while I tried to actually read EULAs because I wanted to know what I was agreeing to and felt which parts are overly generic gave a good indication of what a company might want to do without explicitly stating it. But it's just too much and too overwhelming and most of it is just completely cookie cutter legal babble which I can't waste my time with. I recently bought a video game to play for fun and when I first started it I was asked to sign off on a ridiculously long legal text followed by five(!) revised versions of it from various updates. What am I to do? Spend a few evenings reading and comparing those instead of playing the game I'd bought? Realize that I couldn't play the game I'd bought and ask for a refund? Or just scroll through, click to make it go away and enjoy my game without thinking more about it.