EULAs

[M. A. T Pai]

Bruce Dodson wrote:-
  >Hey, just because you didn't have to click on it doesn't make it any
less of
  >an end user license agreement!


Students in law school are usually given an analogy, which IMHO applies
here.

When you enter a public transport (eg a bus), or order food from a
restaurant,
you impliedly undertake that you will pay when the conductor comes to
you, or
when the waiter brings the bill. If you do not pay up, even if you have not
entered into a multi-clause, sealed and witnessed contract with the
transport
company or the restaurant, they will can still hold you liable.  In
other words,
mere usage *implies* a consent, and will be enforced by courts.

By the same logic, mere use of software amounts to implied assent to the
terms
set by the copy right older.  In other words, going by general
principles, of
law of contracts, mere use of a software can be taken as implied assent
to the
terms of licensing spelt out by its owner.

But, the situation may be different when an element of consumer
protection also
comes in, and the courts will not draw such inferences in case of
"disclaimer
clauses".  To enforce disclaimer clauses, or any other clause limiting the
liability of what the law of consumer protection calls the manufacturer/
supplier/ producer/ seller, there should be positive proof that the
user/consumer knew of the disclaimer before he started using the product.
Therefore, a "click wrap" is good only in case of disclaimers it
contains, and
all other conditions / terms of the licence will be taken as having been
assented to by the  user.

Regards,
Mahesh T Pai
paivakil at yahoo.co.in
http://in.geocities.com/paivakil




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