Ross's TCPA paper

[pasward at shoshin.uwaterloo.ca]

I'm slightly confused about this.  My understanding of contract law is
that five things are required to form a valid contract: offer and
acceptance, mutual intent, consideration, capacity, and lawful
intent.  It seems to me that a click-through agreement is likely to
fail on at least one, and possibly two of these requirements.  First,
it is doubtful that there is mutual intent.  The average user doesn't
even read the agreement, so there is hardly mutual intent.  However,
even if I accept mutual intent, it would be easy to argue that there
is no capacity.  I have four children under the age of seven.  None of
them have the legal capacity to form a contract.  Three of them have
the physical capacity to click a button.  A corporation would
therefore have to demonstrate that I and not they clicked on the
agreement for the contract to be valid.

As a side note, it seems that a corporation would actually have to
demonstrate that I had seen and agreed to the thing and clicked
acceptance.  Prior to that point, I could reverse engineer, since
there is no statement that I cannot reverse engineer agreed to.  So
what would happen if I reverse engineered the installation so that the
agreement that was display stated that I could do what I liked with
the software?  Ok, so there would be no mutual intent, but on the
other hand, there would also be no agreement on the click-through
agreement either.

Paul

Peter D. Junger writes:
 > Pete Chown writes:
 > 
 > : Anonymous wrote:
 > : 
 > : > Furthermore, inherent to the TCPA concept is that the chip can in
 > : > effect be turned off.  No one proposes to forbid you from booting a
 > : > non-compliant OS or including non-compliant drivers.
 > : 
 > : Good point.  At least I hope they don't. :-)
 > : 
 > : > There is not even social opprobrium; look at how eager
 > : > everyone was to look the other way on the question of whether the DeCSS
 > : > reverse engineering violated the click-through agreement.
 > : 
 > : Perhaps it did, but the licence agreement was unenforceable.  It's
 > : clearly reverse engineering for interoperability (between Linux and DVD
 > : players) so the legal exemption applies.  You can't escape the exemption
 > : by contract.  Now, you might say that morally he should obey the
 > : agreement he made.  My view is that there is a reason why this type of
 > : contract is unenforceable; you might as well take advantage of the
 > : exemption.
 > 
 > That isn't the reason why a click-through agreement isn't 
 > enforceable---the agreement could, were it enforceable, validlly
 > forbid reverse engineering for any reason and that clause would
 > in most cases be upheld.  But, unless you buy your software from
 > the copyright owner, you own your copy of the software and
 > clicking on a so called agreement with the copyright owner
 > that you won't do certain things with your software is---or,
 > at least should be---as unenforceable as promise to your doctor
 > that you won't smoke another cigarette.  The important point
 > is not, however, that click-through agreements are probably
 > unenforceable; the important point is that people---at least
 > those people who think that they own their own computers and
 > the software copies that they have purchased---generally
 > believe that they should be unenforceable.  (And in the
 > actual case involving Linux and DVD players there was no
 > agreement not to circumvent the technological control measures
 > in DVD's; the case was based on the theory that the circumvention
 > violated the Digital Millenium Copyright Act.)
 >  
 > : The prosecution was on some nonsense charge that amounted to him
 > : burgling his own house.  A statute that was meant to penalise computer
 > : break-ins was used against someone who owned the computer that he broke
 > : into.
 > : 
 > : > The TCPA allows you to do something that you can't do today: run your
 > : > system in a way which convinces the other guy that you will honor your
 > : > promises, that you will guard his content as he requires in exchange for
 > : > his providing it to you.
 > : 
 > : Right, but it has an odd effect too.  No legal system gives people
 > : complete freedom to contract.  Suppose you really, really want to exempt
 > : a shop from liability if your new toaster explodes.  You can't do it;
 > : the legal system does not give you the freedom to contract in that way.
 > : 
 > : DRM, however, gives people complete freedom to make contracts about how
 > : they will deal with digital content.  Under EU single market rules, a
 > : contract term to the effect that you could pass on your content to
 > : someone in the UK but not the rest of the EU is unenforceable.  No
 > : problem for DRM though...
 > 
 > I don't think that one should confuse contract limitations, or 
 > limitations on enforceable contract limitations, with technological
 > limitations.  There is nothing, for example, in any legal system that
 > forbids one from violating the law of gravity.
 > 
 > One of the many problems with the use of the Digital Millenium 
 > Copyright Act to enforce the technological control measures
 > in DVD's was that it was based on the rather weird theory
 > that it should be illegal to do something that someone
 > else tried, but failed, to make technologically impossible
 > to do.
 > 
 > (Thus I am rather doubtful that Lessig's idea the everything is
 > code is useful for analytical, rather than rhetorical, purposes.)
 > 
 > : I think lawyers will hate this.
 > 
 > I don't see why we should.  We don't hate the law of gravity
 > or the law of large numbers.
 > 
 > --
 > Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
 >  EMAIL: junger at samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu   
 >         NOTE: junger at pdj2-ra.f-remote.cwru.edu no longer exists
 > 
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-- 
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Paul A.S. Ward, Assistant Professor  Email: pasward at shoshin.uwaterloo.ca
University of Waterloo                      pasward at computer.org
Department of Computer Engineering   Tel: +1 (519) 888-4567 ext.3127
Waterloo, Ontario                    Fax: +1 (519) 746-3077
Canada N2L 3G1                       URL: http://shoshin.uwaterloo.ca/~pasward

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