Shrinkwrap Purgatory

High responsibility and low power or control can lead to imabalance and thus disease, runs the accepted wisdom; so how do we ameliorate the current state of shrinkwrap purgatory?

In law school we learned about 'contracts of adhesion' where one party has all the bargaining power. But perhaps those old cases come from the old days, days of handshakes from gentlemen in bowler hats carrying suitcases of print from insurance companies. These days a click can be perilous.

In Shrinkwrap Licenses: An Epidemic Of Lawsuits Waiting To Happen, Cory Doctorow warns that 'Anybody who bothered to read a clickwrap or shrinkwrap agreement would never install any software, click on any link on the Web, open an account with anyone, or even shop at many retail stores. The terms of these agreements are onerous and ridiculous. We go along with the gag because we think nobody's paying any attention. But somebody's going to start paying attention soon, and when they do, the results will be disastrous for the electronic economy.'

It's hard to say whether he thinks the repurcussions will come from the plaintiff's side or the defendant's. It's hard to imagine people will stop clicking merely because some far-away lawsuit tells them some unfortunate person has been entrapped by a click-wrapped clause.

Nonetheless, from a public policy perspective, Doctorow ably describes the citizen's dilemma: 'It's bad enough when this stuff comes to us through deliberate malice, but it seems that bogus agreements can spread almost without human intervention. Google any obnoxious term or phrase from a EULA, and you'll find that the same phrase appears in a dozens -- perhaps thousands -- of EULAs around the Internet. Like snippets of DNA being passed from one virus to another as they infect the world's corporations in a pandemic of idiocy, terms of service are semi-autonomous entities.'

Doctorow's got a point. Though as someone trained in law who loves to read fine print, I find this assertion amusing: "In the attorneys' defense, EULAese is so mind-numbingly boring that you can hardly blame them." Never be so "bored" that you stop reading.

Caveat emptor.

He does bring a nice irony with his (unenforceable) conclusion:

'Cory says: "READ CAREFULLY. By reading this article, you agree, on behalf of your employer, to release me from all obligations and waivers arising from any and all NON-NEGOTIATED agreements, licenses, terms-of-service, shrinkwrap, clickwrap, browsewrap, confidentiality, non-disclosure, non-compete and acceptable use policies ("BOGUS AGREEMENTS") that I have entered into with your employer, its partners, licensors, agents and assigns, in perpetuity, without prejudice to my ongoing rights and privileges. You further represent that you have the authority to release me from any BOGUS AGREEMENTS on behalf of your employer."'

Sure. By reading this blog, you agree to give a million dollars to my favorite charity.

We do need to get back to the old contract maxim of offer, acceptance, and consideration, however.
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Law Offices of Michael H. Cohen offers general corporate legal services, litigation consultation, and expertise in health law with a unique focus on alternative, complementary, and integrative medical therapies.

Michael H. Cohen is Principal in Law Offices of Michael H. Cohen and also President of the Institute for Integrative and Energy Medicine (also known as the Institute for Health, Ethics, Law, Policy & Society), a forum for exploration of legal, regulatory, ethical, and health policy issues involved in the judicious integration of complementary and alternative medical therapies (such as acupuncture and traditional oriental medicine, chiropractic, massage therapy, herbal medicine) and conventional clinical care. The most recent published book by Michael H. Cohen on health care law, regulation, ethics and policy pertaining to complementary, alternative and integrative medicine and related fields is Healing at the Borderland of Medicine and Religion. This is the fourth book in a series, following Complementary and Alternative Medicine: Legal Boundaries and Regulatory Perspectives (1998), Beyond Complementary Medicine: Legal and Ethical Perspectives on Health Care and Human Evolution (2000), and Future Medicine: Ethical Dilemmas, Regulatory Challenges, and Therapeutic Pathways to Health Care and Healing in Human Transformation (2003).

Health care and corporate lawyer Michael H. Cohen has also been admitted to the Bar of England and Wales as a Solicitor (non-practicing), adding to Bar membership in four U.S. states.
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