Re: "Thumbnails" of scanned pages from c

From: John Kasdan <kasdan[_at_]cs.columbia.edu>
Date: Thu, 26 Oct 95 15:31:03 EDT

Vance R. Koven wrote:
>
> On the other hand, any kind of shrinkwrap (or, shall we coin a phrase
> for contract terms posted in the store, "gilt-framed") licenses are pure
> contracts of adhesion and should be taken no more seriously than any
> other such wishful thinking on their proponents' part, especially since

Really? It was my belief that most non-software "contacts of adhesion" are upheld by the courts and that only some very specific terms, such as limitations of liability for personal injuries, are ever struck down.

> the licensor in such situations is not even available at the point of
> sale to negotiate the terms.

I really don't understand this argument at all. The last time I went to Le Cirque, I didn't really find that I had much of an ability to bargain with Ciro over the price of my bass. And Barneys seems remarkably unwilling to lower the price of their suits because I find them to be too pricey (except for one week in August, but that's another story.) So does that mean I have the right to take the product, not pay my bill when it comes, and then defend on the grounds that I was presented with a "contract of adhesion?"

I don't think so. I think I have the right to decide not to make the purchase. And I don't see why price should be the only contract term which is acceptable on a "take it or leave it" basis. As a general rule, voluntary transaction are, as I said earlier in this thread, wealth increasing. Assuming, as I did, that the terms of the proposed exchange are fully disclosed, I can see no reason after the fact to reform the contract to the disadvantage of the seller.

If there was any reason to disallow so-called contracts of adhesion (which, by the way, include virtually all consumer transactions,) it would have to be something like antitrust. And (to return this to the topic of the List,) software, like most areas in which copyright is important, despite the presence of some very big players, does not seem to be a monopolized field. At least the Justice Department's efforts in that line have failed so far to produce much smoke, let alone any fire.

> There was an article in the Harvard Law Review a few years ago that,
> unsurprisingly, took the position that contracts of adhesion should be
> treated as presumptively invalid unless the imposer proved equal
> bargaining power with the particular buyer. I was skeptical of the

Does HLR really deserve this kind of slur? I, for one, am _very_ surprised.

> argument at the time, but am beginning to think that such demotic
> principles need to be applied to keep the Ferengi from seizing control
> of the legal system.

"Comes the revolution and you'll get Windows-95 for free!"
"But I don't like Windows-95!"
"Comes the revolution and you'll like Windows-95."

John Kasdan;     http://www.columbia.edu/~law9023/

<kasdan[_at_]cs.columbia.edu> Received on Thu Oct 26 1995 - 19:34:43 GMT