Thursday, November 10, 2005

Sony DRM rootkit code (#22) EULA (#3) Sony DRM rootkit code (#22) EULA (#3)

Ray Nimmer has a new blog out: I first met Ray about 15 years ago at a Computer Law Association meeting. The joke was that he was constantly asked if he was "The Nimmer" (of "Nimmer on Copyrights" fame, originator of the definitive trestise on copyright law). His response was that he was "the Other Nimmer". Even then, he had already published a book on IP issues and was well known and respected in the computer law area.

In any case, in this new blog, he has an entry titled: "Shrink-wraps are enforceable contracts" in which he argues very strongly that shrinkwrap and clickwrap licenses, like the Sony EULA, are enforceable.


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Anonymous Anonymous said...

Actually, it appears to me that what Mr Nimmer says does imply that the Sony EULA is not enforceable -- "there must be an option and an opportunity to decline the entire deal."

Certainly you could refuse the EULA, and the Sony software would terminate. However, the last of Mr Nimmer's four requirements for assent is "The person must have a chance to say no and walk away from the deal, with a refund of what the person might have already paid."

In the case of the standard return policies of most stores, you do not have this option. While that is not under the control of Sony, Sony is however under an obligation to provide a refund mechanism as they are the ones requiring the EULA.

Mr Nimmer concludes: "Interestingly, these four things, which generally summarize or require more than the cases, are set out and required in UCITA, the governing law in Virginia and Maryland."


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