product liability (was 'we should all be uncomfortable with the extent to which luck..')

Wed Jul 25 15:21:33 UTC 2001

David Charlap wrote:
> 
> William Allen Simpson wrote:
> >
> > Also, you may have noticed that shrink-wrap licenses are valid in
> > only two places: Washington (state) and Virginia.  This would be a
> > Federal class action.
> 
> Didn't the Digital Millennium Copyright Act make shrink-wrap licenses
> valid nation-wide?
> 
No.  

You are thinking of last year's electronic signatures act -- an act that 
has no signatures, merely "sound, symbol, or process".

After much debate, including contact with staff of the Senator that 
introduced the bill (now secretary of energy after we kicked him out of 
the senate), I have written assurances that normal contract law will 
always supercede, and nobody can be bound to anything that they have not 
yet seen and affirmatively acknowledged.

And I expect the companies pushing the law will argue otherwise, and the 
courts will decide....  

We had a recent success on web site terms of use.  The result is, you 
have to hide the entire site behind an agreement page, and securely 
prevent anyone from accessing the material without going through the agreement page.

I'll point to another "success", although not for an intangible good.
My 3 year old powerbook came with a power brick.  The warranty has 
long since expired.  The "shrinkwrap" agreement says they are not 
liable for consequential damages.

Yet, Apple is sending free (no cost in any way) replacements!  

Seems that 6 out of several million got too hot and caused a fire.  
(They do get hot!)

Now, is that responsible corporate citizenship?  Or enlightened self 
interest?  Or fear of bigger (punative) penalties?

Whatever it is, we need more of it....

-- 
William Allen Simpson
    Key fingerprint =  17 40 5E 67 15 6F 31 26  DD 0D B9 9B 6A 15 2C 32