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CYBER CONTRACTS SPECIAL
END OF AGREEMENTS ON PAPER??
PLEASE READ THIS AGREEMENT CAREFULLY
END USER SOFTWARE LICENSE AGREEMENT
THIS IS A LICENSE AGREEMENT ("AGREEMENT") BETWEEN PLAYER, INC. ("PLAYER"), AND YOU ("LICENSEE" OR "YOU") FOR USE OF THE ACCOMPANYING SOFTWARE AND USER DOCUMENTATION (THE "SOFTWARE"). PLAYER IS WILLING TO GRANT YOU THE LICENSE TO USE THE SOFTWARE ACCORDING ONLY ON THE CONDITION THAT YOU ACCEPTS ALL TERMS IN THIS AGREEMENT.
BY CLICKING ON THE "ACCEPT" BUTTON BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY IT. IF YOU DO NOT AGREE TO ANY OF THE TERMS BELOW, PLAYER IS UNWILLING TO LICENSE THE SOFTWARE TO YOU, AND YOU SHOULD CLICK ON THE "DO NOT ACCEPT" BUTTON BELOW TO DISCONTINUE THE INSTALLATION PROCESS. IN SUCH CASE, ANY AMOUNTS ALREADY PAID BY YOU SHALL BE REFUNDED BY PLAYER OR THE RETAILER FROM WHICH YOU PURCHASED THE SOFTWARE SUBJECT TO THE APPLICABLE REFUND POLICY.
1. COPYRIGHT. The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. All title and copyrights in and to the Software and any printed materials accompanying the Software are owned by Player or its suppliers.
2. GRANT OF LICENSE. The Software is licensed and not sold to you and its use is subject to this Agreement. Player grants You a limited, personal, non-exclusive license to use the Software in the manner described in the user documentation. Player reserves all rights not expressly granted to You in this Agreement.
3. PERMITTED USES. You may install and use the Software on a single computer. You may make and maintain one copy of the Software for backup and archival purposes, provided that the original and copy of the Software are kept in your possession and you reproduce all copyright and other proprietary notices that are on the original copy of the Software. You may permanently transfer all your rights under this Agreement, provided you retain no copies, you transfer all of the Software and the recipient reads and accepts this Agreement.
4. DIGITAL RIGHTS MANAGAMENT. The Software may include digital rights management technologies provided by the distributor of your copy of the Software. This digital rights management technology may be used to collect personal information from you in order to activate a game in order to prevent unauthorized use.
5. RESTRICTIONS. You may not delete or obscure any copyright, trademark or other proprietary notice on the Software or accompanying printed materials. You may not decompile, modify, reverse engineer, disassemble or otherwise reproduce the Software. You may not copy, rent, lease, sublicense, distribute, publicly display the Software, create derivative works based on the Software or otherwise commercially exploit the Software. You may not electronically transmit the Software from one computer, console or other platform to another or over a network. You may not use any backup or archival copy of the Software for any purpose other than to replace the original copy in the event it’s destroyed or becomes defective.
6. GENERAL. This Agreement will be governed by the laws of the State of California in the United States of Antartica, without regard to or application of conflicts of law rules or principles. The Courts located in Santa Cobana County shall have sole jurisdiction over any disputes arising hereunder and the parties hereby submit to the personal jurisdiction of such courts. This Agreement is the complete and exclusive statement of the agreement between Player and You which supersedes any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of this Agreement. This Agreement shall not be modified except by a subsequently dated written amendment or exhibit signed by both parties by their duly authorized representatives.
Hi readers of LEX BORNEO, ever come across an agreement like that above when downloading software that you legally purchased. Did you read the Agreement, print or save it? Of course not because you didn’t have the time for such legal formalities. What is important is to click “I ACCEPT” and get on with PLUG AND PLAY.
But hey wait a minute… agreements and contracts are done on paper. They are written or printed. So where is the print or the words in writing. Does an agreement that you can see but you cannot touch and feel on paper qualify as an agreement in law? Of course it does. That’s stating the obvious isn’t it. Well the funny thing sometimes the law can be stranger than life……???
THE REALPLAYER CASE
FACTS AND CASE BACKGROUND: TO LITIGATE OR ARBITRATE
In this case filed in the United States District Court of Illlinois and registered as In Re RealNetworks, Inc., Privacy Litigation, the Plaintiffs were Michael Lieschke, Robert Jackson, Todd Simon and David Keel (collectively, the “Plaintiffs”), acting on behalf of a class of Illinois plaintiffs and individually, anf they brought suit against Defendant RealNetworks, Inc. (“RealNetworks”). Plaintiffs alleged trespass to property and privacy, claiming that RealNetworks’ software products secretly allowed RealNetworks to access and intercept users’ electronic communications and stored information without their knowledge or consent.
RealNetworks offered free basic versions of two products, RealPlayer and RealJukebox, for users to download from RealNetworks’ site on the World Wide Web. These products allowed users to see and hear audio and video available on the Internet and to download, record, and play music.
CLICK IF YOU ACCEPT
Before a user can install either of these software packages, they must accept the terms of RealNetworks’ License Agreement, which appeared on the user’s screen.
Paragraph 10 of the Agreement said:
This License Agreement shall be governed by the laws of the State of Washington, without regard to conflicts of law provisions, and you hereby consent to the exclusive jurisdiction of the state and federal courts sitting in the State of Washington. Any and all unresolved disputes arising under this License Agreement shall be submitted to arbitration in the State of Washington.
RealNetworks relies on this clause to say that all disputes must be resolved by arbitration and not a court of law. Plaintiffs, on the other hand, argues that this clause does not operate to require arbitration since according to the Plaintiff, the License Agreement does not constitute a “writing” because it is not printed on paper but it is in electronic or digital form.
PLAINTIFFS: IF ITS NOT IN WRITING ITS NOT AN AGREEMENT
The judge of the dispute, Justice Kocoras said that although US national policy encourages arbitration of disputes, submission to arbitration is consensual, not coercive. Thus, a court cannot force a party to arbitrate unless that party has entered into a contractual agreement to do so. Plaintiffs claimed that the License Agreement, including the arbitration provision, does not constitute a writing as required by the Federal Arbitration Act (the “FAA”) in order to be enforced. They said that the License Agreement is an electronic agreement, and electronic agreements do not satisfy the “written” agreement provisions of the FAA. Even if some electronic agreements are acceptable, RealNetworks’ electronic agreement is not because a user cannot print or save it. RealNetworks did not dispute that the arbitration provision must be be written in order to be enforceable. Rather, RealNetworks argued that its License Agreement, constituted a writing and that it may be printed and saved.
Both the Plaintiffs and RealNetworks agreed that the US law making body of Congress when they created the FAA intended the FAA to apply only to written contracts because the terms in the law must be given their plain meaning and do not explicitly allow for an “electronic” agreement.
IS THERE ‘ELECTRONIC’ WRITING OR WRITTEN?
Plaintiffs reasoned that an electronic communication cannot satisfy the writing requirement, but only a written one can. However according to Justice Kocoras, this only begs the question of what is a written agreement? Although contract terms must be given their plain and ordinary meaning, the Judge was unconvinced that the plain and ordinary meaning of “writing” and “written’ necessarily cannot include any electronic writings.
WHEN IN DOUBT, CONSULT THE DICTIONARY
Courts frequently looked to dictionaries in order to determine the plain meaning of words and particularly to examine how a word was defined at the time the statute was drafted and enacted. The FAA was enacted in 1925. At that time, Webster’s dictionary defined ‘writing’ as:
1. The act or art of forming letters or characters on paper, wood, stone or other material for the purpose of recording the ideas which the characters and words express, or of communicating them to others by visible signs.
2. Anything written or printed; anything expressed in characters or letters. See WEBSTER’S DICTIONARY (1913)
Webster’s defined “written” as the participle of write, which it defined as:
a)To set down, as legible characters;
b) to form the conveyance of meaning;
c) to inscribe on any material by a suitable instrument;
d) as, to write the characters called letters;
e) to write figures.
A legal dictionary at that time provided that “The word ‘written,’ used in a statute, may include printing and any other mode of representing words and letters.” See Pope, Benjamin, W., Legal Definitions, Callaghan and Co. (1920).
THE DEFINITION WAS INCLUSIVE AND NOT EXCLUSIVE
Thus, although the definition of a writing included a traditional paper document, it did not exclude representations of language on other media. According to the Judge because electronic communications can be letters or characters formed on the screen to record or communicate ideas by visible signs and can be legible characters that represent words and letters as well as form the conveyance of meaning, it would seem that the plain meaning of the word “written” does not exclude all electronic communications. That being said, the Court did not find that all electronic communications may be considered “written”. Rather, the Court examined the contract at issue in this action and finds that its easy printable and storable nature is sufficient to render it “written”.
SELECT ALL , COPY AND PASTE –
THE MELODRAMA OF COMPUTER ILLITERACY
The Court rejected the Plaintiffs’ contention that the License Agreement is not printable and storable. Plaintiffs asserted that RealNetworks affirmatively inhibits users from printing or storing the License Agreement by failing to provide a conspicuous “print” or “save” button on the pop-up License Agreement window. However, Plaintiffs are incorrect in their assertions because the License Agreement may easily be printed and is automatically stored on the user’s hard drive despite the absence of the “save” and “print” buttons. In fact, there exists more than one way to print the License Agreement. First, before the user has even accepted the License Agreement, the user can right click his mouse over the text of License Agreement, select all, and copy and paste it onto any word processing program. Since using the right click function is too specialized for Intervenor, he even has the option to simply click and drag the cursor over the text of the License Agreement in order to highlight it and then copy and paste the License Agreement onto any word processing program. Moreover, users had yet another way of printing the License Agreement. After a user accepts the License Agreement, it is automatically downloaded and saved to the user’s hard drive. The user then can click on the License Agreement, listed separately as either “RealJukeBox License Agreement” or “RealPlayer License Agreement” depending on the product, and easily print out either agreement from the file pull down menu. Thus, Plaintiffs’ assertion that the License Agreement cannot be saved, retrieved, or printed is incorrect. Moreover, once installed, the License Agreement is not hidden, as Plaintiffs claim, but is listed as prominent and separate icons under “Real” on the “Start” menu. Although any computer use can be intimidating, the process of printing the License Agreement is no more difficult or esoteric than many other basic computer functions, and the melodrama and over exaggeration with which Plaintiffs describes the alleged impossibility of printing the License Agreement is disingenuous.
BUT DID THE LAW UNDERSTAND VIRTUAL AGREEMENTS IN 1925?
Finally, Plaintiffs pointed to Congress’s present day discussions about electronic communication in arguing that the FAA’s writing requirement cannot be satisfied by an electronic communication. However, the Judge disagreed and said that the modern congressional discussion the Plaintiffs pointed to did not serve as evidence of Congress’ intent when it enacted the FAA in 1925. That Congress may now, with some hindsight on the advance of electronic communication, explicitly provide for written and electronic agreements in new legislation, does not mean that Congress in 1925 excluded electronic communications from the category of written communication by not explicitly providing for it. Modern Congress discussions indicate that it was, in fact, the “uncertain” legal effect of an electronic record or an electronic signature that prompted Congress to consider the “Electronic Signatures in Global and National Commerce Act”, which Plaintiffs cites. Moreover, it seems that the License Agreement would, nevertheless, constitute a writing even for purposes of Congress’ discussions today because the License Agreement may be printed and stored.
Thus, the License Agreement including the arbitration provision, is a written agreement. The Judge went on to find for the Defendant, holding that the End User License Agreement (EULA) effectively barred a suit in court because of the arbitration clause.
LEX BORNEO POSER: The American Judge who decided this case said that not all electronic agreements qualified as agreements in the legal sense. They required the further characteristics of being able to be printed and saved. Do you agree that these characteristics are material?
