Tuesday, December 19, 2006

shrink-wrap licenses

Xrlq is complaining about shrink-wrap licenses (among many other things). I have three problems with shrink-wrap licenses that make me think that they are not reasonable and make me hope that they are not legally enforceable. The first one is just an analogy (as I described in Xrlq's) comments: suppose a lawnmower manufacturer put a tag on the pull chord that says, "By pulling this chord you agree to only buy gas from us." Would that be enforceable? I would hope not. After all, by the time I'm getting ready to pull the chord it isn't their lawnmower any more; it's mine because I bought it. How can they put conditions on my use of my own property? Software should be the same. Sure, they can tell me that I'm not allowed to push the Install button until I agree to their terms, but I already bought the software and it's running on my own computer. How can they restrict the way I use it?

My second objection has to do with speech acts. A speech act is just the act you undertake when you say something. Speech acts include things like inform, ask a question, promise, etc. They have to do with what you say and what you intended when you said it. For example, suppose that I say to someone, "I'm going to the drug store." The speech act I am performing is an act of informing only if I meet conditions like the following (I don't remember the standard analysis so I'm inventing):
1. I said something that was a statement of fact, P to person H.
2. I intended for P to be true.
3. I intended by my statement of P that H understand that P is true.
4. I intended by my statement of P that H understand that I intended to communicate to H that P is true.
This is probably more complicated than you expected, but if you leave out any of the conditions, then I can come up with an example that makes this a case of something else besides informing.

Now, how does this apply to shrink-wrap licenses? The manufacturer of the software wants you, by pushing the Install button, to undertake a speech act --the act of agreeing to terms. But in order to do that, you have to have the proper intentions. The act of agreeing to terms involves conditions like the following:
1. I make an affirmation P to H referring to a set of terms T.
2. I intend for H to understand that P refers to T.
3. I intend for H to understand by P that I intend to abide by T.
Notice that I don't include
4'. I intend to abide by T.
You can agree to terms while having no intention to abide by them. The core point in an act of agreeing to terms is what you intend for your hearer to understand. If you intend for your hearer to believe that you have agreed to the terms, then you have agreed to them.

When I push the button to install my software, am I fulfilling any speech act? I don't see how this is possible, given that there is no H. Conditions 2 and 3 cannot possibly be fulfilled because I don't intend by pushing that button to communicate anything to anyone; I only intend to install my software. There is no one who can come before a judge and say, "Dave communicated to me that he agreed to abide by these terms." And in fact, I did not, even in my own thoughts, agree to any terms. How can that be a contract?

My final objection sounds legalistic, but I really intend it philosophically; that is, it is about abstract principles of human interaction rather than about legislated laws. This objection has to do with agency. Basically, the computer manufacturer is attempting to co-opt my computer to act as their agent in making a contract with me. There are two problems with this. First, it isn't clear to me that a device can act as an agent. Second (and more importantly), I did not give them permission to use my computer in this way. If my computer is actually acting as their agent, then they have appropriated for themselves the use of my property for their own purposes without my permission. That sounds a lot like theft. And in any case, I'm certainly entitled to put conditions on this service, so before they can go to court, using the testimony of my computer as their agent, I should be able to set terms on their use of my property and one of those terms would be that they can't use it as an agent against me in court.

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