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The Media

Shrinkwrapped Books 406

NortWind writes "I just saw this in the InfoWorld paper, in the "The Gripe Line" by Ed Foster. It describes how a "...book arrived wrapped in plastic with a shrinkwrap license on the front". Just when you thought it couldn't get any worse..." I wrote an essay about this a year or two ago.
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Shrinkwrapped Books

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  • Why can't the government just look at what is going on and change things? And when I say change things, I don't mean adding new laws - REPEAL OLD ONES, AND STOP MAKING NEW ONES!!

    EULA books. EULA software. Companies being forced to sell PCs with Operating Systems. Giving private enterprises the rights to hack individuals that they suspect are pirating songs.

    STOP THE INSANITY!!! STOP IT!!!
    • by Skyshadow ( 508 ) on Wednesday August 14, 2002 @02:11PM (#4071380) Homepage
      Might I recommend a course of action?

      http://www.eff.org
      http://aclu.org/

      Just kicking an issue around a message board never solved anything. If you feel strongly about it, dollars really do speak louder than words -- you really don't need to donate a lot of money.

  • by wackybrit ( 321117 ) on Wednesday August 14, 2002 @01:48PM (#4071228) Homepage Journal
    "...book arrived wrapped in plastic with a shrinkwrap license on the front"

    That's how most mail-order porn mags arrive. It means the seller can accept returns that are still wrapped and be confident the pages aren't stained with jizz. Retailers of regular fiction don't suffer from this problem.
  • by elhondo ( 545224 ) on Wednesday August 14, 2002 @01:49PM (#4071234)
    You mean Harlan Ellison has a new book out?
  • Terms (Score:5, Funny)

    by ThereIsNoSporkNeo ( 587688 ) on Wednesday August 14, 2002 @01:50PM (#4071243)
    By opening this shrink-wrap you agree to the terms and conditions of the agreement.

    To see the agreement, open the book to page 1.

    For technical assistance call 724-987-1192, however, by calling this number you release us from any obligation of helping you.

    Thank you and have a good day.
  • by GGardner ( 97375 ) on Wednesday August 14, 2002 @01:52PM (#4071253)
    Some Sun Java books, notably, the Java Language Specification, are even worse -- the license isn't in the shrinkwrap, it's printed in small print on an early page. I bet most people haven't even noticed it -- at least you notice a shrinkwrap license for a microsecond before it gets tossed.
    • by chris_mahan ( 256577 ) <chris.mahan@gmail.com> on Wednesday August 14, 2002 @01:55PM (#4071275) Homepage
      There is no law that says that you have to read "every single page" of a book you buy. You just say: I skipped those pages (I had a headache or something) They're going to ask why you skipped them, and you'll say: "It looked boring" to which there is of course no reply, because that would be the go-awful truth.
    • I don't see how that "license" could possibly hold up in court. You bought a copyrighted work, you didn't agree to a "license" or "contract".

      Nevertheless, it shows bad faith on the part of Sun when it comes to promoting Java as an "open" language standard. In reality, Sun appears to be worse than Microsoft--at least Microsoft put parts of C# through ECMA, resulting in the kinds of open documents and guarantees that standards go with (not perfect, but a whole lot better than what Sun is doing).

    • Then it's not a license. It's just fantasy literature about the kind of world that Sun wishes they were in.
  • Trash it (Score:5, Informative)

    by ch-chuck ( 9622 ) on Wednesday August 14, 2002 @01:53PM (#4071263) Homepage
    If the license agreement was to be taken seriously, he either had to go to the trouble of trying to ship the book back or he had to become an Omnicare customer somehow.

    I'd just trash it and forget it. It's illegal to send unsolicited items and then try to collect for it - just because they slap a boilerplate on something that arrives unsolicited in your mail you can still just treat it like any bulk business mail, crapcan it. All they are claiming ownership rights to is the contents. If you want to get in a moral quandrary over it, or become play the OmniCare game that's fine too.

    • by coyote-san ( 38515 ) on Wednesday August 14, 2002 @02:05PM (#4071351)
      It is perfectly legal for somebody to send you something with the suggestion that you return money in exchange. In fact, that's protected by the First Amendment, which is why it's so hard to make some companies to take you off their mailing list.

      But if they try to collect money from you in exchange for the goods (or demand you send it back at your expense) by claiming that a contract exists, that's unenforceable. There were some abusive practices in the 60s, and now this practice is explicitly named unenforceable.

      Of course, back then I think the problem was charities counting on guilt as much as anything else. Now it's outright scam artists sending unsolicited toner, fax supplies, etc., with overpriced POs. A tightly run company will have a single vendor and can tell them to shove off, but many companies will automatically pay low-value POs for office supplies.
      • by Tony Hoyle ( 11698 ) <tmh@nodomain.org> on Wednesday August 14, 2002 @06:28PM (#4072980) Homepage
        Charities still do this every christmas - they send a bunch of cards with a letter that says 'if you keep these you owe us $10 otherwise send them back at your expense'. To which I respond 'bollocks, it's unsolicited mail & I have no sympathy for charities that try to scam me', then use the free cards to send to people.
    • Even if he wanted to keep the book, as a non-Omnicare customer the license prohibited him from doing so. And since Omnicare claimed to retain ownership of his copy, he couldn't destroy it either. If the license agreement was to be taken seriously, he either had to go to the trouble of trying to ship the book back or he had to become an Omnicare customer somehow.

      There is a third option: Put the book on your bookshelf, and send a monthly bill for storage. If they don't pay, then turn the bill over to bill collectors.

    • Re:Trash it (Score:5, Informative)

      by GeorgeNorton ( 548252 ) on Wednesday August 14, 2002 @03:06PM (#4071807)
      In the UK it is illegal under The Unsolicited Goods and Services Act 1971 :

      "UNSOLICITED GOODS AND SERVICES ACT
      The Unsolicited Goods and Services Act 1971 is designed to prevent traders charging for goods you have not ordered. If you receive something unsolicited, this law states that you are under no obligation to return it. All you need do is keep it for six months or just one month if you contact the supplier. If a trader demands payment for unsolicited goods, he is guilty of a criminal offence." - BBC [bbc.co.uk]
    • I'd just trash it and forget it. It's illegal to send unsolicited items and then try to collect for it - just because they slap a boilerplate on something that arrives unsolicited in your mail you can still just treat it like any bulk business mail, crapcan it.

      The law in the USA goes even further (unless the last fifteen years of anti-consumer legislation has repealed it, I admit I don't keep current on all the latest consumer news): if someone sends you an item in the mail unsolicited it belongs to you.[1] Not only can they not tack on restrictions a la this EULA nonsense, they can't even demand you return it.

      It is yours, to keep, to shitcan, to donate to a public library (if it is a book), in short, to do with whatever you want.

      [1]There are obvious exceptions, such as when it is addressed to someone else and mailed to your address by accident. But, in cases where it is addressed to "Current Occupant", your name, or no name at all, and your address, the item in question is a non-refundable gift to you, with no legal obligation attached whatsoever.
  • by Anonymous Coward on Wednesday August 14, 2002 @01:54PM (#4071265)
    Anything that is mailed unsolicited to a person belongs to that person. Period. The postal code is extremely clear on this point.

    There used to be a lot of scams where companies would send products to people along with a bill, figuring that enough people would pay to make it worth it. For one thing, the company did not provide return postage, so any return would be at the customer's expense.

    Each and every one of those doctors now owns the book that was sent to them. I suggest they throw away the shrinkwrap, and use them for doorstops.
    • Found the listing (Score:3, Informative)

      by Anonymous Coward
      It is Title 39, United States Code, Section 3009:

      http://www.usps.com/websites/depart/inspect/merc h. htm
    • Misdirected mail (Score:3, Informative)

      by coyote-san ( 38515 )
      It's not absolute - you don't get to keep misdelivered mail. (E.g., that guy who got a prototype X-box a while back.) That includes things like the mail going into the wrong box, being sent to the wrong "J Smith", etc.

      But in these cases the sender has to cover the cost of pickup and re-delivery.

    • Awhile back a roommate of mine started to get TV Guide in the mail, though he claimed he never ordered it. So he felt completely right in keeping it since it was unsoliciated. Well, after so much time (I forget how long), he started to get bills for it, and he just threw them out since he was "right".

      Well, after so long they threatened to turn his account over to a collection agency, and he finally broke down and called them and told them he never ordered TV Guide and challenged them to prove that he did. They responded by telling him when he signed up for such-and-such contest (he put his address in a million forms on the web, trying to get free stuff) he agreed to a subscription of TV Guide. He then sheepishly wrote them a check and canceled his subscription.

      Just thought I'd share a funny story.
  • I think thta in this particular instance there is some conflict with the postal laws and the shrink wrap license. Unsolicited mail sent to a person is considered a gift and as such is the property of the recipient. If you own the book, wraper, paper, etc. I wonder how it could be argued that you are subject to any shrink wrap license terms? Just because the paperwork claims that the book is owned by someone else does not make it so.
  • Civil disobedience (Score:2, Insightful)

    by dennisr ( 17484 )
    Well if this comes to pass I won't agree and I will still share my books. In my opinion, all laws need to be examined which cross a persons moral or ethical boundaries - then the person decides to follow the law or not. I respect software license but I wouldn't respect this.
    • In my opinion, all laws need to be examined which cross a persons moral or ethical boundaries - then the person decides to follow the law or not.

      That's correct, but you have to be willing to suffer the legal consequences of your disobedience, be it going to jail or whatever. At least, according to the champions of civil disobedience (MLK, Ghandi, etc).

      Of course, when the Book Police start roaming the streets looking for license violations, then it's time to worry. Until then your chances of facing any punishment are pretty much nil.
  • by cant_get_a_good_nick ( 172131 ) on Wednesday August 14, 2002 @01:57PM (#4071290)
    Books for classes have been doing this for years. Some have shrinkwrap licenses, though most have software that generally gets unused in the class, but is just there to make resale of the book harder. It's starting a mini-cottage industry of small booksellers that don't care about the license and will buy and sell the used book no matter what, as opposed to the large campus store that needs to comply with the bookseller's corporate "licensing" terms.
    • "It's starting a mini-cottage industry of small booksellers that don't care about the license and will buy and sell the used book no matter what, as opposed to the large campus store that needs to comply with the bookseller's corporate "licensing" terms."

      I have tried dealing with these guys. They only gave me about ~10% of what I paid for the new book. I can easily get up to 90% of what I paid or even more that 100% if I bought the book used when you sell directly to other students.

      I think that what's described in your post is the natural action of the market. The problem is the governments are 'stepping in' and are being paid (bribed) by the big companies to make stupid laws to prop up the corrupt business model. This seems to be happening in industries for music, movies, and now books. It makes me sick.

  • by Lumpish Scholar ( 17107 ) on Wednesday August 14, 2002 @01:57PM (#4071291) Homepage Journal
    Shrinkwrapped licenses for books are clearly a violation of the doctrine of first sale (you do not own the rights to distribute the content of a book, but you completely own your copy of the the physical book, and may distribute that any way you please).

    Each new insult is also one more bit of evidence that fair use is threatened. If this goes on -- and if we keep writing Congress, etc., every time it happens -- at some point, maybe things will be so visibly out of hand that there'll be serious public pressure to swing the pendulum back.

    It won't happen by itself, but I cling to a shred of hope, no matter how thin. (Giving into despair doesn't help; think of hope as a modified Pascal's Wager.)
  • Bulshit license. (Score:5, Informative)

    by ivan256 ( 17499 ) on Wednesday August 14, 2002 @01:58PM (#4071294)
    The book came unsolicited in the mail. The only rights the person who sent it may have are what is afforded by standard copyright. The physical object, the book, belongs to the recipient to use in a fair manner consistant with the local copyright laws no matter what the meaningless piece of paper says. They cannot give themselves the right to take the book away at a later date. The stuff about not being able to share the information with anybody is crap too.

    Basically this is an article about a publisher being stupid and wasting paper; probably not nearly as much paper as the company that publishes "Internet Explorer for Dummies," so if you want to harrass somebody, you'd be better off harassing them.
    • by Tony ( 765 )
      It's not an article about a publisher being stupid and wasting paper; it's about the glacial creeping of an intellectual property mindset that is slowly eroding our rights.

      In society, things change slowly. Early in any major change, there are harbingers; this is one. Years ago we would never have given serious thought to shrink-wrap agreements in software, since they did not hold any real legal weight; now, because of UCITA, they do have legal backing in some states.

      Just because it seems ridiculous now doesn't mean it will remain ridiculous. Obvously, *some*one is taking it seriously enough to attempt it. Our only hope it to nip this in the bud, and maybe roll back UCITA at the same time.

      Otherwise, we will only take it seriously after it is too late.
    • This is how the whole mess in software licensing started.

      First software licenses were placed on the inside of the box. But that was absurd, so they were then placed on the outside of the box. But that still wasn't legally binding. So they displayed the license during install. But there still was no indication of acceptance, so they resorted to click-wrap. Now the general consensus among lawyers (not the public) is that click wrap is every bit as binding as those twenty signatures you need to on a mortgage contract.

      But all through this process no one ever stopped to stay "hey, isn't the whole concept of licensing consumer software stupid?"

      Now it's starting with books. Some lawsuit is going to occur, one side or the other will win, and the entire concept of licensing books is going to be validated.From that point onward we are screwed.
      • The difference is that legally we've already figured out how books work. We've made special laws that deal with it. With software it was new territory, but with books this isn't "starting out". The rights you have when you own a book are already well documented.

        Besides, the idea of licensing software isn't stupid. The fact that people will agree to any licence that's put in front of them is what's stupid. You don't accept the AOL software license because an AOL CD showed up in your mailbox. It works the same way as with the book. You can do whatever you want with the bits on the disk as long as you don't violate the copyright (or any of the new laws that apply to software, but not to books), and you don't execute and then click through the part that contains the license agreement.
  • Identify the fucking book, and don't buy it. If you feel like it, call up the publisher, tell them why you're not buying the book, then hang up.

    Even if it's a textbook you need for a class, don't buy it.

    ...

    Look at me, I'm a big boy I can read an article!

    The book was unsolicited! My God, it's like spam! "By opening this email, you agree to buy this all natural penis enlarging formula, this is not spam."
  • I always open my books from the back....

    I like to see if the butler really did it.

    I guess I never got a chance to see the license :)
  • by debest ( 471937 )
    There is nothing in Copyright Law that would lend any ability for a publisher of a book to enforce this. Heck, clickthru licences for software are only made legally enforceable by UCITA in the USA, and that's been passed in, what, 1 or 2 states so far?

    So far, the only thing that keeps people obeying the terms of EULAs is that publishers generally have more and better lawyers than the users of their content. The fear of getting dragged to court is what forces any compliance.
  • by Tablizer ( 95088 ) on Wednesday August 14, 2002 @02:01PM (#4071316) Journal
    If you buy the US edition, the cover locks closed in Europe, and visa versa.
  • Here's the text (Score:4, Informative)

    by doublem ( 118724 ) on Wednesday August 14, 2002 @02:01PM (#4071322) Homepage Journal
    Another one bites the ./ dust:

    wget is a wonderful thing:

    The Gripe Line
    Ed Foster
    Open with caution

    I SUPPOSE IT was inevitable. With sneakwrap terms showing up in everything from charity Web sites to pornographic spam, it was just a matter of time. Books with shrinkwrap license agreements have arrived.

    The first report of this phenomena to The Gripe Line came a few months ago when a reader who is a physician received an unsolicited tome in the mail entitled Geriatric Pharmaceutical Care Guidelines, 2002 Edition, from Omnicare. "This book arrived wrapped in plastic with a shrinkwrap license on the front," the doctor wrote. "It plainly says that by breaking the seal you agree to the terms of the license and if you don't agree you should return the book unopened. Is this what software licensing has led us to? This license says the book remains the property of Omnicare. Will they come up with a way to remotely disable the book if someone else reads it?"

    The doctor obligingly faxed me a copy of the license, and I saw that it was indeed a sneakwrap agreement worthy of Microsoft or VeriSign. "In the event that you do not agree with any terms of this agreement you should promptly return the material unopened to your local Omnicare pharmacy," it read in bold letters near the top.

    The license was nontransferable and would "terminate immediately if the Licensee or his or her employer ceased to be an Omnicare customer." And although the Omnicare "Guidelines are intended only to provide guidance as to which pharmaceutical products Omnicare believes to be most effective" the "licensee" was nonetheless prohibited from disclosing any of the information in the book to third parties.

    It struck me that this license put the doctor in an awkward position. As far as he knew, neither he nor any of the other doctors in his office (most of whom had received their own copies the book) were Omnicare customers, and he did not know where his "local Omnicare pharmacy" might be. Even if he wanted to keep the book, as a non-Omnicare customer the license prohibited him from doing so. And since Omnicare claimed to retain ownership of his copy, he couldn't destroy it either. If the license agreement was to be taken seriously, he either had to go to the trouble of trying to ship the book back or he had to become an Omnicare customer somehow.

    The doctor wondered if Omnicare was trying to make him feel obligated to them. "Sometimes my less-than-favorite charities send me greeting cards or stickers or a writing instrument in the mail," the doctor noted. "They are hoping to provoke enough sense of obligation in me to extract a contribution, but legally I am not required to acknowledge, or pay for, or return, or refrain from using what they send. So what is my obligation when sent an unsolicited book? Am I legally required not to use it or to return it if I don't agree with the sender's intended use?"

    So just what was Omnicare's purpose in putting a classic shrinkwrap agreement (it was even printed in small, poorly-contrasted type) on a book that was clearly intended to promote use of the company's pharmaceutical products? I hoped Omnicare officials might have a simple explanation, but if they did, they decided not to share it with me. After two months of going back and forth with their public relations staff, I did not even get an answer on the basic question of what a noncustomer was supposed to do with the book.

    While I was waiting in vain for answers from Omnicare, though, I heard from another reader with a shrinkwrapped book. Interestingly enough, he was also a doctor, but his book was a membership directory published by a medical society. I'm not going to identify the organization, partly because my deadline didn't allow them much time to respond to my questions and partly because their license was much less restrictive than Omnicare's. But their spokesperson was also unable to offer any explanations for why they felt it necessary to attach a license agreement to that book.

    As I thought about it, however, it occurred to me that it doesn't really matter why we're suddenly seeing these books in the medical field with shrinkwrap licenses. Perhaps the publishers have good reasons for using them, perhaps they don't. But if someone wants to slap some legalese of dubious merit on the front of a book, why shouldn't they? Software publishers have been doing it for years, after all, so it only seems fair that publishers of other forms of intellectual property should have the same right to try to put restrictions on how customers use their products.

    And, if there's no real justification for prohibiting book publishers from doing what software publishers do, how can we draw the line even at products containing intellectual property? Perhaps lamps will soon come with fine print legalese on the inside of the lampshade banning them from being resold at yard sales without the manufacturer's permission. And tearing that tag off your mattress really will bring the police pounding on your door.

    Last week we talked about how we've already lost some of the basic rights we used to enjoy under traditional interpretations of copyright law. Loaning a book to a friend is not yet one of them, but who knows how much longer we'll be able to say that. Today we might still reasonably expect that any sane judge would just laugh if someone tried to get him or her to enforce a license such as Omnicare's limited-use license agreement. We must remember though that there are very powerful forces in this country working to give all sneakwrap agreements the full force of a binding contract. Next week we'll pay them another visit.

    Have you received any sneakwrap agreements on books or other products? Write to Ed Foster, InfoWorld's reader advocate. You can reach him at gripe@infoworld.com.

  • Hmmmmm..... (Score:4, Insightful)

    by GeneralEmergency ( 240687 ) on Wednesday August 14, 2002 @02:02PM (#4071330) Journal

    The license was nontransferable and would "terminate immediately if the Licensee or his or her employer ceased to be an Omnicare customer." And although the Omnicare "Guidelines are intended only to provide guidance as to which pharmaceutical products Omnicare believes to be most effective" the "licensee" was nonetheless prohibited from disclosing any of the information in the book to third parties.



    Wouldn't the Doctor's patients be considered "Third Parties" in this scenario?

  • by Paul the Bold ( 264588 ) on Wednesday August 14, 2002 @02:02PM (#4071333)
    This would be a great way for physicians to avoid the high cost of malpractice insurance. They could simply force us to agree to a shrinkwrap license before filling out forms at the office. Furthermore, they could increase sales by forbidding any discussion of the remedy. What a wonderful thing for society!



    Disclaimer: The preceeding argument should have been reducto ad absurdum. By reading the above comment, you agree to not post any flames. Furthermore, you may not read the comment out loud, nor can you discuss it in any forum (eg. Slashdot) without prior written permission by the author. You may also not correct the spelling or improper use of Latin phrases present in this disclaimer. If you do not agree to these terms, you must destroy all copies that may have been made, including the imprint on your retina. Terms enforced where prohibited by law.

  • Only logical. (Score:4, Insightful)

    by Skyshadow ( 508 ) on Wednesday August 14, 2002 @02:03PM (#4071335) Homepage
    If you're going to make information an ownable commodity, this sort of thing is bound to happen over a long enough timeline.

    The really insideous part of this is that, in order to protect strictly financial interests, copyright barrons like Disney and Microsoft and the politicians they (let's be honest) bribe with large campaign contributions have pushed us to a place where information and knowledge can be proprietary and restricted in a way that hasn't been feasible since the invention of the printing press.

    To protect profits from Britney's new crappy CD, these companies have harkened in a world where information can be (at least in theory) totally controlled. Naturally, the fact that this is completely hostile to the basic presumptions of democracy is completely peripheral -- next we'll have printing of bills restricted, politicians suing to keep the gaffes in their public releases supressed under the auspices of the DMCA and an even more uninformed public.

    Hopefully, this sort of thing will spur some sort of public outrage at it progresses, pushing the pendulum back the other way -- it'll happen eventually. The question is how far things will have to go before Joe and Jane Sixpack start to give a shit.

    In the mean time, might I suggest a contribution to the ACLU or EFF? Remember that the RIAA, MPAA and other four-letter-orgs-'o-evil have to spend to overcome common sense, where those of us on the "right" side don't, so your $25 contribution means a lot.

  • by Ldir ( 411548 ) on Wednesday August 14, 2002 @02:03PM (#4071341)
    I don't have a reference, but I understood that there is a long-standing legal doctrine that recipients of unsolicited merchandise have no obligation whatsoever. Am I off base, or has this changed? According to the column, this doctor may not even have the right to throw the book away.

    When one buys a product with a shrink-wrap license, the vendor can at least claim the customer made a decision to acquire it. This new scam is beyond outrageous.

  • by em.a18 ( 31142 ) on Wednesday August 14, 2002 @02:04PM (#4071343) Homepage
    Books that comes with a license are NOT new. It's not at all unusual to receive books of documentation when one signs a non-disclosure agremeent (NDA). That's not the unusual part.

    There are two new aspects to this idea. I'm not a lawyer, so perhaps the more legal minded can answer these.

    First, can I attach a shrinkwap license to anything? It seems well accepted for software. But what about apples? Can I enforce a shrinkwrap agreement that says you won't sell the apple to somebody else?

    Second, are you bound by a shrink wrap license one receives unsolicited through the mail? One is *not* bound to return anything or even acknowledge merchandise that one receives unsolicitied through the mail.
    • by markmoss ( 301064 ) on Wednesday August 14, 2002 @03:23PM (#4071896)
      IANAL, but one aspect is quite simple. No you cannot attach a shrink-wrapped license to a book that is purchased in the normal way. You bought it, you own it, you can sell it, loan it, read it, or use it for toilet paper. That's called "first sale doctrine", and IIRC the court cases establishing it were in the 1920's. (Note that a shrink-wrap license saying simply that you cannot duplicate the book would be legal, but redundant. Copyright law already says that.)

      No one's tried that with apples, but I expect the same rule would apply. The one place shrink-wrap licenses currently might hold up in court is on software. The software vendor's argument is that the user owns the CD and the copy of the software on it, but to use the software you have to make copies (to your hard drive, then from HD to RAM), and this violates the copyright act unless it is done under the license from the vendor. Counterarguments (1) When I read a book, a copy of the text is created in my neurons. Furthermore, I once recited Tolkien's short story "Farmer Giles of Ham" from memory to my little sister, creating a secondary copy in her head. Congress did not intend to outlaw that, nor require that I get a license from the publisher to read the book or tell the story. I don't think they intended to outlaw copies of software created in the course of normal use, either. (2) Many of these licenses now contain unconscionable provisions.

      The NDA is something else again. You signed a contract before you could get the book. It may specify that you don't own the book, you just get to look at it for a while. And quite obviously, if NDA's are to have any force at all, they must be able to prevent you from reselling the documents. But as I said, this is a contract agreed to before the documents are sent to you, not a surprise after purchase.

      The medical directory _might_ come under the a similar exception as the NDA - assuming it was a sort of membership list for an organization of doctors, you have to join the organization to get it, and one of the bylaws you agreed to when you got your membership was that you don't let outsiders get the membership list...

      A shrink wrap license on unsolicited merchandise goes beyond these precedents in some ways. For sure they cannot require you to spend time or money trying to return the item. You can certainly toss it in the dumpster unopened. You can use those AOL CD's as frisbies, coasters, and skeet targets without bothering to read the EULA. However, you connect to AOL and you are using their service, so you'd better check out what you are contracting to do in return.

      Beyond that, would first sale apply when there wasn't any sale? I'd figure that, since postal regulations say unsolicited merchandise is your property, you've got the same freedom with that book that you do with a book yuu just bought from Barnes and Noble. The doctor should even be able to auction it on e-bay - but if they sue, his legal fees to establish that right are going to make his malpractice insurance look cheap!
      • by Anonymous Coward
        The software vendor's argument is that the user owns the CD and the copy of the software on it, but to use the software you have to make copies (to your hard drive, then from HD to RAM), and this violates the copyright act unless it is done under the license from the vendor.

        If that's their best argument, then they don't have a leg to stand on: 17 USC 117(a)(1) [cornell.edu].

        Even if that law weren't there, I agree with you that it would be ridiculous if incidental copying needed to use your own copy would violate the law. That would probably be enough to get any EULA tossed out, assuming you could find a judge who still believes in the original intent of copyright.

    • "First, can I attach a shrinkwap license to anything? It seems well accepted for software. But what about apples? Can I enforce a shrinkwrap agreement that says you won't sell the apple to somebody else?"

      I think an apple is a bad example, because unlike a book, you can 'use' an apple only one time. Once it is consumed, you can't resell it to someone else. (At least not very easily.)

      A book can be resold and 'consumed' again, thus bringing up 'questions' about the rules of reselling.

  • by ebbomega ( 410207 ) on Wednesday August 14, 2002 @02:07PM (#4071359) Journal
    Since everybody seems to be jumping in on the trend, I'm going to start up a business. It's going to be a clothing store. However, before the customer buys the clothing, they have to sign a licensing agreement, saying that they will not wear the clothing every day of the week. Slowly but surely all other clothing lines will follow suit (pun unintended) so that eventually, the clothing industry will have the entire planet color-coordinated. Tuesday will be Green Day, and Thursday is to be Hawaiian Shirt Day.

    Naturally, Mondays will be black.

    Anybody caught wearing their clothing on the wrong day of the week will be reported to the Thought Pol^H^H^H^H^H^H^H^H^H^HAuthorities and be detained for breaking copywrite violations.

    And everybody says that corporations aren't taking away our freedoms.

    Once again, this is another case of "You want ice cream. You need ice cream. Your existence is meaningless without ice cream."
    • According to Lumburgh, Hawaiian shirt day is on Friday. You can wear jeans if you want.
      • Damn... I'm gonna have to sue his ass then for breaching my Clothing EULA with destructive intent... because, well, he's outright violating and distributing encouragement of violation of my license. That's harsh abuse of my signed EULA...

        Either that or I'll just install the superman III virus on their computer systems....
    • Oh, geez. Selling ice cream to the filthy worthless Earthenoids again, Zim?
    • they have to sign a licensing agreement

      I have no problem with you refusing to sell the clothing without a signature. That's how they sell houses, and I've seen house deeds with even stranger provisions.

      The problem with this book, and the entire software industry, is that they sell or give you a product before you have agreed to any license or contract. Furthmore, they are claiming contractual agreement where none exists.
  • by erroneus ( 253617 ) on Wednesday August 14, 2002 @02:11PM (#4071378) Homepage
    If I recall correctly, isn't there a law that says no one can send you anything without your approval and that if they did, you cannot be bound by any terms to purchase regardless of what any print on the item might say?

    In short, if you recieve something in the mail, you have full rights to the article.

    This was put into effect when many magazine publishers would start sending magazines to a customer and later charge him for a subscription rate. I see no fundamental difference in this case.
    • Pretty much. I remember hearing in business law in high school that if someone sends you somethings in the mail that you did not ask for (and it was addressed to you.) It is considered a gift. They cannot subject to terms such as "you must now pay us $10 or return this." So, if they send you it, keep it, and ignore the license. It is a gift from them, and they are being very nice by letting you have it for free. =]
  • Dear sir,


    I have long been interested in Omnicare products and had hoped this book would have assisted me in becoming a customer, however, since the licensing terms forbid me from reading it (not being a current Omnicare customer) I am returning the book to you unopened . . .

  • charge a storage fee (Score:5, Interesting)

    by dutky ( 20510 ) on Wednesday August 14, 2002 @02:15PM (#4071415) Homepage Journal
    If I were to receive an unsolicited item bearing a restrictive license of this sort, I would immediately send an invoice and rental agreement to the licensor for weekly storage and handling of their merchandise at my location, payable within 15 days unless the licensor came to my location and retrieved the item forthwith. Failure to retrieve the item within 15 days would indicate acceptance of the rental agreement.

    Every month I would send a new invoice for the elapsed period, less payments, plus any late payment fees and interest.

    When the total amount owed exceeded the local small-claims limit, I would confiscate the licensors' property for auction and file suit to recover the debt.

  • It doesnt matter... (Score:3, Interesting)

    by Lumpy ( 12016 ) on Wednesday August 14, 2002 @02:18PM (#4071427) Homepage
    If the book was sent in the USA, and the reciever did not request it. Anything this Omnicare company tries to enforce is null and void. That book is the exclusive property of the persons who recieved it.

    I dont care what a scumbag lawyer writes or says.. if it goes against a federal law it's worthless drivel...

    Come to think of it, Most everything a lawyer says is drivel....

    nevermind.
  • The only profession that is benifiting more from technology than engineers and technologists are the lawyers

    All bad precedents begin with justifiable measures." - Julius Ceasar

    • Everybody loves to hate lawyers until their neighbors dog bites their kid. Then it's "Bring me his fucking head, kill him and his tribe !!!"

      Or better yet, get your drunk ass into a custody fight with your ex trailer bride. You'll be demanding your lawyer personally piss on them.
    • Door Stop
    • Ballast
    • Booster Seat
    • Exhibit A
    • Kindling (watch those plastic fumes, tho)
  • This is inevitable. Anything with someone's "intellectual property" in it (i.e., pretty much everything you buy, in some cases a lot of the stuff you make yourself) is subject to this nonesense.

    Examples of shrink-licensable stuff:

    • Anything containing written words: books, magazines, computer code, etc.
    • Anything containing trademarked logos/sounds/etc or housed in distinctive trade dress: computers, cars, shoes, soft drink bottles, T-shirts with big corporate logos, etc.
    • Anything containing patented technology: ziploc bags, telephones, pens, pencils, lots of software, etc.

    So pretty much everything. All they have to do is hinge it on the fact that they never explicitly authorized you to display that trademark in public, or allowed you to use the patented pen in your place of business. Ignoring the fact that they actually sold it to you.

    The only recourse seems to be: don't buy it and hope that you can function in the world without it.

  • by wowbagger ( 69688 ) on Wednesday August 14, 2002 @02:29PM (#4071524) Homepage Journal
    I started receiving an unsolicted magazine, "Home Mechanix". Ninty or more percent of the magazine was junk, so I'd just toss them.

    One day, I get a bill in the mail, saying I owed them for the subscription, and that if I didn't pay they'd forward it to Collections.

    I wrote back, informing them that
    1. I'd never subscribed for the magazine
    2. They were in violation of the US postal code
    3. If this ever showed up on any credit report of mine, I'd bring criminal charges of mail fraud against them as well as civil charges.


    <voice font="Jim Nabors">Sur-Prize Sur-Prize Sur-Prize!</voice> I got a mail back from them saying "Uhhh, we checked our records, and we can find no evidence you ever signed up for this. Our collections is purely internal, and never would have shown up on your report. We're sorry, please don't kill us!". I figure it was the old "send them crap and bill them" scam, and when they found out that I wasn't going to play, they backpedaled faster than BillG on Palladium being DRM....
  • Just by reading something, you become infected!

    For example,
    By reading this book:

    You agree to subscribe unconditionally to the ideas contained therein (hence "those ideas"), without possibility of doubt. You agree not to criticise those ideas, publically or within your own mind, or to find in them any fault, including inconsistencies or errors of fact or of logic. You agree to subsrcibe unconditionally to any interpretation or alteration of those ideas put forth by the publisher, in the same fashion.

    You agree to incorporate those ideas into your world view, and that those ideas will be reflected in your activities within the public sphere, including but not limited to: voting, participation in public discourse, and donations to political causes, parties or campaigns.

    You agree that those ideas will be reflected in your decisions in the economic sphere, including but not limited to: choice of business associates, choice of place of employment and purchasing decisions, either on your own part or on behalf of any persons or corporate entity which you represent, in any capacity.

    You agree to engage in missionary activities to spread those ideas, and to encourage other persons who have not read this book and agreed to this license to do so, as directed by the publisher.

    You agree to assist in any way possible with the publisher's efforts to punish those who violate the terms of this license, as directed by the publisher, without regard to the legality or morality of the directives of the publisher. You agree not to even consider violating this license as a possibility. You agree never to disclose embarassing or legally compromising information about the publisher, even if compelled to do so in a court of law.

    You agree not to associate socially with those who do not ascribe to the ideas contained herein, except as necesarry to fulfill your obligations detailed previously.

    If you do not agree to the terms of this license, return the book, without reading it, along with a point by point refutation of all ideas contained therein, within 30 days of receipt.
  • Prophetic rms (Score:3, Interesting)

    by PaxTech ( 103481 ) on Wednesday August 14, 2002 @02:36PM (#4071564) Homepage
    Stallman's Right to Read essay [gnu.org] comes closer to becoming reality every day.
  • Two absurd scenarios (Score:3, Interesting)

    by teetam ( 584150 ) on Wednesday August 14, 2002 @02:37PM (#4071571) Homepage
    There are two absurd scenarios to consider:
    1. A bonehead consumer buys (or gets hold of) a product and does something unintended with it. Then, he gets hold of a bunch of lawyers and sues the company for a lot of money for not "informing" the consumer about what should not be done with their product. I mean, doesn't everyone know that plastic bags are not toys and can cause suffocation if they held tightly over the head?
    2. Manufacturing companies, realizing that any product can be used in ways that can be harmful, fill their packing with warning labels and such, prepared with the help of a bunch of lawyers. People tend to ignore all these warnings because there are too many of them.

    When common sense goes out the window, what else is left but uncommon nonsense?

    In both scenarios, the only people who benefit are the lawyers.

    Something should be done to restore common sense in our daily lives. When you get a book, what you can do with the book should follow common sense and not be governed by some stupid license agreement. The recepient should not be able to sue the publisher if he tries to flush the book down and floods his own house. On the hand, the sender should not try and dictate what the consumer does with the book. "Do what you want, but remember that you are responsible for doing it."

  • I once threw a party in which I put signs up everywhere that read, "Party at your own risk - you accept full responsibility for your own actions." I hadn't really mitigated my own liability with those notices - they were not legally binding and would not stand up in court.

    In the case of EULA's for books I think the same principle applies - I can post whatever the hell legal notices that I want, but it doesn't mean that there is any enforcability or legality to it. If this crap was to withstand a court-test then I am going to start taking out ads in my local newspaper that say, "My house is proprietary property. Looking at my property constitutes acceptance of the user license posted in the front yard." Of course, the sign on the front yard reads, "Looking at this house obligates you to a nominal 'usage' fee. Please deposit $100.00 in the cast iron box to avoid prosecution and litigation."


    Just because I told you to doesn't mean your not smart enough not to.

    SmR
    smr@mayanproductions.com [mailto]
  • What Omnicare does (Score:3, Insightful)

    by Animats ( 122034 ) on Wednesday August 14, 2002 @02:59PM (#4071750) Homepage
    Omnicare is a pharmacy service designed to reduce costs in nursing homes, partly by substituting cheaper drugs. The shrink-wrapped book is their guide to doing this.
    • "Health care providers who comply with the "Omnicare Guidelines® [omnicare.com] have been able to improve patient care, while achieving significant cost savings, in some cases by as much as 30%."

    While Omnicare claims their guidelines aren't based on drug prices, their marketing (which is to nursing homes, not patients) emphasises cost reduction.

    It's thus more like a manual for a proprietary service than a published book. I'd worry more about the service than the book.

  • By reading this book, you agree to the following terms:

    1) This book and all material contained herin is property of the publisher and may not be copied, reproduced or redistributed in any form without the written consent of the publisher, the publisher's wife and his dog (here after refered to as publisher and co.)

    2) All ideas, thoughts, philosophies and like products developed during the reading of this book are property of the publisher. They may not be patented, copied or distributed without concent of the publisher and co.

    3) The reading of this book aloud to any person, the quoting of passages or the display of the book in a public place is expressly forbidden.

    4) If you do not agree to these terms you may not read the book. You must reshrikwrap it (at your own cost). Include the official holographic seal of authenticity and return it to the publisher with a $50 restocking fee.

    5) By accepting this agreement, you also agree to pay a $20 monthly charge for the continued licence to read the book
  • by frovingslosh ( 582462 ) on Wednesday August 14, 2002 @03:06PM (#4071806)
    The book in question was reportedly received unsolicited in the U.S. mail. Shrink wrap or not, U.S. postal regulations make it clear that such an item can be considered a gift, and need not be returned. It certainy does not stay the property of the publisher. This would be a great test case, they have set themselves up to fail.
  • Looks like this shrink-wrap mentality is becoming a problem.

    Here's my proposal.
    Let's make shrink-wrap licenses illegal.
    No, I do not mean "unenforceable".
    I mean, a law that makes putting a shrink-wrap license on something punishable by a large fine.

    -- this is not a .sig

  • There goes Borland's "No-Nonsense" "Like a book" license agreement!

    And, yes, AFAICT, they did restore it for C++Builder 5.
  • I have wondered why it is considered permissible, or legal, to present an individual with the terms of an EULA AFTER purchasing the product. It seems logical that the potential purchaser must be presented with all conditions of the acquisition before making the acquisition.

    It appears to be analagous to these department stores which post their return policy on the back of the receipt of the product which you purchased. Under these circumstances, I know for certain that the return policy is legally void.

    The same logic should follow for shrinkwrapped/electronic EULA: if the purchaser has been presented with the agreement after the purchase, the EULA is void.

  • I'm baffled by what the enforcement mechanism would be for the license. If you broke the license `agreement', so what?

    The case for software licences is lame, but well set-out. The argument is that by making a copy of the software to have it run on your computer, you're making a copy of the whole piece of software, beyond fair-use rights. So you're breaking copyright law if you install or run the software. The license agreement allows you to install or run the software, so if you don't abide by the license agreement, you're in violation of copyright law and Bad Things can be done to you.

    That argument is clearly bogus, but that's the state of Copyright case law at the moement.

    But what could you possibly be in violation of if you shred the license on a book? For the license to be valid, it has to be giving *you* something as part of the deal. (IANAL, etc.) What could the book license possibly grant you that you can't get just by owning the book? The right to read it? No. You get to keep the book? No -- I either bought it, or in this case it arrived free; I own it, tough. So how could a book shrinkwrap possibly be valid?

    Now, the DMCA puts some enforcable provisions in if its an e-book (hiss, spit). And signing an agreement before being given a book -- NDAs, or something -- that's a different story entirely. But I am having trouble imagining what legal leg these book-wrap licenses could possibly be standing on.

The confusion of a staff member is measured by the length of his memos. -- New York Times, Jan. 20, 1981

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