
7,500 Online Shoppers Unknowingly Sold Their Souls - willphipps
http://www.foxnews.com/scitech/2010/04/15/online-shoppers-unknowingly-sold-souls/
======
otakucode
Most people would take this as a simple joke, but I think there's far more to
it. Not the idea of 'soul ownership', but the fact that there exist
essentially NO consumer protections whatsoever when it comes to these "digital
licenses" that the gaming industry is increasingly using. With these licenses,
gamers are stripped of nearly every single right they would retain if they had
bought the game in retail form. It would be illegal in most countries for the
sellers of any retail product to restrict the rights of the consumer in the
way that game companies do to gamers. No seller can forbid you from selling
the product you buy to someone else. With game licenses, they do. No seller
can forbid you from using the product and then giving it to a friend. With
game licenses, they do. No seller can forbid you from allowing a friend to
borrow the item. With game licenses, they do. The list goes on, and is quite
long.

As more and more transactions take place involving 'licenses' instead of
transfer of traditional goods, we are losing a tremendous amount of freedom
with how we interact with and use our purchases. I think it would be a good
idea for people to start standing up and talking to their representatives
about the need for consumer protection laws in the arena of digital licenses.
The way it is going, we'll only end up with such things if the companies end
up crossing the line and doing something entirely legal that would infuriate
the general public to a great degree, such as Apple locking every iTunes
customer out of music they already bought a license for until they paid
another $1 per track to re-purchase access to it. That would be completely
legal and within their rights, and the consumers would have no legal grounds
to comaplin at all. They signed away their rights. In EVERY other area of
commerce, there are laws preventing consumers from even being capable of
signing away such rights, and preventing sellers from exploiting their
customers in such ways. Not digital media, though. There are no protections at
all when it comes to 'licenses.'

~~~
grellas
It is generally unlawful under common law in the U.S. to place absolute
restraints on what is called the "legal power of alienation" when someone
sells you property. In other words, once you acquire ownership of property
from someone, you normally are free to re-sell it or give it away or whatever.
The law will generally strike down attempts of seller to attach strings to the
grant so as to burden what you can do with it. Attempts by sellers to put
_absolute_ restraints of this type on their buyers are generally struck down
as being against public policy. The idea is that society strongly benefits
from having property be freely transferable and no one therefore should have
the power to tie it up by placing contractual restrictions in a grant by which
the property is transferred. A more extreme situation pertained as well under
the old system of inheritance, by which property was bequeathed with "fee
tail" transfers stipulating, e.g., that the property would forever remain in
the male line of the family (the subject of so many Jane Austen novels). That
system was eventually replace by a "fee simple" system of inheritance that
severely limited a decedent's power to tie up property after his death.

With licenses, the law gives the owner vast discretion in how to fashion a
license because it is treated as a limited grant that can be shaped almost
entirely by the terms of a contract. To date, courts and legislators have not
seen the need to place "public policy" restrictions on the way licenses are
fashioned and freedom of contract continues to rule unimpeded in this area. In
other words, if you agree to it, you are bound by it.

What the article here underscores, though, is that the very idea of a contract
is something of a fiction when it comes to downloads. That does not mean it is
not upheld in courts of law. The law very frequently uses fictions that make
it convenient for commercial transactions to occur. Thus, if one must "accept"
contractual terms of use in order to download a product by clicking on
something saying that he accepts them, and in reality almost no one reads the
stupid things, this doesn't mean that there hasn't been a meeting of the minds
such as to form a binding contract. While there has in reality been no
"meeting of the minds" because the one party has not bothered to read the
contract, the law presumes that any responsible person would do so and
therefore says that you are bound by the terms whether you in fact read them
or not. Hence, the fiction that there is a true meeting of the minds in such
cases. If it were not for such fictions, chaos would prevail and this form of
commerce would cease to exist. Since it benefits society to have online forms
of digital media distribution, the law supports the fiction to enable this
form of commerce to exist by protecting the interest of vendors of digital
media through the idea of binding contractual restrictions. That part is not
about to change even though most people do not in fact read the contractual
terms (as this piece very cleverly shows).

It is another matter altogether whether any given term that happens to be
included in such contracts is enforceable or not (even though the contract as
a whole may be). Of course, a clause that makes the contract literally a
Faustian bargain would not stand but most clauses will, including the ones of
which you complain. I don't think courts will normally take the initiative to
strike these down, but legislatures may be persuaded to do something if
significant social policy concerns can be highlighted and made compelling. As
indicated above, this has happened in the past in analogous areas of law.

~~~
lkijuhyghjm
Like when you thought you had bought a movie, but it turns out you don't have
the right to watch it on your computer, or in another country, or in your car,
or skip the trailers.

But strangely when the plastic disk breaks you don't get a new replacement one
- even though all you bought was a licence to watch the contents

------
jjs
They'd have a hard time getting them from U.S.-based customers: souls, being
human remains, cannot be sent by US Mail.

([http://improbable.com/airchives/paperair/volume6/v6i4/postal...](http://improbable.com/airchives/paperair/volume6/v6i4/postal-6-4.html))

~~~
roc
Only if we beg the questions of whether the soul is indelibly human _and_
whether it's physical.

~~~
jjs
To be "remains", it needn't be indelibly human, just originally human. (e.g.
cremated ashes).

I don't think the rule specified that it had to be _physical_ remains,
although that would certainly make it easier to package.

~~~
sliverstorm
Some niggling little thing in the back of my mind is saying human remains are
one of the few things explicitly prohibited by the US Postal Service.

~~~
jjs
_Some niggling little thing in the back of my mind is saying human remains are
one of the few things explicitly prohibited by the US Postal Service._

Like this, perhaps? <http://news.ycombinator.com/item?id=1270582>

~~~
sliverstorm
Huh. I hadn't seen that yet. Sorry for repeating what you said!

------
chaosmachine
<http://news.ycombinator.com/item?id=1270058>

~~~
willphipps
you guys are way ahead of me, man..

~~~
RiderOfGiraffes
Maybe, but your submission, 2 hours later, has got twice the karma but half
the comments. Go figure. It's all random.

~~~
chaosmachine
It's all about the headline. A good headline will generate twice the upvotes
in half the time. A lot of great stories never make it to the front page
because the headlines are terrible.

~~~
RiderOfGiraffes
And yet we're told not to editorialize, so I "wasn't allowed" to change the
headline.

Additionally, the other story was already on the front page when this one was
submitted.

Still, who cares.

------
RandolphCarter
Unfortunately dread Cthullu got my soul long ago, so I would have to opt out
of this particular licensing agreement.

Ia! Ia! Cthullu fhtagn!

:-)

------
hkuo
How do we know that these shoppers did not, in fact, knowingly submit their
souls to this company? Like, hey, why not? No biggie.

In all honesty, this just illustrates a very common UI practice that opt-outs
are more effective than opt-ins.

~~~
Estragon
The $5 voucher offered for opting out makes that explanation less plausible.

~~~
hkuo
Point is that users will more often ignore opt-outs than not, regardless
whether it is beneficial to them or not. As a UI practice, it's up to the
form's creator how to manipulate this behavior.

------
richardburton
That is fantastic link-bait for their site. Well worth giving a few hundred
customers a discount voucher.

------
aw3c2
___The terms of service were updated on April Fool's Day as a gag_ __

------
JMiao
this should have been in the dante's inferno eula.

------
alexkay
Obligatory xkcd comic: <http://xkcd.com/501/>

