Sorry, I mistyped when I was writing that. It has nothing to do with E&O claims, and I'm not sure exactly what privacy laws it falls under. However, I do know that we'll get in trouble if we're the cause of leaked names and addresses of our insured.
What does address have to do with E&O claims ?
Sorry, I mistyped when I was writing that. It has nothing to do with E&O claims, and I'm not sure exactly what privacy laws it falls under. However, I do know that we'll get in trouble if we're the cause of leaked names and addresses of our insured.
On what basis can you go to court because someone contacted someone else from an address ? Did you break your own privacy agreements ?
I'm not totally sure. I'm the IT manager here and therefore deal with the technical side of things rather than the insurance side. However, our owner has stressed the importance of all names and addresses being shredded and has recounted cases of our competitors going to court and losing for not shredding paperwork with just names and addresses on them. It doesn't have to be financial information, just the names and addresses.
so do the post office, the phone book, utility companies, schools, work places, web registrars, and on and on. Home address ? oh no !, lol
My information has been public for over 15 years online, never had a single problem.
Are people really that paranoid ? Go outside , experience the real world.
Incorrect, especially in the case where provisions attempt to supersede an individual's basic rights (including privacy). At that point the entire contract becomes unenforceable. Another thing to note is that if an individual point attempts to usurp local law, the entire contract may be rejected after the fact by one or both parties due to the flawed nature of the contract (a similar example is how contracted fee schedules work when changed - if the fees change or get amended, one or both parties may exercise their right to terminate the contract without penalty).Only the provisions that go against local laws are void not the entire EULA and they are enforceable.
Incorrect, especially in the case where provisions attempt to supersede an individual's basic rights (including privacy). At that point the entire contract becomes unenforceable.
And clickthru's and shrinkwrapped EULA's are considered unenforceable due to the terminology of the fact that you must open and attempt to install the software before even being able to understand the terms set forth in the software's usage. There's tons of case law out there regarding all of these issues that lean towards protecting the consumer's rights.
Nature of the Case
This was an appeal from the order denying grant of an injunction to ProCd (P) on the basis that its license was void because it was contained within packaged software.
Issues
- Is a contract in which the exchange of money precedes the communication of detailed terms valid?
- Is a software shrinkwrap license valid?
Holding and Rule of Law
A contract includes only the terms on which the parties have agreed. We treat the licenses as ordinary contracts accompanying the sale of products and therefore this transaction is governed by the UCC and the common law of contracts.
- Yes. A contract in which the exchange of money precedes the communication of detailed terms is valid.
- Yes. A software shrinkwrap license is valid.
Zeidenberg argues that placing the package on display in a store constitutes an offer that the customer accepts by paying the asking price and leaving the store with the goods.
The trial judge and Zeidenberg concluded that a party cannot agree to hidden terms. But one of the terms that Zeidenberg agreed to in purchasing the product was that it was subject to a license.
We do not agree with Zeidenberg’s position that this license must be printed on the outside of the box. The only way that the entire terms of the license could have been put on this box would have been with microscopic type.
Transactions in which the exchange of money precedes the communications of the detailed terms are common. What has occurred under these facts is quite a common transaction wherein the money is paid and then the terms and conditions of the contract are delivered with an option for the buyer to rescind. This type of transaction is the common method of purchase for many items including insurance policies, airline tickets, and concert tickets.
Zeidenberg contends that the information inside the box is irrelevant and to extend this analogy to consumer goods, then the warranty in the box of a consumer good is irrelevant. But so far as we are aware no state disregards such hidden documents in such transactions.
Even in the software industry, only a minority of sales actually occur over the counter with most occurring over the phone. Increasingly the transaction is done by ESD (Electronic Software Distribution) in which only the information itself is transferred by modem.
If Zeidenberg’s arguments were applied to all sales, then even these unboxed sales would be unfettered by terms and the seller would be deemed to have made a broad warranty and thus must pay consequential damages for any shortfalls.
Under the concept proffered by the district court, the UCC does not countenance the sequence of money now and terms later. We cannot find any cases involving sales contracts for consumer goods that address such a proposition.
A contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties, which recognizes the existence of such a contract.
A vendor is master of his offer and he may invite acceptance in by conduct and may propose limitations on the kind of conduct that constitutes acceptance.
Under UCC 2-204(1), ProCd proposed a contract that a buyer would accept by using the software after having an opportunity to read the license at his leisure. Zeidenberg did this.
Under Section 2-606 a buyer accepts goods when after he has had an opportunity to inspect, he fails to make an effective rejection under 2-606(1).
ProCd extended Zeidenberg an opportunity to reject if he found the license unsatisfactory. Zeidenberg inspected the product, tried out the software and learned about the license and decided not to reject the goods.
Zeidenberg in fact had no choice because the license splashed on the screen and would not let him proceed without indicating acceptance.
ProCd proposed and Zeidenberg accepted and under 2-206(1) and (1)(b) a buyer accepts goods when after an opportunity to inspect, he fails to make an effective rejection.
Zeidenberg got the package, used the goods and did not reject the goods.
The license called for an opportunity to return if not satisfied with the license. The UCC does impose additional requirements on the way parties agree to terms (see 2-316(2), 2-205, 2-209(2)) in certain instances.
Zeidenberg has not located any cases in this state or in any other holding that the UCC requires special prominence for the terms of shrinkwrap licenses.
The only problem I have with the statement above is it is becoming exceedingly hard to return software purchases. Now, I'm sure (well, I used to be) that Blizzard would refund the money of an unactivated CD key you purchased, but how many retailers would do this? If I buy something at GameStop, can I just return it? They would be very skeptical of receiving purchased (and opened) software. I have to open it to read the entire EULA.
But a lot of software does not have that and you can't return it, though I never tried returning software to the store using the eula as the reason. The other problem is EULA are so damn long that nobody wants to read them.THIS SOFTWARE IS LICENSED, NOT SOLD. BY INSTALLING, COPYING OR OTHERWISE USING THE GAME (DEFINED BELOW), YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU ARE NOT PERMITTED TO INSTALL, COPY OR USE THE GAME. IF YOU REJECT THE TERMS OF THIS AGREEMENT WITHIN THIRTY (30) DAYS AFTER YOUR PURCHASE, YOU MAY CALL (800)757-7707 TO REQUEST A FULL REFUND OF THE PURCHASE PRICE
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE THE SOFTWARE. VISIT http://www.adobe.com/go/support FOR INFORMATION ABOUT RETURNING THE SOFTWARE AND OBTAINING A REFUND.
I agree . But the law is what it is. There are no provisions requiring them to take back the software if you do not agree. Some have it though. Like blizzards says
But a lot of software does not have that and you can't return it, though I never tried returning software to the store using the eula as the reason. The other problem is EULA are so damn long that nobody wants to read them.
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I am completely in agreement. It is the law, and some of the "better" companies would refund your money. And as far as people being too lazy to read them, it is their own fault if they get screwed over. Those same people probably didn't read the terms of their credit cards either and want to cry foul when they miss a payment and now have 30% interest rates.
I live in the real world. The one where your name is everywhere and so is your address. If you went to a psychiatrist and told them that you were afraid of someone in a game learning your real name because they might come and kill you they would start you on anti-psychotic medication .
If people are playing a game that has them fearing for their life then quit playing it.
If it's still a question of whether this is a good idea or bad idea after reading the above story, then I don't know what else to say.Watch out who you kill in the virtual world, it may inspire someone to attack you in the real one.
That's what happened to one Frenchman, who was stabbed and nearly killed by a fellow "Counter-Strike" player, according to London's Telegraph.
Julien Barreaux reportedly spent six months looking for the person who killed his online character in a virtual knife fight, and eventually found the foe living only a few miles away in Cambrai, a town about 2 hours north of Paris.
The 20-year-old, armed with a real-life kitchen knife, went to the man's house and brutally stabbed him in the chest. The victim, identified only as Mikhael, survived the assault after the blade missed his heart by less than an inch.
"Barreaux was arrested within the hour and told us he had wanted to see his rival wiped out for killing off his character," a police officer testified at the trial, the Telegraph reported.
The overzealous video gamer will spend two years behind bars, and receive anger management therapy.
"You are a menace to society," Judge Alexiane Potel said. "I am frankly terrified of the disproportionate reaction you could have if someone looked at you the wrong way in the street."
If it's still a question of whether this is a good idea or bad idea after reading the above story, then I don't know what else to say.
Personally, I don't really want to use my real name to post on the WoW forums, so I just won't. No big deal, I'm not paying $15/month to post on those forums anyway. If I really want to discuss WoW on a forum, I'll go to any of the dozens of other sites that won't ask for my real name.
With that said, I really don't see a huge point in Blizzard doing this. I can understand Blizzard wanting to tie together all their games and such, but there's no need to try and integrate social networking into the mix. People play fantasy games to get away, not let their real life follow them.
Bingo. People don't realize that the forums are a PRIVILEGE, and one that is already overly-abused by the likes of the typical nerd raging WoWtard. I only see good things coming from this, and I wish it was everywhere. My name is very rare, and I have no problems disclosing it online because I only say shit I would say in real life.
Shit. I guarantee you that if Blizzard wasn't basically forced to provide forums they sure as hell wouldn't. It's a lot of fucking wasted bandwidth with no financial payout - in fact it requires more money to run and maintain due to staff, moderation, upkeep.. it's a total money sink, and an unnecessary one as long as there is phone/email support for billing and tech.. which there is. Forums are just a social medium.
All it proves is people can be violent. If it is such a threat why are there not a lot of counter strike related murders in the real world ? It has millions and millions of players and yet we don't see even a handful of murders ? Sorry that case wouldn't stand up in any court.
That is the same logic that people use when someone murders someone with a gun and says that guns should be banned because they can kill.
Really if what people are doing online is causing them to worry about someone coming after them then I suggest they not do it.
OK, so would you please post your full name and address here?
I don't know, part of the $15 monthly fee is paying to run those forums, you can't post in them if you don't have a paid account. So I wouldn't say it's a privilege because you're paying for it. Maybe to some people that matters, which means there is a financial payout - especially since Blizzard's forums get ad revenue. Personally I rarely use a game's forums.
But Blizzard actually refers you to their forums for tech support questions and problem solving. I assume it costs less money to hire some forum mods and let customers self service their tech issues than to pay a ton of tech support staff to answer phones.