Thoughts on Today’s Class

A few thoughts on today’s class.

1. All our discussions on EULAs reminded me of this story I had read some time ago, and was able to miraculously find without much difficulty using Google:

2. It also reminded me of this:

3. When I draft a contract, my primary goal is to clearly state the rights and obligations of the parties so that they can refer to the agreement when necessary to figure out what they have to do and what they’re supposed to get so the parties can avoid litigation. Basically, the contract is there to eliminate (ideally) uncertainty. Aside from issues re: enforceability, I don’t think it matters whether the contract requires a conventional signature or is a click/shrink/browse wrap agreement. 

4. If there is a good or service for which you are supposed to sign a EULA before using, then I think in most cases a perfectly viable option is not to use that good or service. I do not have a right to become a Night Elf Mohawk on my own terms.

EDIT: 9:30pm, 6 February 2013

5. I completely agree that innovation is done standing on the shoulders of giants, but also think that incremental improvements can be valuable and worthy of protection. To elaborate on the example we discussed in class today, here are Maxwell’s Equations:

and here is a very simple radio:

You start with the equations, which in and of themselves are in the public domain, and through a series of incremental improvements over the years arrive at a practical invention that bears little resemblance to what you started with.

EDIT: 9:46pm, 6 February 2013

5.1 Even better, here is one of Marconi’s very early patents:

2 thoughts on “Thoughts on Today’s Class

  1. michela

    Very interesting links – and alarming at the same time. Contracts have become so superficial, to the point of being mocked by retailers (ie GameStation) and deemphasized by company managers (Dell). Who’s fault is it? How can it be rectified? Partially to blame are companies like iTunes that craft agreements that would take an obscene and unreasonable amount of time to read. The consumer is also partially to blame in that we are all guilty at one point or another of superficially signing a contract or clicking “agree” with no regards to the consequences. But then again, are there even consequences? Are contracts like iTunes really enforceable? Should they be? Can we impose a word limit on agreements to further increase consumer readership? This would certainly make the contracts more concise and in a more simple language. Hmm I feel another blog post coming on!

    1. Jon Festinger, Q.C.

      A couple of comments:

      Points 1 & 2 of course capture how weird this can get. It is your third point though that (IMHO) captures the essence of the conundrum. We lawyers do draft as you put it well “to clearly state the rights and obligations of the parties so that they can refer to the agreement when necessary to figure out what they have to do and what they’re supposed to get so the parties can avoid litigation.”

      Mostly though, we are drafting for our client and with a known party who has been negotiated with (or will be negotiated with) on the other side. EULA’s, ToS’ and the like are very different, often applying to vast numbers of people over disparate geographies and cultures who have no real opportunity to negotiate. In reviewing my old contract text from Law School (1976 – fairly pre-digital) for this past Wednesday’s talk it became clear how much notions of the sanctity of contract have to to with individual, quite personal bargains. The text evidenced considerable discomfort with contracts of adhesion generally and how those types of mass contracts fit into traditional common law contractual paradigms.

      Going to the question of Marconi and whether Abraham Flexner’s points about him in his essay “The Usefulness of Useful Knowledge” are fair. Remember that article was in defence of higher education and research – not really (except incidentally) about whether Marconi’s patent was deserved. That said from the perspective of 2013 (& not 1939) it does feel as if the current way to look at it is that Marconi was part of a re-mix process. If that is fair then is it in the public interest that whoever crosses the finish line gets the financial credit as expressed through patent rights? To me the appropriate answer seems less about apportioning the dollars as acknowledging rights of use. Marconi used and remixed the knowledge of others to acquire a quasi-property, and then as soon as he does he gets to block others?

      Parenthetically I will defend Flexner in part because he founded the Institute for Advanced Study at Princeton where the first computer was devised. In that regard the book “Turing’s Cathedral: The Origins of the Digital Universe” by George Dyson (yes, son of Freeman) is a magnificent read precisely about how collaborative across multiple disciplines the acts of creative invention that ultimately led to video games actually was. Flexner’s words reflected exactly what the Institute’s interdisciplinary mission was and given what the Institute produced and how, the harshness towards Marconi for in effect taking the credit (and the gold) for the arguably “more important” work of others perhaps can be more easily understood.

      Flexner’s article (linked from the library of the Institute for Advanced Study – how cool is that):

      Link to a review of “Turing’s Cathedral”:



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