If we wish to subject sneakwrap licenses to increased public scrutiny, can we do so without violating the terns of the licenses themselves? My recent efforts to expose nasty license terms have readers pondering this question.
Several readers pointed out that the excerpts I quoted from Hilton's incredible privacy policy in last week's GripeLog column were forbidden by Hilton's terms. "You have violated their agreement by posting direct quotes from their web site," wrote one reader. "Hilton can infer they were acquired by one of the prescribed means: 'You will not use any robot, spider, other automatic device, or manual process to monitor or copy the Site or the contents or information (including the Information) contained therein without our prior express written consent.' Of course, so have I in including content from their web site. This also means that one could not even print out the contents of their agreements."
A similar situation arose a few months ago when I wrote about a site usage agreement that banned all visitors to the website from criticizing the company or its products. "It's like something out of Alice in Wonderland," wrote another reader. "The only way you can criticize them is if you don't read them. But how can you criticize them if you can't see them?"
As unlikely as it might be that such terms could be deemed enforceable, a correspondent with some legal expertise believes there are some possible pitfalls. "As long as one is excerpting the text for purpose of public commentary, it's allowed on fair use and fundamental public policy grounds," the reader wrote. "But in the current judicial climate, it would not be surprising to see a court determine that a contract has been formed that allows the licensor to puts limits on such use."
Fortunately, nobody's sued me yet. But that's not to say it can't happen, particularly as we begin doing full-fledged "license comparisons" in what I hope will be the near future. Can we criticize sneakwrap licenses without running afoul of them? The only way to find out for sure is to do it.
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