Tricky sneakwrap terms lurk in the depths of the Internet for so many different kinds of products theses days, it's all too easy to violate some supposedly binding legal contract without even knowing it. If you happen to have some ornamental fish you're leaving unchaperoned, just for example, you might already be in way over your head.
"Now there are EULAs for fish," a reader recently wrote me. "Yes, as in the kind with fins and gills you would buy in a baggie and bring home to put in an aquarium. I stumbled across the website for GloFish, a genetically-modified form of Zebra fish that have a fluorescent glow. The license agreement there is short and sweet, but it does contain one big shocker."
As EULAs are skittish creatures that sometimes disappear once they realize they're being watched, I will quote the "GloFish Fluorescent Fish License Notice" as it was to be found in its entirety on the GloFish site on June 15, 2005:
"The GloFish fluorescent ornamental fish are intended solely for visual enjoyment as aquarium fish by end users who have purchased these fish from authorized resellers, and not for commercial reproduction. These fish are the subject of various intellectual property rights owned or controlled by Yorktown Technologies, Inc. ('Yorktown'), both in the U.S. and internationally. These rights include (1) patent rights, including published patent applications (2) copyrights; and (3) trademark rights, including slogans and service marks."
"By accepting these fish, and as part of the consideration therefor, the recipient agrees: (1) not to, breed or propagate these fish, permit or encourage others to breed or propagate these fish, or otherwise intentionally engage in any activity that may result in or lead to the breeding or propagation of these fish by anyone without the express written consent of Yorktown; (2) not to sell or transfer these fish to anyone in the State of California, or to possess or otherwise engage in any activity that results in the possession of these fish in the State of California."
Now, being a Californian, I couldn't help but notice that last part. Hey, we already feel like there must be an ocean or two between us and the rest of the country, and now we can't even buy the same pets as everybody else? It turns out, however, this is due not to discrimination on Yorktown's part but just another one of those unique laws California's enacted. Something about our wimpy state legislature not wanting to take any chances with Day-Glo genes getting into the wrong stream of wildlife, such as Sunset Boulevard. Hey, we march to a different drum out here.
What the reader really found surprising about the GloFish license was the bit about not letting the fish breed. "As far as I know, the fish are not shipped sterile, so they should not require any reverse engineering to bear young," the reader commented. "And, Ed, this brings me to a question. How exactly do you keep a two-inch fish from romancing the shiny young lovely from the cave on the other side of the tank when the lights go out? Assuming she's game, too? You know what they say, two young fish in love in the springtime..."
While it isn't made entirely clear on GloFish.com, further inquiries by both the reader and I did confirm that rubbing two GloFish together - or permitting and encouraging them to do so themselves - can indeed produce baby GloFish. Another thing we discovered that generally seems to be the case is that the GloFish don't have any form of shrinkwrap (or slipstream or splashscreen or whatever) license agreement attached when they are sold. "I spoke to the listed dealers in my area who has sold GloFish in the past," the reader wrote. "None of them had heard of a license that would not allow the fish to be bred, and to their knowledge they did not have to advise anyone of any conditions on the purchase of the fish. I got the impression they sold them just like any other fish, which means you point and say 'I want that one' and make the employee chase it with the net, bag it up, and hope it doesn't die from all the excitement."
So something about the GloFish license doesn't smell quite right. While I don't quite see how Yorktown can copyright a fish, I have no reason to doubt they have a valid patent for the genetic modifications. But if they want to place restrictions on what customers can do with the fish -- or what the fish can do with each other, which is even more problematic -- why hide those restrictions in a EULA on their website that few would likely see?
"I know what they mean with their license - they don't want Joe Fishbreeder to duplicate and sell their creative works, even though in this case they are living creatures, for a profit," the reader wrote. "But I thought it was a new low to have to agree to a EULA to own a pet -- especially if that license doesn't even come with the product like shrinkwrap licenses do. And they leave it open to interpretation whether they would come after me if I were to get a pair of these fish and they mated and had babies. Do I need to destroy the babies? Can I give them away to non-California friends? Does the reproduction of the fish revoke my license to the original fish? Will they come take my fish away? Can you be held to agree to something that is clearly outside of your ability to control? All of that is doubtful but open to interpretation from their license."
I would have loved to put some of the reader's questions to Yorktown officials, but my attempts to lure someone to speak for the company got no nibbles. But there's one question we can try answering on our own. How much longer will be before the birds, the bees, and all the fishies in the seas have to check the fine print to see what they are licensed to do today?
Read and post comments about this story here or write me directly at Foster@gripe2ed.com.
8:50:46 AM 
|
|
