Can a virus help fight the fine print in shrinkwrap licenses

(Thoughts by Clifford Neuman - 10/20/02 and earlier)

Are you annoyed by the pages and pages of text you cant understand whenever you install new software or visit certain web cites? Are you upset that you seem to be expected to spend hours reading these agreements to do simple things? I am!

While the legal status of these so called shrink wrap agreements is somewhat in questions, software developers have attempted to change the law through proposed changes to UCITA declaring such "agreements" binding. Fortunately, few state legislatures have passed these changes so far.

The basis upon which such contracts might be argued to be binding is that the individual installing the software or visiting a site was presented with the text of the agreement (even if they had to scroll down 5,000 pages and take six hours of their time to read it all), that they received benefit from entering into the agreement (I guess the benefit was the right to use buggy software), and that they took affirmative action to indicate acceptance to the terms of the "so called" agreement (I'm not a lawyer, this is just my understanding of the issue).

So, what I am wondering, is what would happen to all these "so called" agreements - even in states that have passed the consumer-antagonistic changes to UCITA - if the user did not actually take any affirmative action indicating acceptance - and perhaps didn't even have the opportunity to view the text of the agreement before their software was installed.

But, then, the software wouldn't install, right? Well, suppose that there was software running on the users machine that automatically accepted such agreements without presenting the terms to the user. One counter argument to this claim is that the user must have installed that software to accept such agreements, that that was an affirmative action by the user, and that the user would be bound by agreements entered into by this software that clicked the "I accept" button.

But, suppose the user didn't install this software. Suppose it was a virus, for the sake of discussion, lets call it the "I accept virus". Suppose also that this virus started spreading and most consumer machines were infected. Wouldn't we then have a situation where the user hasn't seen the license terms that the manufactures claim they agreed to, and could the user be bound by those terms? Of course, the virus probably infected the users system because of poor system design by the very same vendors that are trying to claim the users agreed to their onerous terms.

I really don't know how such a situation would play our in court if vendors actually tried to enforce the terms of an agreement that was never seen by the users. It is interesting to thing about.