Contracting Shrinkage

February 5, 2007 | Filed Under Litigation, Technology 

Does EULA stand for Everyone’s Upset at Legalese Always?

Cory Doctorow knows what EULA means and turns an insightful eye to the shrink-wrap variety of these consumer “agreements” in Information Week. He wonders if litigation is looming over some of the more excessive examples of such adhesion contracts masquerading as software licenses:

We seem to have sunk to a kind of playground system of forming contracts. Tag, you agree! Lawyers will tell you that you can form a binding agreement just by following a link, stepping into a store, buying a product, or receiving an email. By standing there, shaking your head, and shouting “NO NO NO I DO NOT AGREE,” you agree to let the other guy come over to your house, clean out your fridge, wear your underwear and make some long-distance calls.

(I think this is an example of the objective theory of contracts my professor made me aware of through a Socratic bludgeoning with Lucy v. Zehmer).

Then Mr. Doctorow gives an example of the license that accompanies Microsoft’s new Windows Vista OS:

For example, Vista, Microsoft’s new operating system, comes in a rainbow of flavors varying in price from $99 to $399, but all of them come with the same crummy terms of service, which state that “you may not work around any technical limitations in the software,” and that Windows Defender, the bundled anti-malware program, can delete any program from your hard drive that Microsoft doesn’t like, even if it breaks your computer.

And finally speculation on what business might be forced to do if it took all EULAs seriously:

If you wanted to really be careful about this stuff, you’d prohibit every employee at your office from clicking on any link, installing any program, creating accounts, or signing for parcels. You wouldn’t even let employees make a run to Best Buy for some CD blanks — have you seen the fine print on their credit-card slips? After all, these people are entering into “agreements” on behalf of their employer — agreements to allow spyware onto your network, to not “work around any technical limitations in their software,” and they’re agreeing to let malicious software delete arbitrary files from their systems.

Law is at its worst when it does what it can rather than what it should.

Clearly there should be some shrinkage when it comes to over-reaching EULAs and other consumer contracts. C’mon, people, everyone in the pool.

How a GC Selects a Law Firm

February 1, 2007 | Filed Under Law Firm Trends, Selling the GC 

This is an issue near and dear to the hearts of engaged managing partners.

One answer is given in an interview in Massachusetts Lawyers Weekly with former Cognex GC Michael Steir. To him, it’s all about the lawyers:

Q. Does your company look for a law firm or a particular lawyer?

A. I don’t seek out law firms; I seek out lawyers within law firms. What I tend to do is interview several law firms for a project. If it’s [for] major patent litigation, I would go and talk with two, three or maybe four law firms and decide, based not on the managing partner but on the people who would actually be working on the project, trying to judge their willingness to work in other than a legal mode and, most importantly, their willingness to work with the client as a team.

So, when seeking to build a firm, is it better to merge with another or just pick some of these?

Thank you sir, may I have another?

Update: Hmmm, certain minds think alike…

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