Monday, February 08, 2010

Contracts, Warning Labels, and Liability Releases

Photo credit: Don't Do It from brettneilson

Addressing a meeting of the American Association for the Advancement of Science in 1931, Alfred Korzybski said "The map is not the territory." A map is, of course a piece of paper covered in lines and printing. When I hiked the back country, I fervently hoped that my topographical map was a faithful representation of the trails I followed and the hills I had to surmount. On at least one occasion, I followed a trail to the summit of the Squaw Valley ski area, only to learn that the return trail I had planned to use was on the other side of an unscalable cliff. I read the map well enough, but it did not include sufficient detail to alert me to a cliff that was undeniably there.

In the same sense that a map is not the territory, a written contract is not an agreement backed by commitment and good will among those who sign it. For millenniums the most solemn pacts, treaties, and contracts have been made and then broken. Nonetheless, we are using more and more contracts of greater and greater complexity. The contracts have become so complex and lengthy that even an expert lawyer has to study one long and hard to deliver an opinion on its applicability to a specific situation. Any two lawyers might easily disagree. Furthermore, contracts are often signed by folks without access to legal counsel. Worse still, contracts are often signed by at least one party who has not read it at all.

Software can be expensive to create and cheap to copy. Consequently, buyers are required to sign a legal agreement regarding making copies and terms of use. Very few of buyers read the terms of use. The percentage is likely so small as to approximate zero.

Consider the Microsoft Service Agreement. Those who buy Microsoft products must accept it. The agreement is 12 pages (6594 words) long. Plus the main agreement refers to ancillary agreements, such as the 6 page Microsoft Privacy Policy. The privacy policy references the Microsoft Anti-Spam Policy, a mere lightweight at 460 words. These agreements include far more than a prohibition on copying the software. There are limits on Microsoft's liability. There are conditions on how the software may be used.

Similar agreements are required by most companies who sell software.

There is no value in those agreements. U.S. software is presumed to be copyrighted once it is written. Besides, what sense does it make to require someone to indicate agreement, when it is well known that they have virtually no knowledge of what they are signing.

The same applies to the "liability releases" that we sign continually. My sons loved paint ball competitions. To enable them to participate, I sometimes signed releases that said I couldn't sue the paint ball range, even if they harmed my son on purpose! That sort of release would be useless in court. We cannot sign away another parties's responsibility to take reasonable safety precautions.

Whether or not an agreement is required, warning labels proliferate. There are incredibly stupid warnings such as "Do Not Place Feet or Hands Under Mower Deck". We see coffee cups with the warning: "This Coffee Is Hot". Many common objects are covered with various warnings, and even if the object cannot support the labels, the same nonsense is included in owners manuals.

Contracts can be a valuable way to insure that the parties involved have carefully considered what they are agreeing to. However, our current plethora of boiler plate contracts, labels, and liability releases have become as ridiculous wall paper covered in print saying "running into this wall at high speed may result in injuries".

Legalese nonsense will continue to proliferate until a few brave citizens or companies dare to do business without it.

Meanwhile, please be aware that reading these blog posts can result in eyestrain, headache, blurred vision, and somnolence. Consult with your health professional immediately if you experience any discomfort whatsoever.

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