Sneakwrap abounds
Readers say restrictive license agreements have been showing up in some odd places for a long time
OK, SO I’M a little slow.
While I already realized that sneakwrap tactics have spread well beyond the software industry, reader responses to recent columns on shrinkwrapped books and deactivated PDAs make it clear that I had no idea just how far it’s gone.
“I love your column, but I think perhaps you’re a little behind the reality of the times,” writes one patient reader. “It’s not just the high tech software/hardware industry that has gotten predatory with their customers. As the old carnival barker used to proclaim, ‘You pays your money, and you takes your chance.’ ”
That reader proceeds to regale me with recent examples from her own life in which she had been tripped up by the fine print, including that her cellular phone service arbitrarily switching her phone number to a nonlocal area code, a surgeon giving her permission forms rather than answers to her questions, and even uninstallable hurricane shutters for which she had no recourse.
An example that she had found particularly frustrating involved a $2,000 professional-grade sewing machine that came with a 35-year warranty. But when a light bulb on the touch-screen controls burned out, “the entire board had to be replaced, costing $750. The repairman airily stated they have to replace those all the time. Warranty? Oh, that’s an electrical part.” The warranty, the fine print said, only covered mechanical parts.
Other readers had multiple examples. “Manufacturers have tried to restrict customers for decades, at least,” writes one reader who described the sneakwrap techniques used for years by medical equipment manufacturers and college textbook publishers. “I have an automobile battery charger that is 40 to 80 years old. It has one vacuum tube, made by GE. There is a license printed on the charger. It says that this tube is licensed for use in chargers, but is not licensed for use in a radio. My uninformed suspicion is that this sort of thing was eventually ruled nonenforceable by some court.”
The restrictions imposed by sneakwrap agreements know few bounds. “I bought some plants a few years ago that were patented varieties,” a reader writes. “They had a tag saying ‘asexual reproduction prohibited’ on them. In the book field, IBM used to license certain software manuals, rather than sell them. This was [the old IBM mainframe operating system] around 1982-1984. It was a pain at the time, as getting enough copies for the systems group was always hard.”
“I just returned a digital camera because it had a hardware shrinkwrap license,” another reader writes. “They said that anyone in my household could use it but I couldn’t lend it to anyone else. There were many other silly things also, like I agree not to try to return it to the company but I could try my luck at the place I purchased it. One interesting thing, if I purchased it as a gift, I could give it to the person and the warranty would still be valid. How nice of them.”
Readers were particularly fascinated and appalled by the implications of books with shrinkwrapped licenses. Regarding the doctor who received a pharmaceutical book in the mail he hadn’t ordered, numerous readers pointed out the fact that the restrictive license accompanying it ran afoul of postal regulations that allow recipients of unsolicited goods to treat them as a gift. They wondered, though, what would happen if publishers or distributors of retail books were to start slapping similar license agreements on their products to prevent resale by customers, lending by libraries, or disparagement by critics. “It’s bad enough that DRM [digital rights management] is making CDs and DVDs unusable,” writes one reader. “What’s next? DRM-enabled books printed in disappearing ink?”
Interestingly, it turns out this is an issue that came up way back in 1903. Knowledgeable readers pointed out that at that time, the U.S. Supreme Court ruled against publishers that were trying to prevent resale of their books by attaching notices that said the books were actually licensed, not sold. So it certainly seems that, at least as far as books go, sneakwrap has no chance. Right?
Maybe. But then why are we suddenly seeing so many book publishers distributing their products under shrinkwrap-type license agreements? Of the additional examples readers pointed out, I found one particularly interesting: the Maryland Lawyers Manual, published by the Maryland State Bar Association. The manual, which provides a membership directory for the association and other legal information, is a membership benefit for dues-paying members of the association but is also available for sale to nonmembers. And it comes with a fairly innocuous but nontransferable license agreement.
What’s the point? Maryland State Bar Association officials would only tell me that the license agreement provides them with some extra protection, and would not say yes or no on whether they intend to prevent the manual from being resold or given away. But the reader who sent it to me, a Maryland-based attorney, wasn’t surprised. “A license on tangible goods was pretty much what I expected a consequence of UCITA [Uniform Computer Information Transaction Act] to be,” he writes. “Maryland is a UCITA state.”
I know. And I know UCITA’s drafters have said time and time again that it won’t cover books, and that it won’t undermine federal copyright law. But clearly there are sneakwrap-license crafters out there who think otherwise. They may fail when challenged, but we can be sure they’ll keep on trying.
After all, they’ve been at it for at least a hundred years, so they’re not going to stop now. Books may be the last product category where we lose our fair use rights, but that makes it all the more disturbing to see that those rights are already under attack.
