How Do You Violate an Agreement You Never Signed?

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As Nick notes, Tennessee Attorney General Paul Summers recently sent country music performer Gretchen Wilson a letter suggesting that her habit of whipping out a can of Skoal smokeless tobacco while performing her song "Skoal Ring" could be a violation of the 1998 agreement that settled state lawsuits against the leading tobacco companies. Among other things, the agreement forbids marketing tobacco products to minors. But Wilson was not a party to that agreement, so nothing in it is binding on her. Although U.S. Smokeless Tobacco Company, which manufactures Skoal, did sign the agreement, it never paid Wilson to promote its product, as Summers acknowledges. Hence using a Skoal tin as a prop did not violate anything but Summers' sensibilities.

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  1. Well, I’m sure glad that the Tenn. AG has solved every other single crime problem in that state, so that he can start worrying about crap like this. Must be a paradise there…

    The one time I tried chewin’ tobakky, back when I was 14, I managed to swallow it. Needless to say, I wasn’t persuaded to take that up as a habit! 🙂

  2. I managed to swallow it.

    Not for long, I bet.

  3. No, I managed to keep it down, but my stomach felt like fire ants had taken up residence.

  4. …using a Skoal tin as a prop did not violate anything but Summers’ sensibilities.

    Unfortunately, in this day and age that’s all the pretext he needs…

  5. Once the trial lawyers get a hold of this, Wilson will owe $2 billion dollars and be forced to make advertisements telling people not to buy her music.

  6. There is so much disingenuous and dangerous crap in that press release that I am indeed — disgusted.

    “It is my job to see that the tobacco companies abide by the Master Settlement Agreement. It appears that is NOW the case in this instance.”

    Well, since it NOW appears that the tobacco companies didn’t have squat to do with this situation, it would NOW appear that using the word NOW (implying that before Summers got involved, something nefarious was going on) is misleading.

    “This quick and positive response speaks well of her as a professional artist, as a good citizen, as a parent and as a role model for youth.”

    Why does a state AG care about any of things? What if my goal in life is to be an unprofessional artist, a bad citizen and parent, and a poor influence and role model for youth? Can Summers come get me?

  7. Well, the press release makes it sound like she agreed to stop showing her can voluntarily, without being warned that she “may be” violating the settlement. The original story would seem to disagree on that point. Is there a copy of the letter from the AG around somewhere?

  8. In answer to the question on the headline, as almost any software user who has dealt with the Business Software Alliance can tell you, yes, you can violate an agreement you never signed. Almost all “shrink-wrap” software licenses are legally binding. Also, look at the trouble people have gotten into by using Google Maps in unauthorized ways.

  9. Shawn: Almost all “shrink-wrap” software licenses are legally binding.

    Actually, last I heard that has never been adjuticated (settled in a court of law). The only cases which have gone to a court descision were based on separate contracts (which were signed) or on non-contract law (like copyrights). So the actual legal status of shrinkwrap agreements is somewhat unclear.

    If anyone knows different I would appreciate some links, as this is a subject I follow.

  10. Jack,

    I had heard (perhaps on Slashdot in one of their interviews with a lawyer) that so long as the license was “reasonable,” it was considered valid. By reasonable, I took to mean, one user per license, no disassembly, decompiling, or reverse engineering, no warranty or fitness for any use, no passing any blame for problems caused by use of the software onto the developer or company, yada, yada, yada.

    My memory isn’t too good, and your information could very well be more accurate than mine. I would take my words with a Lot’s Wife-sized block of salt. The story my memory is based on may have referred to copyright law that you mention. I would just rather not be the test case and find myself bankrupted and/or homeless. My wife would be SOOO PISSED.

  11. And who wears the pants in your family, Shawn? 😉

    Totally joshing with you…it’s about time for me to go home!!!

  12. Lowdog,

    We both do, but I’m much more of a wimp, there. 🙂

    Jack,

    I found this link after typing in legal validity shrink-wrap software license into Google. It is mostly about defective programs and the problems they cause, but it contains these interesting paragraphs:

    EULAs remain somewhat controversial among individual end users, but judges tend to view them as legitimate agreements that are just as valid as any other form of a contract. Probably the most influential case has been ProCD v. Zeidenberg, in which the 7th U.S. Circuit Court of Appeals in 1996 upheld a “shrink-wrap” agreement.

    Written by the noted jurist Frank Easterbrook, the opinion said: “ProCD proposed a contract that a buyer would accept by using the software after having an opportunity to read the license at leisure. This Zeidenberg did. He had no choice, because the software splashed the license on the screen and would not let him proceed without indicating acceptance.”

    There are other links on the Google page, too, which may be more enlightening.

  13. Then again, if I knew the format of the files that are stored on the installation CD/DVD, and wrote my own extraction and installation software, there might be an argument that I never signed an EULA. Of course, that’s pretty shady behavior, and is probably illegal, also (a copyright violation, if nothing else.) Why go to the trouble and risk when there’s so much F/OSS out there?

  14. Most commercial software requires you to indicate that you accept the EULA before it will install. Other agreements, like the GPL, simply say that if you use the software, you’re bound by their rules.

    Unless cans of Skoal are labeled with warning saying you can’t use them in performances, these situations are not alike.

  15. crimethink

    showing her can

    *snigger*

  16. I violate the Constitution (as interpreted), my State Con, and pages of municipal code every day. I didn’t sign any of those documents, yet I am considered bound and to have given implicit consent. Breakin’ rules is easy; living right takes diligence.

  17. Dynamist – eh? Unless you’re an elected official, how do you violate the Constitution, unless maybe you’re committing treason? What in there is a limitation on the individual citizen?

    As for the municipal code thing, I have two reactions. #1 is that the entire concept of “implicit consent” is bullshit; it’s an idea promulgated by those with power to encourage a culture of obedience (on the part of those without power) and unaccountability (on the part of those with).

    But that’s actually the less important reaction. The more important one is that consent, in our society, has nothing to do with whether you’re bound by the municipal code. Suppose you were to read every page in the code, then stand on the village green and publicly announce that you do not consent to it, publish your stance in the leading newspapers for thirty days running, put ads up around town stating your stance, etc. Then no one could plausibly argue that you consented, implicitly or otherwise. But you’d still be considered to be bound by the code. Why? Because it doesn’t have anything to do with whether you consent or not: in a democratic society, you are held to be bound by your neighbors’ beliefs, consent or no. If you argue that by living in such a society, you have implicitly consented, published views or no, then I would argue that “consent” means nothing since it is indistinguishable in its effects from a society ruled purely by force.

  18. Eric the .5b,

    As I’m sure you’re aware, the GNU GPL only comes into play if you decide to distribute software covered by that license, not if you simply use that software. There may be other Open Source licenses that have other requirements, but I’m not that aware of them.

  19. Eric the .5b, and Shawn Smith,

    The way that Open Source/free software is implemented pretty much precludes a “shrinkwrap license”. You actually need no licensce to use the code at all, you only need one to copy the code (due to basic copyright law). There is much confusion over this but technically a EULA is not a license but a contract, and if you do not sign a contract you are not bound by it. On the other hand licenses are binding even if you don’t sign, as they allow you do perform some otherwise legally disallowed activity.

    The simplest example, you need a license to trespass on my property, without such a license you can be thrown in jail (no need for you to sign). If you disagree with the terms stay of my property.

  20. JD: I don’t agree with implicit consent concept/assumption, but my disagreement doesn’t mean squat when the guys with guns tell me I can’t rent my backyard to several immigrant families. You’re largely right about an individual’s relationship to the Consitution. One violation I can and do make is treasonous and seditious acts. I’m spouting off all the time about how government is a waste and should be eliminated. I’m just not as diligent and outspoken as Vanzetti.

    That my predjudices are reflected in my business dealings is not strictly a Constitutional violation, but I’ll take partial credit since the laws I break were written solely to express one or more of the amendments.

  21. Someone remind me to vote against this jackass attorney general, should I ever have the chance.

  22. “Dynamist – eh? Unless you’re an elected official, how do you violate the Constitution, unless maybe you’re committing treason?”

    Owning or trafficking in slaves is another way Dynamist could be violating the Constitution.

  23. Merle and Johnny would have told the AG to go to hell. Today’s country singers kiss government ass.

  24. Unless there is a license agreement on the side of that Skoal can that incorporates the multi-state tobacco settlement, there is no analogy here. The issue is not whether you signed something, but whether you are a party to the agreement (written or otherwise). The singer here was not a party to any relevant agreement, and had no obligation to do jack in response to the AG’s letter. I am becoming more of a lunatic libertarian by the day. Our government is completely out of control with this kind of stupid shit.

  25. As I’m sure you’re aware, the GNU GPL only comes into play if you decide to distribute software covered by that license, not if you simply use that software.

    Yes, but you’re bound by it upon receipt.

  26. Yes, but you’re bound by it upon receipt.

    Actually, no. Having received the software, you are allowed to do with it as you wish within the legal bounds of what you may do with a computer program copyrighted by someone else, just as if you had bought it.

    If you do not copy GPL software beyond the limits of what is considered acceptable under fair use (ie. installing it on your computer, running it, taking backups) you are not bound by any license conditions.

    If you want to distribute the software or make a derivative work of it – these lie outside the bounds of what you are implicitly allowed to do with software you acquire. Thus, you must abide by the software maker’s terms and conditions for so doing, just as you would if you bought your software from Microsoft.

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