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How Grammar and Commas Can Change Contracts

Published
by
Michael Law
on November 4, 2006
in Business Law, Contract Law and Law
. 0 Comments

From May It Please the Court:

The marriage between contracts and grammar is necessary in order to understand what the parties rights are under those contracts. So here’s today’s grammar/contracts question: how would you interpret the following sentence?

“This agreement shall be effective from the date it is made and shall continue in force for a period of five (5) years from the date it is made, and thereafter for successive five (5) year terms, unless and until terminated by one year prior notice in writing by either party.”

Does it mean: (A) the termination provision applies only to the initial five-year term; or, (B) the termination provision applies to both the initial five-year term and the renewal? Be careful here, your decision will swing one million Canadian dollars to one of the two companies in this dispute, either Rogers Communications or BCE, more commonly known as Bell Canada. One other alternative may be that the termination provision applies only to the renewal.

Here’s a clue: the interpretation may turn on either how it reads in French or a legal grammar rule known as the “rule of the last antecedent.” So far, the regulators ruled in favor of Bell Canada, which wanted an early termination of its contract with Rogers. In response, Rogers filed a 69-page declaration regarding the use of commas, arguing that the termination modified only the renewal five-year term.

As drafted, the modifier seems to apply to the initial term and the renewal. Perhaps the best way to find out what it meant is to ask the lawyer who wrote it, however.

Side note here: there’s no love lost between these two companies, who have been at each other for some time. They’re using commas as swords.

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Does Adobe’s End User License Agreement Allow Them To Audit Your Computer?

Published
by
Michael Law
on November 3, 2006
in Law
. 0 Comments

From The Small Print Project:

I am sure alot can be said about the EULA for the Adobe (formerly Macromedia) Flash Player, especially considering how essential a component it is for anyone who uses the Internet for more than just e-mail.

One reader submitted the following. I’d be interested in hearing about any actual *audits* that have taken place or why this language is included:

Lowpoints: You agree that Adobe may audit your use of the Software for compliance with these terms at any time, upon reasonable notice. In the event that such audit reveals any use of the Software by you other than in full compliance with the terms of this Agreement, you shall reimburse Adobe for all reasonable expenses related to such audit in addition to any other liabilities you may incur as a result of such non-compliance.

Means: We get to check your computer to see what you are doing and if we don’t like it, we can change it around until we do.

Highpoints: That IF I installed it, I would be able to see whatever pretty pictures on the internet that Macromedia allowed me to see.

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University of Southern California Course - Pwned: Is Everyone On This Campus a Copyright Criminal?

Published
by
Michael Law
on October 31, 2006
in Law and Law School
. 0 Comments

New undergrad class at the University of Southern California about DRM, EULAs, copyright, technology, and control in the 21st century, called “Pwned: Is everyone on this campus a copyright criminal?”

The class is being offered as a COMM499 class, open to any student on campus. The main class assignment will be to work through Wikipedia entries on subjects we cover in the class, in groups, identifying weak areas in the Wikipedia sections and improving them, then defending those improvements in the message-boards for the Wikipedia entries.

From boingboing.net:


Every garden has a snake: computers aren’t just tools for empowering their owners. They’re also tools for stripping users of agency, for controlling us individually and en masse.

It starts with “Digital Rights Management” — the anti-copying measures that computers employ to frustrate their owners desires. These technologies literally attack their owners, treating them as menaces to be thwarted through force majeure, deceit, and cunning. Incredibly, DRM gets special protection under the law, a blanket prohibition on breaking DRM or helping others to do so, even if you have the right to access the work the DRM is walling off.

But DRM’s just the tip of the iceberg. Every digital act includes an act of copying, and that means that copyright governs every relationship in the digital realm. Take a conversation to email and it’s not just culture, it’s copyright — every volley is bound by the rules set out to govern the interactions between large publishing entities.

Playing a song for a buddy with your stereo is lawful. Stream that song to your buddy’s PC and you could be facing expulsion and criminal prosecution.

Every interaction on the Web is now larded over with “agreements” — terms of service, acceptable use policies, licenses — that no one reads or negotiates. These non-negotiable terms strip you of your rights the minute you click your mouse. Transactions that would be a traditional purchase in meatspace are complex “license agreements” in cyberspace. As mere licensors, we are as feudal serfs to a lord — ownership is conferred only on those who are lucky enough to be setting the terms. Our real property interests are secondary to their “intellectual property” claims.

When the computer, the network, publishing platforms, and property can all be magicked away with the Intellectual Property wand, we’re all of us pwned, 0wnz0red, punkd. Our tools are turned against us, the law is tipped away from our favor.

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