My relationship (as a buyer) with the seller is simple and short-term: we exchange things of value and we’re done. That, by itself, is a great engine of progress—all you need to buy things is money. You do not need to be of a particular religion or a social class, you do not need to show good moral character, you do not need a license from authorities...
If the seller wants a full-blown contract where I obligate myself to, for example, not to do certain things with his products, he is welcome to offer me such a contract (these obligations, of course, would impact the price I’m ready to pay).
If I am looking for a cucumber to use as a dildo, do I really need to fully disclose that fact to all the little old ladies at the farmer’s market? I am pretty sure they would not sell me cucumbers for that purpose X-D
If the seller wants a full-blown contract where I obligate myself [...]
But the seller does, and that is in fact what you are being offered, in both the cases we’re talking about[1]. When you buy a ticket for air travel there’s a big long list of terms&conditions that you have to say you’ve read and agree to before you can actually buy the ticket. When you “buy” a piece of software there’s again a big long licence that (among other things) clarifies that you do not in any useful sense own the software—you haven’t bought it, you’ve bought a licence to use it in particular ways—and again there are lots of conditions on it.
And yes, no doubt these obligations impact the price you’re ready to pay—just as they impact the price the seller is ready to accept.
In the intellectual property case that’s basically irrelevant—I can download a piece of software or, say, a movie without agreeing to any contract, but it still will be illegal for me to redistribute it.
With the air ticket you do agree to a contract, but here you need to dig a bit deeper.
Not all contracts are created equal. There are basically two kinds. The first kind is a contract you actually negotiate and fully understand, one where what lawyers call “the meeting of the minds” occurred. Let’s call it a negotiated contract. The other kind is known as an adhesion contract and let me quote:
A standard form contract drafted by one party (usually a business with stronger bargaining power) and signed by the weaker party (usually a consumer in need of goods or services), who must adhere to the contract and therefore does not have the power to negotiate or modify the terms of the contract.
These two kinds of contracts are different, both legally and morally. Courts, for example, are generally hesitant to rewrite the terms of negotiated contracts, but have much less scruples about changing or just throwing out parts of adhesion contracts.
Generally speaking, adhesion contracts are not so much about setting out rights and obligations of the parties to the contract, but rather about shifting the balance of power in the possible future disputes.
Most everyone breaks adhesion contracts all the time because they are essentially designed to be broken so that the consumer always ends up the guilty party and pressure can be applied to him. It’s just exercise of power, is all.
I can download a piece of software [...] without agreeing to any contract
Well, sure. And if someone wants to sell you a car but only if you sign a contract saying you’ll never drive it over 40mph or something, you can always steal it instead. (I am not suggesting that illegal software copying is the same as theft in any respect other than that both are illegal.) Why is this relevant?
adhesion contract
Yes, I agree, adhesion contracts are icky and often unreasonable and widely ignored. But it is still the case that with both software and airline tickets, the seller is offering you not a straightforward sale but a contract with all kinds of terms on it, and they are setting their price on the basis of offering you the one rather than the other.
Perhaps I’ve lost track of what your actual argument is here. I think what it boils down to is this: “Contracts of adhesion are nasty and unfair, and I therefore consider myself free to ignore them. The restrictions on how I can use an airline ticket or a piece of software are contained in contracts of adhesion. Therefore there’s no moral objection to my ignoring them.” Is that right?
(For my part, I dislike contracts of adhesion as much as anyone, but am unconvinced that their unpleasantness is much justification for ignoring their terms.)
Whether I feel free to ignore certain terms of adhesion contracts depends. There is no bright line and I tend to deal with these issues on a case-by-case basis.
My relationship (as a buyer) with the seller is simple and short-term: we exchange things of value and we’re done. That, by itself, is a great engine of progress—all you need to buy things is money. You do not need to be of a particular religion or a social class, you do not need to show good moral character, you do not need a license from authorities...
If the seller wants a full-blown contract where I obligate myself to, for example, not to do certain things with his products, he is welcome to offer me such a contract (these obligations, of course, would impact the price I’m ready to pay).
If I am looking for a cucumber to use as a dildo, do I really need to fully disclose that fact to all the little old ladies at the farmer’s market? I am pretty sure they would not sell me cucumbers for that purpose X-D
But the seller does, and that is in fact what you are being offered, in both the cases we’re talking about[1]. When you buy a ticket for air travel there’s a big long list of terms&conditions that you have to say you’ve read and agree to before you can actually buy the ticket. When you “buy” a piece of software there’s again a big long licence that (among other things) clarifies that you do not in any useful sense own the software—you haven’t bought it, you’ve bought a licence to use it in particular ways—and again there are lots of conditions on it.
And yes, no doubt these obligations impact the price you’re ready to pay—just as they impact the price the seller is ready to accept.
[1] Though probably not with the cucumber.
In the intellectual property case that’s basically irrelevant—I can download a piece of software or, say, a movie without agreeing to any contract, but it still will be illegal for me to redistribute it.
With the air ticket you do agree to a contract, but here you need to dig a bit deeper.
Not all contracts are created equal. There are basically two kinds. The first kind is a contract you actually negotiate and fully understand, one where what lawyers call “the meeting of the minds” occurred. Let’s call it a negotiated contract. The other kind is known as an adhesion contract and let me quote:
These two kinds of contracts are different, both legally and morally. Courts, for example, are generally hesitant to rewrite the terms of negotiated contracts, but have much less scruples about changing or just throwing out parts of adhesion contracts.
Generally speaking, adhesion contracts are not so much about setting out rights and obligations of the parties to the contract, but rather about shifting the balance of power in the possible future disputes.
Most everyone breaks adhesion contracts all the time because they are essentially designed to be broken so that the consumer always ends up the guilty party and pressure can be applied to him. It’s just exercise of power, is all.
Well, sure. And if someone wants to sell you a car but only if you sign a contract saying you’ll never drive it over 40mph or something, you can always steal it instead. (I am not suggesting that illegal software copying is the same as theft in any respect other than that both are illegal.) Why is this relevant?
Yes, I agree, adhesion contracts are icky and often unreasonable and widely ignored. But it is still the case that with both software and airline tickets, the seller is offering you not a straightforward sale but a contract with all kinds of terms on it, and they are setting their price on the basis of offering you the one rather than the other.
Perhaps I’ve lost track of what your actual argument is here. I think what it boils down to is this: “Contracts of adhesion are nasty and unfair, and I therefore consider myself free to ignore them. The restrictions on how I can use an airline ticket or a piece of software are contained in contracts of adhesion. Therefore there’s no moral objection to my ignoring them.” Is that right?
(For my part, I dislike contracts of adhesion as much as anyone, but am unconvinced that their unpleasantness is much justification for ignoring their terms.)
My actual argument is here :-)
Whether I feel free to ignore certain terms of adhesion contracts depends. There is no bright line and I tend to deal with these issues on a case-by-case basis.