Wednesday, June 24, 2015

Making legally-unenforceable contracts with impunity

I am most certainly not a lawyer, and some of the things I'm writing here may be wrong, so keep that in mind.

Many companies have a tendency of claiming rights they don't legally have, or putting restrictions on their clients that can't be legally enforced. As a concrete example, Finnish law is unusually clear on the question of whether you are allowed to make backup copies of software you have a current legal right to use: Absolutely yes. Moreover, any usage license that says otherwise is explicitly mentioned to be unenforceable (in other words, it has no legal force behind it, and can't be enforced by law, even if you fully agree with the license. You agreeing with the license does not override your legal rights.)

Yet many software usage licenses explicitly forbid making backup copies of the software. As said, even if you agree with the license, you can still ignore that limitation and make as many backup copies as you want. (Your right to those copies ends when your rights to the original end, naturally.)

Another, perhaps more minor, example is that, at least some years ago, many websites had a usage license that stipulated that you can't deep-link to any of the sub-pages within the website, only to the main page. Again, this is legally unenforceable basically in every country. It is unenforceable here (which is especially egregious when it's a Finnish website of a Finnish company, and the usage license clearly refers to Finnish law.)

This sometimes goes beyond just generic usage licenses. Many companies sometimes make personal contract agreements with individuals, where they claim rights or try to put restrictions on that individual, that couldn't be legally enforced even if said individual would break the agreement on those points. For example, certain non-disclosure agreements in certain contracts can be legally dubious, if not even outright unenforceable. (For instance, agreements of the kind "we'll pay you money for making a positive review of our product, and you agree to full non-disclosure of this contract, ie. you won't tell anybody that you have made this contract with us.")

This practice is very deceptive. Most people who read the agreement get the impression that by agreeing with it, they are bound to obey those stipulations, and might not know that legally they don't have to. Thus companies get extra benefit from this, effectively bypassing the law, and the rights of the individuals. This is gaining (often financial) advantage by deception; in other words, pretty much the definition of fraud.

The thing is, as far as I know, none of this is illegal. In other words, companies do not get into any kind of trouble for claiming rights they don't legally have, or putting limitations on their customers or clients that they can't legally enforce. They can deceive their customers and clients with impunity. The law doesn't punish companies for doing this (except perhaps in the most egregious high profile cases.) There is no law that says that companies can't do that (there are only, at most, laws that say that such stipulations are null and void, and can't be enforced, but without any repercussions to the company.)

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