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Re: Warranty disclaimers and yelling

On Tue, May 18, 2004 at 11:11:36PM -0400, Glenn Maynard wrote:
> On Tue, May 18, 2004 at 11:02:17PM -0400, Adam Kessel wrote:
> > My understanding is that this just provides you with evidentiary support
> > that the warranty disclaimer is unequivocal.  As a counterexample,
> > imagine a product with the warranty disclaimer in 4 point font on the
> > inside of the packaging -- a court would likely find the disclaimer
> > ineffective and impose an implied warranty of merchantability.  If you
> > want to disclaim this warranty, it's in your interest to set it up to
> > make it harder for a consumer to argue that she wasn't aware of the
> > disclaimer.  
> > 
> > I'm not aware of any particular case that hinged on mixed case versus
> > all caps, but it does seem to be the standard way to make the
> > disclaimer.  
> > 
> > Note that Uniform Commercial Code ? 2-316 requires any disclaimer of the
> > implied warranty of merchantability to be conspicuous: 
> (I thought SCREAMING CAPS was a standard way of saying "this text isn't
> important; skip it, it's hard to read anyway".)

I am tending to do the same, even though I know that it is
actually intended as the only typewriter/ASCII/e-mail compatible
way of doing "bold" text.

> Hmm.  I tend to skip warranty disclaimers when reading licenses--not a
> very good habit, but I'm probably not alone.  It makes me wonder if any
> licenses have snuck restrictions in by placing them in caps near the
> warranty disclaimer, so nobody would actually read it.

I have recently seen a few (100% non-free) licenses where other
onerous requirements were also emphasized with ALL CAPS, such as
(paraphrased): "You agree to let us wiretap everything you do,
for this and that stupid reason".

The general gist seems to be that any clause that takes away
rights that would have been yours without the license needs to
be emphasized and in-your-face, like a big sign saying "abandon
all hope, yea that enter here".  But not clauses that merely
detail how many rights you are granted or not granted, and on
what general conditions those permissions are granted.


This message is hastily written, please ignore any unpleasant wordings,
do not consider it a binding commitment, even if its phrasing may
indicate so. Its contents may be deliberately or accidentally untrue.
Trademarks and other things belong to their owners, if any. IANAL, TINLA.

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