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Ways and Memes

Dubious Achievements in Legal Drafting

Stanford law professor and intellectual property zealot Lawrence Lessig has put up a longish post on Wal-Mart's new online music venture. In addition to noting some technical glitches -- downloaded songs wouldn't play on his system -- he emphasizes the highly restrictive terms of the agreement that a consumer must accept before downloading, and the manner in which that agreement contradicts the expectations that consumers have historically had when purchasing music (e.g., the expectation that you can make "fair use" of music you have legally acquired, such as by using it as a soundtrack for home videos, incorporating portions into a personal mix tape, and so on). For connoisseurs of legal draftsmanship, however, the highlight of the piece has to be this splendidly self-contradictory sentence, drawn from deep within the Terms of Service agreement:

All Products are sublicensed to you and not sold, notwithstanding the use of the terms 'sell,' 'purchase,' 'order,' or 'buy' on the Service or in this Agreement.
This is cutting-edge stuff. Consider the possibilities if this approach to contractual language were to catch on. For example:
The Product will consist of a bag of small rocks and not an automobile, notwithstanding the use of the terms "automobile," "motor," "vehicle," "motor vehicle" and "BMW" in this Agreement and on signage at any facility at which this Agreement may be executed.
The Worker shall become the property of the Boss, to be dealt with at the Boss's sole discretion and transferable by sale to any other Boss of the Boss's choosing, and shall receive money, food, rest and shelter only when the Boss is so inclined, notwithstanding the use of the terms "employ," "employee," "wages", "benefits" and "freedom" elsewhere in this agreement.
Parse that, if you will, and despair.


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