The whole license agreement/contract scam is a mess. The entire ‘click-wrap’ agreement where the company ‘reserves the right to change the terms at _their_ discretion’ is so transparently unfair it should have been outlawed ages ago.

Sure, two companies with their teams of on retainer lawyers should have the freedom to negotiate contracts between themselves (within limits of course, no slavery, murder for hire, etc.). The problems occur when it’s a company with it’s team of on retainer lawyers writing a take it or leave it contract where they get all the rights and the consumer gets all the limitations.

There are some people who will always try to excuse this by claiming that if you don’t like the terms you don’t have to do business with them. That’s an unproductive cop out on many levels.

First, in many cases the consumer isn’t even aware of the terms at the time of sale (licenses buried in the box anyone?). Next it’s couched in nearly impenetrable legalese that requires a law degree to correctly reinterpret how they have twisted the english language to the extent that words you thought you knew mean the exact opposite. Then there’s the ever popular right to rewrite the agreement at any later point in time so that the agreement that you agreed to isn’t anything like the one that’s being enforced against you. Finally there’s the fact that when one group of over achieving lawyers finds a new way to take advantage of the consumer, everyone else rushes to do the same thing (just look at how fast AT&T’s ‘you can’t file a class action suit’ language has spread).

Consumers should have certain rights in the market place (such as resale, warranty, returnability, no retroactive license changes, ability to sue for damages, etc.). In general no click-wrap or other point of sale licenses should be allowed. If there ever turns out to be an exception (and I can’t think of one at the moment) in no case should they be allowed to abridge any of the guarantied rights, no matter what a piece of lawyeresse claims to say. No contract, regardless of the parties should grant one party the unilateral right to change the terms and still be binding.

These non-disparagement clauses are just the latest in a long list of wrongs our current system allows companies to foist on the public.

The California law making disparagement clauses illegal is like the ‘Unlocking Consumer Choice and Wireless Competition Act’. In both cases government is outlawing a symptom of a larger disease. In the cell phone case the disease is the overreach of the anti-circumvention portion of the DMCA. It shouldn’t apply to cases where there isn’t a breach of the copyright act (fair use, coffee DRM, etc.) Congress has decided to make an attempt to fix a symptom of the problem (cell phone unlocking) as opposed to addressing the larger problems with the DMCA. In a similar vein, instead of addressing the problems of applying business to business contract law to the general public, they have passed a law to address one symptom, clauses that penalize people who write or say negative things about a company.

In both cases the people who are supposed to be representing the public are unwilling to tackle the larger problem. Most likely to avoid upsetting the interests they _actually_ do represent, businesses that contribute large amounts of money to them.