Agreement?

Monday, June 21, 2010 by Dick.

I am not a lawyer. Nor do I play one on TV. On the other hand, I am uniquely qualified to offer this legal advice because I wrote a rental contract while in college that the landlord’s lawyer could not break. Sam the Landlord learned from that experience (he never signed a contract again that his own lawyer hadn’t written) and I learned how much fun teaching can be.

[Editor’s Note: gekko and I are following in the footsteps of 60 Minutes’ Shana Alexander and James Kilpatrick in paired blog articles. After reading this article, please go read title for the counterpoint argument.]

Over on the other blog, gekko was spurred by a Safari program called Reader.

Reader is really neat. It strips the page of all the advertisements, sidebars, and inconsequential stuff, and pops up just the text in a translucent overlay. That scares the advertisers who believe they have a contract with the viewers, readers, or users on the site; seeing all the ads is the price they charge us to see the content.

gekko thinks the contract is not between us readers and the fodder provider. The contract, she says, is only between the content provider and the advertiser.

Contract is an important legal term. A contract is actually “just” an agreement between thee and me to trade something I have for something you have. To be valid, the contract must be (1) enforceable by law and (2) equitable.

Trade? That sounds like business and it is. I might have a book you want. You might have a dollar I want. We can contract to trade my book for your dollar and both walk away happy. Even if our contract is no more than this conversation:

“Hey, you got that book?”

“Yup, Cost you a buck.”

That fulfills the basis for a legal contract.

<pedantic mode> Both of us must be old enough and not impaired to buy or sell that book and the contract must be neither trifling, indeterminate, impossible, or illegal.

As long as the good or service we trade is legal, our oral agreement can constitute a binding legal contract. In practical terms, written contracts are more enforceable because they list all the terms we decided on at the time we made the agreement.

Enforceable means that we each promise to do something for the other guy and that the other guy has specific legal remedies if we breach that promise. A “compensatory remedy” means the Sheriff will make me pay what I said I would and maybe more besides. An “equitable remedy” usually means the Sheriff will stand over me to make sure I perform what I agreed to do and reneged on.

Equitable means fair to both parties. A court would accept as equitable the sale of a used copy of Pocket Shakespear for a buck — both parties benefit more-or-less equally. A court ought not accept as equitable the sale of an original signed manuscript of Macbeth for a buck — here the seller takes it in the ear. </pedantic mode>

Back to the Safari Reader.

Reuters reports that “the Internet is [now] by far the most popular source of information and the preferred choice for news ahead of television, newspapers and radio, according to a new poll in the United States.”

There are two contracts in play. In the first, the advertiser contracts with the Internet content provider (the fodder we want to read) to place the ads and other links on the content page so the viewer/user will see them. gekko contends that’s The One. In the second, the viewer/user agrees to view the ads and other links on the page in order to see the fodder we want to read. I maintain that’s The Other One.

In many ways, this is exactly the same model we have used for “free” radio and television broadcasts since 1920 when KDKA went on the air in Pittsburgh.

gekko believes the second contract does not exist, partly because we the viewer/user never agreed to it.

<pedantic mode> An implicit contract (A.K.A. an “implied-in-fact contract”) is one agreed by our conduct, rather than by the words we say. The U.S. Supreme Court defines it as an agreement “founded upon a meeting of minds, which, although not embodied in an express contract, is inferred, as a fact, from conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding.” </pedantic mode>

So. Does watching American Idol on Fox or reading the New York Times online mean we agree to watch or read the commercials that support it?

Yes.

TANSTAAFL (There Ain’t No Such Thing as a Free Lunch). The writers and publishers of the information we absorb so easily offer it in exactly the same way I sold you the book and for exactly the same reason you go to work each day. Paying the writer is at least as important as paying your mechanic to tighten the lug nuts when he changes a tire on your car.

I traded the book for a buck. You trade your hours at desk or workbench for, I hope, more than a buck. You may have no written contract with your employer but your boss offered you the position, salary, and appropriate working conditions in return for your appearance on time and performance of the assigned duties. That’s an implicit contract.

VCRs, DVRs, other recording devices, and now Safari’s Reader allow us to breach that contract with the broadcaster or website. The fact that we can breach the contract does not mean we should breach the contract any more than we should rob the gas station down the street just because the President did.

The contract hinges on enforceability but in this day of a Democratic President and Congress ignoring the law or changing it to fit their whims, I would not be a bit surprised to find the Library police reassigned to ad watch duty.

[Editor’s Note: gekko and I have written paired blog articles. After reading this piece, please go read title for the counterpoint argument.]

I have no advertising on this page, so there is no implicit contract that you, dear reader, will pay for these words. OTOH, donations via the Tip Jar are always welcome.

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