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Comment by fauigerzigerk | Hacker News Reader

All contracts are artificial constructs. There are no natural contracts. So the question is simply whether the kind of contract Apple has with its customers is legal or not and if it is whether the law should be changed.

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I wonder if there's a name for this class of contracts that seems suspect, some of which are actually illegal and others of which are legal but give people pause more than normal contracts. They mostly seem to have something to do with exclusion or tying, that if you do A you can't do B, and/or if you do A then you must do B.

Various examples that aren't allowed: EULAs that purport to prohibit resale of books (first-sale doctrine), labor agreements that purport to prohibit the employment of members not from the contracting labor organization (union closed shops), deed restrictions that purport to prohibit resale of property to a class of people ("no reselling this house to blacks"), noncompete agreements in some states, exclusivity contracts entered into from a position of market dominance (the Microsoft and Intel OEM cases), certain kinds of explicit tying even when not in a position of market dominance, bequests that contain ongoing conditions on the heirs' behavior (rule against perpetuities), etc.

One example that is also in the "seems related" area but is legal in the U.S.: resale price maintenance, where a manufacturer can prohibit a retailer from selling a product below a certain price. One that's currently being debated is the vague set of issues around "network neutrality", related but not identical to the last generation's debate over "common carrier" status. Gray area: EULAs that purport to prohibit decompilation and reverse engineering.

I know it's a category with vague edges, but it seems like there should be some name for it? These kinds of contracts, even the ones we decide are allowed, seem different in kind from pure exchange contracts of the form, "I give you $100, and you agree to provide me with 2 hours of consulting".

First the first time you use your iPhone you need to accept agreements in iTunes. Second, originally cracking iPhone to install custom firmware was prohibited by DRM, which was bounded to DMCA, and now becomes one of the exceptions.

I think the word is "unconscionable". Or at least that's the term for when a contract is so abusive it is not valid.

The thing is that, as you say as I understand it, whether a contract is considered unconscionable is normally a complex question; for example, terms that are unconscious in a residential real estate contract can be included in a commercial real estate contract because a commercial renter is considered more sophisticated (and so if you rent commercially, you better be sophisticated and count your fingers after every hand shake). One guiding question is whether the signer really knows what he getting into.

By that token also, I believe a number of terms are considered unconscionable if you click through them on a website. I would speculate that if a vendor sent an actual devil who blew smoke out his ears and demanded a video-taped signing in blood celemony, that vendor would have a stronger claim that "the signer knew exactly what he was getting into".

Will Apple employ Devils in the future? I think Microsoft may have them all tied up...

IANAL of course...

   > There are no natural contracts.

Do not kill?

More than almost anything else, killing seems fundamental to nature as I understand nature. I would, in fact, say that "kill or be killed" is THE natural contract.

Oh, please. We are advanced beings with complex neocortexes that are capable of ethical reasoning. Surely we can agree on an system in which we can find solutions to our fundamental needs without resorting to killing one another.

Of course, but said system would be unnatural and artificial. Real, yes - but artificial.

I think your use of the term artificial, while apt in the sense of "not existing in non-human nature," is really banking on a series of connotations of artificial that don't apply to the non-natural sense of artificial. Artificial, for example, connotes: unnecessary, inferior to the non-artificial, superfluous, inauthentic. Your point is really something along the lines of linking an ethical system of non-killing to these connotations, which really have nothing to do with whether ethics can be found in non-human nature (which is, of course, a trivial point).

What really matters is why we should inform our thinking with how animals treat each other.

I think you're either misunderstanding or reading too much into my point, siglesias. I'm not suggesting that "kill or be killed" is a great basis for society or an ethical system. Just like with many other facts of nature, we can and often do improve on them by creating structures and constraints atop those facts we find unpleasant. However, those structures and constraits are inherently manufactured in the strictest sense of the word. Society is just a thin veneer atop a very ugly picture, and it's almost always in our best interests to keep that veneer in place. But it is, ultimately, just a veneer.

Frankly, this has little to do with the original post - I just made my original comment in response to someone saying "don't kill" is an example of a natural contract.

I just think that describing our ethical system as "artificial" is a tremendous misapplication of the term, and I think it would give most people evaluating your statement pause.

On the other hand, I do find my aversion to killing rather natural in the sense that I needn't justify too much beyond my own instinct (and, if you should know, ethics as instinct is the subject of research with promising theories[1], but I'm not even talking about that).

[1] http://en.wikipedia.org/wiki/Trolley_problem

I'd amend that to say 'go about your activity without being killed'. For some animals (e.g. carnivores), killing is part of their activity. For humans, it's a choice on where each of us draw the line.

And you could argue that civilization has been one long exercise in striving to replace the contracts of nature with something better.

And I would agree with you. I like not worrying that the guy in the apartment next to me is going to rape me to death just because he can.

There is a distinction between rights and contracts. There is a natural right to life, liberty, and property. There is not a natural right to the terms of a specific contract. This is Common Law 101.

One of the natural rights protected by the Common Law is the right to enter into contracts and have the terms of those contracts enforced in a court of law. But a contract cannot abrogate a natural right, or such contract is null and void. Thus you cannot enter into a contract to take the life of another person.

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