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Pastimes : Silicon Investor, DATEK, and broken promises
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To: SI Brad who wrote (20)6/20/1999 11:27:00 PM
From: Gary Korn  Read Replies (3) of 72
 
You have not been bombarded with solicitations

You are attempting to define the breach away. A reasonable person could well conclude that being forced to see the Datek banner on each and every message screen is beyond "bombardment." If one reads 1,000 messages in a day, one will see 1,000 Datek sponsorship banners. If that is not "bombardment," I cannot imagine what is.

the word "banner" was inserted to specify that you would not see a "banner" ad (commonly accepted as a graphical intrusion taking up substantial screen real estate).

Again, you are attempting to define the breach away. Where is it settled that an advertisement must take up "substantial screen real estate" in order to constitute a "banner"?

It is a well-settled rule of contract law that the terms of a contract are construed against the drafter. The current situation is a good example of why this rule of law makes sense:

There are lots of people -- including me -- who reasonably expected that there would be no advertisements on SI (and who paid good money to join SI on the basis of that representation). Under the rule of law I mentioned, and particularly in light of the reasonable expectations of SI's users, the drafter's current efforts to construe what was meant (by defining "bombardment" and "banner" in a fashion convenient to the drafter) should fail.

Gary Korn
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