From: Hallam-Baker <hallam@ai.mit.edu>
Date: Sat, 6 Jul 1996 11:21:20 +0800
To: Deranged Mutant <cypherpunks@toad.com
Subject: Re: Shrink-Wrap Lic. uphelo by courts.  From Edupage, 4 July 1996
In-Reply-To: <4rk4j2$qdr@life.ai.mit.edu>
Message-ID: <31DDAECD.41C6@ai.mit.edu>
MIME-Version: 1.0
Content-Type: text/plain


Deranged Mutant wrote:
> 
>The latest
> ruling found this suggestion to be an onerous burden, but did say the box
> must have a notice saying there's a licensing agreement inside, and that
> buyers should be able to return the software if they don't agree to the
> license once they read it.  (Investor's Business Daily 3 Jul 96 A5)


Perhaps Prof Froomkin could provide an opinion. It sounds to me however
as if the defendants were simply ripping off the copyright of the plaintif
and attempting to get arround it by claiming to have "bought" rights to
resell along with the software by wrangling over the shrink wrap agreement.

Or were the defendants reselling the software unopened to foreign customers
via the Internet? Seems to me that that might well be open to further 
challenge. If a "contract" clause is expressed in a manner that means that
it would not be encountered by a party which it attempts to bind there might
be argument as to whether acceptance was possible. 

I suspect that the claims the plaintifs were making lay very definitely
within the range of what people in the trade would usually expect to be
the licensing terms for software purchased off the shelf. Just as there 
is an expectation when purchasing a book that one has purchased an instance
and not the rights to the copyright. Consider the analogy with purchasing a
book that is wrapped in shrink wrap film and that consequently one was
unable to read the "all rights reserved" legend.

The question that I am interested in is whether someone could claim that
a shrink wrap license can bind a user to terms that are less widely expected
in the industry. For example clauses which prohibit reverse engineering,
transfer to other users etc.

Might be interesting to know the precise rulling made and its terms.


		Phill