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From: GTHEALL@PENNDRLS.UPENN.EDU (George A. Theall)
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Subject: Rainbow EchoMail Digest
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Date: 8 Sep 90 12:46:00 GMT
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Rainbow EchoMail Digest                         Sep  8, 1990

In this issue:
  RE: CACHE PROGRAM              (2 messages)


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Date:     09-07-90 (11:28)
To:       JEAN-CLAUDE DEMARS
Subject:  RE: CACHE PROGRAM
From:     PAUL ROBINSON

I suspect that the courts would rule - in most states - that a "shrink
wrap license" being an adhesion contract, is not valid and thus
the program has been sold.  Furthermore - and I've said it
before - that if they can impose an adhesion contract on you,
you can do the same.

 You could mark your check - or credit card slip - "For purchase of
software and all contract terms to the contrary are excluded."


- --- Opus-CBCS 1.12
 * Origin: Silver Bullet - Silver Spring, Md - 301-622-2247 (1:109/417.0)
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Date:     09-07-90 (11:32)
To:       BILL MAYHEW
Subject:  RE: CACHE PROGRAM
From:     PAUL ROBINSON

The contract between Digital and a purchaser is a signed contract which
- - in theory at least - the user has the opportunity to
negotiate.  And the point being that the so-called "contract"
on a software package is an "adhesion" contract, the theory
being that the purchaser is bound by it simply by opening the
package, on a take-it-or-leave it basis, without the ability to
negotiate.  Courts are loath to enforce such contracts because
they tend to put the purchaser at a disadvantage.

 I would suggest that the only way it should be legal to make an
adhesion contract valid is if the computer program comes with a
warranty as to fitness and merchantability.  Otherwise I would
claim that the so called contract on a computer program be ignored.


 The whole purpose of the so called "contract" is to do two things:
deny warranty that the program works, and to take away from the
purchaser rights that federal law gives him/her.  There is
another question there about whether a state contract law can
enforce an adhesion contract that clearly contravenes Federal
copyright law.  I do not think this has ever been taken up.


- --- Opus-CBCS 1.12
 * Origin: Silver Bullet - Silver Spring, Md - 301-622-2247 (1:109/417.0)
------------------------------