Xref: utzoo comp.sys.apple2:8561 comp.sys.amiga:71827 comp.sys.mac.misc:5827 comp.sys.ibm.pc.misc:3753 misc.legal:22659
Path: utzoo!utgpu!news-server.csri.toronto.edu!cs.utexas.edu!oakhill!joeh
From: joeh@oakhill.UUCP (Joe Hollinger)
Newsgroups: comp.sys.apple2,comp.sys.amiga,comp.sys.mac.misc,comp.sys.ibm.pc.misc,misc.legal
Subject: Re: Shrinkwrap licensing (Was: Do *NOT* reveal or mention "hacking")
Message-ID: <4206@oakhill.UUCP>
Date: 16 Nov 90 05:01:08 GMT
References: <1990Nov14.225343.4867@isis.cs.du.edu> <1990Nov15.214511.19914@alchemy.chem.utoronto.ca>
Organization: Motorola Inc. Austin, Tx
Lines: 54

In article <1990Nov15.214511.19914@alchemy.chem.utoronto.ca>, mroussel@alchemy.chem.utoronto.ca (Marc Roussel) writes:
>      Although it is true that (as Fred mentioned) the shrinkwrap
> licensing agreements have never been challenged, I believe that such a
> challenge would fail because of the common law concept of precedent.
> "But you just told us there's no precedent", you object.  There is no
> precedent in software, but there certainly are precedents in other areas
> of contract law.  Consider for instance the obligatory contracts on
> airplane tickets.  If you want to fly with an airline, you have no power
> to refuse the terms of these contracts.  These contracts have been
> challenged in court on precisely the grounds that Fred objects to
> shrinkwrap licensing: the consumer is powerless to seek alternative
> arrangements with the airline.  There is no form to sign, but purchasing
> and using the ticket is taken to imply consent to the terms.  (The same
> goes in many other industries.  I'm only picking on the airlines because
> they happen to be a convenient target.)  The courts (in Canada) have
> consistently upheld these contracts stating that, in effect,
> if you don't like it you can always either swim to Europe, or not go.  (These
> implicit contracts always carry disclaimers that say something like
> "except where the local laws say we can't screw you like this".  I would
> be most curious to know in what jurisdictions the power of the companies
> has been limited by some sensible laws.)
> 
> 				Marc R. Roussel
>                                 mroussel@alchemy.chem.utoronto.ca


Well I don't really know what goes on up in Canada, but down here the type
of contracts you are referring to, are not consistently upheld. In fact,
many of these type of agreements, know as adhesion contracts, are *not*
enforceable. For example, the Supreme Court of New Jersey refused to uphold
a clause releaving an automobile manufacturer of liability contained in
a sales contract. To quote the court:

	From the standpoint of the purchaser, there can be no arms length
	negotiating on the subject. Because his capacity for bargaining
	is so grossly unequal, the inexorable conclusion which follows is
	that he is not permitted to bargain at all. He must take or leave
	the automobile on the warranty terms dictated by the maker. He 
	cannot turn to a competitor for better security. Henningsen v.
	Bloomfield Motors, 32 N.J. 403, 161 A.2d 94 (1960)

Other U.S. courts have refused to uphold adhesion contracts involving 
residential leases, valet parking, health insurance and many more. It really
turns on weather the courts believe that the parties fairly bargained for
the contract that resulted. Factors such as market conditions at the time
the contract was made, economic power of the parties, impact on public policy
of the term sought to be enforced, all influence the decision.

As applied to shrinkwrap though, the whole argument is probably irrelevant.
Manufacturers of software are under no obligation to sell you software.
If you want to own software there is nothing stopping you from bargaining
with the seller for that type of contract ( I'll bet it will cost a lot
more though :-) ).  In fact, such bargains are not unknown ( source 
licensing ).