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From: klaus@diku.dk (Klaus Ole Kristiansen)
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: <1990Nov16.091039.28417@diku.dk>
Date: 16 Nov 90 09:10:39 GMT
References: <1990Nov14.225343.4867@isis.cs.du.edu> <1990Nov15.000626.25016@elroy.jpl.nasa.gov> <1990Nov15.200548.18846@isis.cs.du.edu> <1990Nov15.214511.19914@alchemy.chem.utoronto.ca>
Organization: Department Of Computer Science, University Of Copenhagen
Lines: 44

mroussel@alchemy.chem.utoronto.ca (Marc Roussel) writes:

>In article <1990Nov15.200548.18846@isis.cs.du.edu> kreme@isis.UUCP (Fred Zeats
>IV) writes:
>>In article <1990Nov15.000626.25016@elroy.jpl.nasa.gov>
>>stevo@uniblab.Jpl.Nasa.Gov (Steve Groom) writes:
>>>However, some software packages clearly state that you are not purchasing
>>>a copy of the software, but that you are purchasing a license
>>>to use the software.
>>This is know as "shrinkwrap licensing" and the legality of the has not been
>>settled (or tested).  The argument against them is that you can't have someone
>>agree to a contract just be telling them they agree.  Without a signature
>>or something there is no agreement.

>     Fred went on to mention that the legality of shrinkwrap licensing may
>depend on the jurisdiction.  Indeed it may.  The common law in Canada
>and the U.S. are not terribly different however and I suspect that my
>comments (which reflect only my imperfect knowledge of Canadian law)
>will apply almost equally well in any common law jurisdiction.  I should
>also like to say that I am not a lawyer, but my sister is a law student
>and we discussed a very similar point of law recently.
>     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.)

If a company buys a product with the "opening this envolope means
that you agree to our terms" type license, how do you know who
opens the envolope? As a programmer at DTH it might well be me
who opens the package when DTH buys some software. If I were to
sign a contract on behalf of DTH, DTH would not be bound by it, I
do not have that authority (what is prokura in English?). Can I then
bind DTH by opening an envolope?

Klaus Kristiansen