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From: reg@Unify.Com (Russell Grau)
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: <9d7yktw@Unify.Com>
Date: 16 Nov 90 15:10:18 GMT
References: <1990Nov14.225343.4867@isis.cs.du.edu> <1990Nov15.214511.19914@alchemy.chem.utoronto.ca> <4206@oakhill.UUCP>
Organization: Unify Corporation, Sacramento, CA, USA
Lines: 50

In article <4206@oakhill.UUCP> joeh@oakhill.UUCP (Joe Hollinger) writes:

items about the airline & Canada deleted...

>
>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)

Sounds like what software companies are doing though with their
shrink wrapped contracts.

>
>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 ).

Neither are car manufacturers.  Both do what they do so they can make lots
of money.  I think that what bothers me most about the "shrink-wrapped"
contracts is that you do not even have a chance to read the contracts
before purchase.  They are not printed on the outside of the shrink-wrapped
box.  Typically, you cannot get a hold of them at a normal shop for software.

It would make more sense if you could see the "contract" before you purchased
the software.  Hopefully, someone, someday will really understand that you
do "own" the software and drop all the silliness.  I mean, when was the last
time any author of a book came into your home and threatened to take his
book off your shelf?  (Yes, I know different portion of copyright law.  Read
last sentence with extreme sarcasm......)

Russell
-- 
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/*   Russell Grau            (916) 920-9092                 reg@unify.com    */
/* Disclaimer - "I speak for myself, not my company"                         */
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