Xref: utzoo comp.sys.apple2:8590 comp.sys.amiga:71864 comp.sys.mac.misc:5849 comp.sys.ibm.pc.misc:3782 misc.legal:22670 Path: utzoo!utgpu!news-server.csri.toronto.edu!cs.utexas.edu!yale!think.com!linus!linus!mwunix.mitre.org!jcmorris From: jcmorris@mwunix.mitre.org (Joe Morris) Newsgroups: comp.sys.apple2,comp.sys.amiga,comp.sys.mac.misc,comp.sys.ibm.pc.misc,misc.legal Subject: Re: Shrinkwrap licensing Message-ID: Date: 16 Nov 90 15:14:28 GMT References: <1990Nov16.091039.28417@diku.dk> Sender: usenet@linus.mitre.org Followup-To: comp.sys.apple2 Lines: 68 klaus@diku.dk (Klaus Ole Kristiansen) writes: >mroussel@alchemy.chem.utoronto.ca (Marc Roussel) writes: [lotsa discussion of shrink-wrap licenses in a l-o-n-g message thread] >>In article <1990Nov15.200548.18846@isis.cs.du.edu> kreme@isis.UUCP (Fred Zeats >>IV) writes: >>>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 some- >>>one agree to a contract just be telling them they agree. Without a signature >>>or something there is no agreement. >> Although it is true that (as Fred mentioned) the shrinkwrap >>licensing agreements have never been challenged, I believe that such a Try Vault v. Quaid. Memory says (and I am NOT a lawyer...thank God) that the Court held in this case (where plaintiff alleged that the copy-protection breaking code written by defendant could not have been created without violating the shrink-wrap license prohibition against reverse engineering) that the relevent terms of the license were unenforcable. The citations I've seen (none of which were really authoritative) reported that the Court so held in part because the terms of the contract were non-negotiable (a so-called "contract of adhesion") and they interfered with the purchaser's ability to use the product. >>"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 But this isn't excatly a parallel example. The terms you find in the microscopic type on the back of your ticket in many cases are either mandated or explicitly permitted by law; most of the rest of them involve questions of liability and not the immediate use by the customer of the services of the airline. They are still contracts of adhesion, but they don't interfere with your ability to use the service (transportation) of the airline. In some cases, of course, you could argue that using the word "service" in an airline context is false advertising, but that's another issue for a different newsgroup... >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 I've always wondered how many lawyers could get rich by litigating a license violation case where a minor purchases a program with a shrink-wrap license and subsequently violates its terms. Since by law the minor cannot enter into a contractural relationship it would seem that the license terms are unenforcable; on the other hand a minor is still subject to the relevent laws. This isn't quite the same as your example because an employer is responsible for the acts of its employees; as long as the package was opened by an employee then the company would probably be considered to have the responsibility for complying with whatever license terms are enforcable. Several software vendors have extracted extremely large payments from major corporations who have been found to be using illegally copied software. The employer is held responsible to the vendor, although I wouldn't be surprised if some employees lost their jobs over the issue because they embarrassed their employer. Does anyone know of any cases more recent than Vault? Joe Morris