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From: wnp@iiasa.ac.at (wolf paul)
Newsgroups: 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: <954@iiasa.UUCP>
Date: 16 Nov 90 09:38:54 GMT
References: <1990Nov15.000626.25016@elroy.jpl.nasa.gov> <1990Nov15.200548.18846@isis.cs.du.edu> <1990Nov15.214511.19914@alchemy.chem.utoronto.ca>
Sender: news@iiasa.AT
Reply-To: wnp%iiasa@relay.eu.net (wolf paul)
Organization: International Institute for Applied Systems Analysis, Laxenburg, Austria
Lines: 33

In article <1990Nov15.214511.19914@alchemy.chem.utoronto.ca> mroussel@alchemy.chem.utoronto.ca (Marc Roussel) writes:
>     In summary, I suspect that the reason that there hasn't been a
>challenge to shrinkwrap licensing is that, at least in most
>jurisdictions, there are no grounds on which to proceed that wouldn't
>immediately run up against this embarrassing precedent: shrinkwrap
>licensing is just a type of implicit contract and these have
>consistently been found to be legal and valid.  Anyone approaching a
>lawyer with a view to challenging the license agreement would probably
>just get told that it's futile.

But there is a good common law argument against shrinkwrap licenses:

If someone advertises something for sale, and you buy it, you have a
legal right to expect that what you get is what was advertised.

The people who sell software (stores, mailorder places) usually offer
PROGRAMS for sale, not LICENSES to USE PROGRAMS; and unless it is clearly
apparent that what they are selling is not what they are advertising
before you hand over your money and they hand over the product,
you have BOUGHT a PROGRAM, not a license.

If you buy in a store, and the license is on the outside of the
package, they could argue that you accepted the license by buying the
package; however, if the license is INSIDE the package, or if you buy
sight unseen from a mailorder place which advertised a PROGRAM for
sale, they have no way of arguing that what you were sold is what
the license states rather than what the advertising and the resulting
implicit purchase contract states.

--
Wolf N. Paul, UNIX SysAdmin, IIASA, A - 2361 Laxenburg, Austria, Europe
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