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From: mroussel@alchemy.chem.utoronto.ca (Marc Roussel)
Subject: Re: Shrinkwrap licensing (Was: Do *NOT* reveal or mention "hacking")
Message-ID: <1990Nov15.214511.19914@alchemy.chem.utoronto.ca>
Organization: Department of Chemistry, University of Toronto
References: <1990Nov14.225343.4867@isis.cs.du.edu> <1990Nov15.000626.25016@elroy.jpl.nasa.gov> <1990Nov15.200548.18846@isis.cs.du.edu>
Date: Thu, 15 Nov 90 21:45:11 GMT

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.  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.)
     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.

				Marc R. Roussel
                                mroussel@alchemy.chem.utoronto.ca