Path: utzoo!utgpu!news-server.csri.toronto.edu!rutgers!usc!wuarchive!csus.edu!beach.csulb.edu!sichermn
From: sichermn@beach.csulb.edu (Jeff Sicherman)
Newsgroups: comp.sys.ibm.pc.misc
Subject: Re: LEGALITY OF SELLING SOFTWARE
Message-ID: <1991Feb16.095117.19815@beach.csulb.edu>
Date: 16 Feb 91 09:51:17 GMT
References: <38899@cup.portal.com> <70629@microsoft.UUCP> <1991Feb15.200256.21977@ux1.cso.uiuc.edu>
Distribution: usa
Organization: Cal State Long Beach
Lines: 36

In article <1991Feb15.200256.21977@ux1.cso.uiuc.edu> berger@iboga (Mike Berger) writes:
>fredf@microsoft.UUCP (Fred FREELAND) writes:
>>The whole point is, that if you are a normal person, with normal faculties and
>>a normal understanding of the language, opening the disk envelope is, by
>>definition, agreement with the terms of the licensing agreement. It doesn't
>>matter if you think it's bogus or not. If you opened the envelope you have
>>agreed, like it or not.
>*----
>You are mistaken.  What if the agreement stipulated that I had to give
>you my firstborn male child?  Or that it gave you the right to any
>software produced on my computer?  You can't claim that a shrink-wrap
>license is binding because opening the package implies consent.  That
>would make any ludicrous conditions applicable by default!  Wouldn't you
>also, then, agree that any conditions I write on the check used to
>purchase the software are equally binding?  By accepting the check, you have
>consented to MY terms.
>--

    THIS is ludicrous nonsense. ALL contracts, to be enforceable under law
must meet a number of legal conditions/tests, including those of reasonable-
ness, equity, ability of the parties to contract, validity of the transaction
under law (cant enforce a contract to sell illegal drugs, for instance), etc.

   The shrink-wrap license validity will be decided on these terms, not upon
its mere existance. *You* cannot use as a defense that some such licenses
might be unenforceable on these terms as a reason to claim threrefore that
*all* such contracts are unenforceable.

   Moreover, the example of the check is irrelevant. The seller (if not
the license grantor) is merely acting as a retail agent for the grantor
and your check constitutes a contractual relationship with him related to
the purchase as governed by statutes and policies of the seller. He is
not automatically the enforcer or guarantor of the license's terms. *That*
is a contract between you and the license grantor.

Jeff Sicherman