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From: omh@nancy (Owen M. Hartnett)
Newsgroups: comp.sys.amiga,comp.sys.misc,comp.sys.ibm.pc,comp.sys.mac,comp.sys.atari.st
Subject: Re: Guidelines on legal protection for shareware & freeware
Message-ID: <22633@brunix.UUCP>
Date: 7 Feb 88 04:50:04 GMT
References: <6784@agate.BERKELEY.EDU> <6606@oberon.USC.EDU>
Sender: root@brunix.UUCP
Reply-To: omh@nancy.UUCP (Owen M. Hartnett)
Organization: Brown University Computer Science Dept.
Lines: 54
Summary: Shrink-Wrap agreements

Regarding the comments on "shrink-wrap" license agreements.

The previous posters are correct in stating that such agreements have
never been tested in court.  There are several good reasons why I believe
any such case that gets into court will have shrink-wrap thrown out on its ear.

*** Disclaimer ***

I am not a lawyer.  This is not legal advice, only my conjecture on
what might happen to a hypothetical case concerning shrink-wrap.

1) When you go to a store and buy software, you essentially complete a 
sales contract between the vendor and yourself.  In the case of a store,
generally the vendor is not the party who has an interest in the license
agreement, meaning that the software publisher (or whoever holds the
license rights) is attempting to be a third party in this contract.
Unless the vendor specifically calls attention to the license agreement
before the sale, it is possible that the intended buyer did not read the
license agreement on the back.  There are many reasons why this could be so,
i.e. the software could be in a display case or you may have bought by
mail order.)  Unless provably stated otherwise at the point of sale, the
contract is between you and the storekeeper.

The only vendor I know of who has this covered correctly is APDA.  When you
"Join" APDA (really you submit to the licensing arrangement), you sign a
statement that you will read the back of any software you buy and return
it if you do not agree with the wording.  This may not be enough to
satisfy the courts, but it's better than most.

2) In the case of the "Break this seal and lose all your rights" type of
business, this seems to be the weakest type of licensing.  When no
agreement is visible from the outside of the packaging, any internal
notice would be trying to enforce a condition of the sale after the sale has
taken place.  In order to create a valid contract, (like a sales contract),
all terms of the contract must be known to all parties before the contract
is consummated.  You can't throw in another condition after the sale has
taken place.  Suppose the seal said: "Break this seal and you owe us another
ten dollars." or "Break this seal and you must vote Republican at the next
election."  It's like buying a loaf of bread and when you get home, find
a band wrapped around it saying "By breaking this seal, you agree not to
give any slices of this bread to Owen Hartnett."

Any real lawyers care to comment?


Owen Hartnett
Brown University Computer Science

omh@cs.brown.edu.CSNET 
omh%cs.brown.edu
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"Don't wait up for me tonight because I won't be home for a month."
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