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From: buzzard@TheWorld.com (Sean T Barrett)
Subject: Re: Click to Agree? (was Re: the ultimate IF archive)
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David Thornley <thornley@visi.com> wrote:
>At best, the licenses on the archive are effectively shrinkwrap
>licenses.

Except that no money changes hands; there's no "normal contract"
involved for the "shrinkwrap" license to override. While similar
legal principles might be involved, I have a feeling that *since*
it's free that might actually significantly change things.

If for some reason "freeware" licensing as used by the GPL is
going to be ruled invalid, then I suspect we're going to end
up introducing some new mechanism by which people can protect "free"
intellectual property, because there's an obvious need for it.

By the way, this is the simplest thing I was able to find on the
status of the validity of shrinkwrap licenses independent of UCITA;
the article has a particular point of view but this excerpt is
relatively unbiased I think
(http://www.lex2k.org/shrinkwrap/shrinkwraprev.html)

=-=-=

The dispute centers on consent. The argument against enforcement
asserts that consumers do not really consent to terms found in
license agreements; hence, the terms are not part of the parties'
bargain. Because the terms are not part of the bargain, the terms
are are unenforceable under general contract law. Alternatively,
under this view, the terms contained in the box or otherwise are
deemed additional terms under UCC Article 2 and thus subject to
consumer's later and unambiguous acceptance.

By contrast, the argument for enforcement asserts that the law,
since the building of the railroads and the invention of the
telegraph, has never required the real consent of parties. Nor
could contract law ever require real consent of parties.
Manufacturers of products, distributors, retailers and buyers
are not represented by counsel and do not negotiate contracts at
a round table to reach explicit agreement on individual contract
terms. Rather, one party, usually the manufacturer, sets fixed
terms that go along with the product. Provided these terms do
not violate public policy, they are enforced if they are assented
to by any manner of expression, including using or failing to
return the product. Contracts of sale involving "pay now terms
later" are commonplace and, until the Internet, did not pose a
crisis for contract law.

The major decisional law divides along the lines of ProCD v.
Zeidenberg, 86 F.3d 1447 (7th Cir. 1996)(enforcing a "shrink
wrap" license under general contract law principles) [Ed: found
at http://www.law.emory.edu/7circuit/june96/96-1139.html] and
Klocek v. Gateway, Inc., 104 F.Supp.2d 1332 (D. Kan 2000)
(rejecting ProCD and finding that the in-the-box agreement was
unenforceable for lack of consent). Following the logic of
ProCD is Hill v. Gateway 2000, 105 F.3d 1147 (7th Cir. 1997);
Mortenson v. Timberline, 970 P.2d 803 (Wash. Ct. App. 1999);
and Brower v. Gateway 2000, Inc. (1998 NY App. Div. Lexis 8872
(13 August 1998). Following the logic of Klocek is Specht v.
Netscape Communications Corp., 150 F.Supp.2d 585 (S.D.N.Y. 2001).

=-=

This article, as I noted, is biased pro-shrinkwrap licenses,
but makes some interesting points that there are plenty of
other things sold with no explicit license, or more similarly,
with contract terms only revealed after payment is received
(e.g. airline tickets and concert tickets, although these are
not in themselves products, so I dunno how valid these comparisons
are).

SeanB
