Hello everyone. This is my first post on the list.
On Sat, 29 Jul 2000, John R. Levine <johnl[_at_]iecc.com> wrote:
>
> On Tue, 18 Jul 2000, Robert Cumbow <rcumbow[_at_]grahamdunn.com> wrote:
> >
> > I don't buy this. We're not talking about copyright law in this
> > context; we're talking about contract. The terms of a license are
> > set by the licensor and either accepted or rejected by the
> > licensee. If you rent or buy the video, you agree to the terms
> > of the license,
>
> Only in states which have (unwisely in my opinion) enacted UCITA.
> Lacking that, there's precious little reason to believe that
> shrink-wrap "licenses" are binding or enforcable.
There is also the question of whether the terms of the contract are preempted by the Copyright act. Circuit courts are divided on whether an adhesion contracts can be the "extra element" needed to avoid preemption. The 7th Circuit in ProCD didn't follow the 5th Circuit in Vault v. Quaid on this point.
Nimmer has written a lengthy paper called "The Metamorphosis of Contract into Expand" with two other authors where he trashes Easterbrook's reasoning in ProCD on the preemption issue.
http://eon.law.harvard.edu/h2o/property/alternatives/nimmer.html
ProCD also ruled that shrinkwraps were binding, but almost no other Federal cases have followed this, which is why UCITA exists.
Bryan Taylor
<bryan_w_taylor[_at_]yahoo.com>
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