On Thu, 3 Aug 2000, Terry Carroll <carroll[_at_]tjc.com> wrote:
>
> FWIW, though, in a case sounding in federal admiralty law (so state
> law is not applicable), the U.S. Supreme Court has upheld a
> long-standing equivalent of a shrinkwrap license: the fine print on
> a travel ticket, in this case, a cruise ship ticket. Carnival
> Cruise Lines v. Shute, 499 U.S. 585 (1991).
>
> [...]
> Under the terms of the tickets, the Shutes' use of the tickets was
> deemed to be acceptance of the terms on the ticket. Sounds familiar.
But without the terms on the ticket, there is no contract. The ticket completely defines what services will be provided by the cruise lines. By showing up and indicating that you want to use your ticket aren't you attempting to hold the cruise line to the contract terms on the ticket? The money paid up front can be said to be consideration for the reservation of your "spot" until you accept the contract by filling it.
On the other hand, when you buy software, you generally start with a contract of sale that itemizes the goods, the quantity, and the cost. Once you take posession of the goods, the contract is complete. Easterbrooks's "money now, terms later" explaination doesn't fly -- a set of terms are completely specified in the contract of sale and the Copyright Act. It seems unconscionable to then ask you to then bargain to use your own property, especially because you would have to incur a cost to reject.
The act of removing the shrinkwrap or clicking "I accept" during installation does not indicate acceptance because the offeror has no right to constrain your use of your property via an "attack by offer". For example, I cannot say "enter your house to agree not to sue me except in Florida".
Additionally, for most clickwrap licences on software bought from a retail store, the software company isn't even a party to the contract of sale. The clickwrap has to stand on it's own as a new contract, but there is no consideration by the software company, since you do NOT need a licence to install on one machine if you are the owner of a copy.
Bryan Taylor
<bryan_w_taylor[_at_]yahoo.com>
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