Re: Consideration in a Shrinkwrap Contract

On Wed, Sep 27, 2000 at 09:08:47AM -0700, Brad Englund wrote:
> Ralph Clifford wrote:
>
> > John Noble wrote:
> >
> > > <snip>The distribution of mass market
>
> > > software under shrinkwrap complicates both issues: adequacy of the
> > > disclosure of the offer, and sufficiency of the evidence of acceptance. But
> > > in the final analysis, if we decide that the vendor didn't adequately
> > > disclose the offer, or the vendee didn't accept the offer, then we are left
> > > with no contract at all. The vendee may have a copy of the software, but he
> > > does not own it; the vendor may have the vendee's money, but he cannot keep
> > > it.
> >
> > But this is where the UCC kicks in. "Unless otherwise explicitly agreed title
> > passes to the buyer at the time and place at which the seller completes his
> > performance with reference to the physical delivery of the goods . . .." UCC
> > 2-401(2). Without a doubt, a physical delivery of the goods (computer program) has
> > occurred. As to the effect of the license paper, "[a]ny retention or reservation
> > by the seller of the title (property) in goods shipped or delivered to the buyer is
> > limited in effect to a reservation of a security interest." UCC 2-401(1). Unless
> > it is claimed that the software company's interest in the copy under a license is a
> > security interest, the vendor's attempt to claim more violates this UCC provision.
>
> This illustrates the need for UCITA. Software is not a "good" (except in the mind of a
> few judges), it is an intangible. The UCC is not designed to handle the issues raised
> by the sale/license (??) of software. We are trying to pound square pegs into round
> holes when we try to use UCC-2 to formulate rules for mass market software.

IANAL, but if software is not a good, but an intangible, how can it be protected by copyright law, which requires that a work be fixed in some tangible form? Are you not still confusing the copyright itself as some intangible statutory right, with the physical fixation of that work, as in a computer disc? Isn't the latter what is purchased by a consumer, and thus UCITA attempts to override rights granted in copyright law for use of that fixation? Received on Thu Sep 28 2000 - 19:10:11 GMT