Re: Subject: Re: Consideration in a Shrinkwrap Contract

"Prof. Steven D. Jamar" wrote:
>
> 1. What most people think they own - most lawyers, let
> alone most people, don't really understand intellectual
> property. Try explaining the copyright in the music v. the
> performance on the CD and ownership of the CD itself to a
> lay person or even a non-IP lawyer. It can be done, but it
> is not easy...

But when we get into software contracts, we are dealing with reasonable expectations. You seem to be positing that just because the area of the law is complex, that software vendors are free to pull fast ones over on the consumers.

The reality is that the software vendors invariably use attorneys to draft their software agreements, while the public rarely utilizes them when purchasing software.  

> 2. So most people do not think about what they own with
> any level of sophistication or legality in mind. I would
> suspect it is mostly thoughtless - or at best accompanied
> by ideas like - "I bought this and can use it like I want -
> on as many machines as I want, so long as I am using it."

This would seem to argue against shrink-wrap licenses.

> 3. As to shrinkwrap being post-consideration -- I think
> this is mostly meaningless. Consideration was a bad concept
> when it was originally developed and is worse now with
> manifold exceptions and all sorts of formulaic dodges. It
> is no argument at all to say there is no consideration. If
> the law changes to legalize a contract without
> consideration, that does not make the contract illegal.
> Consideration is an unnecessary complicating factor with
> almost no utility in the real world any longer.

This is a cop-out if I have ever heard of one. I disagree 100% that consideration has no utility any more.

My view is that the vast majority of contracts have identifiable consideration. Just think of your everyday activities - going to the store, getting gasoline, buying a house, etc. It is only at the margins that consideration is really even a problem.

You need to go back to contract basics - if I enter into an agreement with you, then I promise you this, and you promise me that. What we promise is our consideration. Without the mutual promises or delivery of something, there really is no contract, as we typically understand the term.

The problem with ignoring consideration in the shrink-wrap area is that that is precisely the time that the average person reasonably believes that the transaction takes place. That the software industry has engineered legislation in a couple of states to change this to the detriment of the consumers is irrelevant. It still remains true that the vast majority of people believe that they have purchased software when they go through the checkout line and pay their money.

So, I guess what I am saying is that getting bogged down in the minutia of the consideration exceptions is irrelevant since the exchange of consideration is the time that the non-drafting party reasonably believes the transaction to have taken place, and that any ambiguity in the contract can be laid solely at the feet of the party trying to pull a fast one in slipping in that shrink-wrap license after the fact.

> 4. The substantive problem is whether UCITA and the
> software vendors are right with respect the balance of power
> they seek to impose on the users. Maybe so - for the most
> part I don't think it matters much - though there are some
> circumstances where there seems to be some overreaching in
> UCITA to me.

Some? How about that the sole purpose of the UCITA was to override common sense and contract formation fundamentals to the benefit of software vendors at the expense of consumers.

-- 
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The preceding was not a legal opinion, and is not my employer's.
Original portions Copyright 2000 Bruce E. Hayden,all rights reserved
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Bruce E. Hayden                      bhayden[_at_]acm.org
Phoenix, Arizona                     bhayden[_at_]ieee.org
                                     bhayden[_at_]copatlaw.com