Re: Consideration in a Shrinkwrap Contract

Eric Eldred wrote:

> On Wed, Sep 27, 2000 at 09:08:47AM -0700, Brad Englund wrote:
>
> > 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?

The fixation requirement under the copyright law is irrelevant to the question of whether something that is copyrighted is a good under Article 2. Fixation under the copyright act addresses an entirely different policy issue.

When I buy software on a CD I am buying two separate items: First, the information encoded on the CD (actually, I am buying the effect that the information has on the computer--which is an intangible). Second, the tangible CD itself (which I can use as a frisbee, signaling mirror, earring, or for some other purpose, so long as that purpose is different than the purpose of the first item).

The point of my post is that Article 2 was not designed to address this type of "good," and does not provide a clear answer for the treatment of mass market software That the right judge could use Article 2 to arrive at a proper result cannot be doubted. However, the judge will still be pounding square pegs into round holes when doing so.

Brad Englund
Halverson & Applegate, P.S.
benglund[_at_]halversonlaw.com Received on Tue Oct 03 2000 - 17:10:19 GMT