Re: Consideration in a Shrinkwrap Contract

At 12:48 PM -0400 10/2/00, Peter D. Junger wrote:
>John Noble writes:
>
>: Moreover, the whole of Article 2 applies only to the sale of goods, not to
>: copyright licensing. You can't invoke Article 2 to establish a sale of
>: goods; you have to establish that it's a sale of goods in order to invoke
>: Article 2.
>
>Are not books goods? Are not CDroms? Are you claiming that you are
>entering into a copyright license when you buy a book? That
>would seem to imply that there are no cases to which the First Sale
>doctrine could apply, now wouldn't it.

That's the kind of argument that gives sophistry a bad name. Are you claiming that every transfer of a copyrighted work is a sale of goods? That would seem to imply that there are no cases in which the terms of a copyright license or assignment might apply, now wouldn't it.

Of course books and CDRoms are goods. You don't enter a copyright license when you buy a book because it isn't offered under license. There are lots of cases to which the first sale doctrine applies, including software sales where the license does not purport to restrict resale of the "good" on which the program is fixed.

You can have an IP transaction that is a license, or that is a sale of goods, or that is a sale of goods subject to a license, or even a bailment, a gift, a conditional gift, a loan, a pledge, or a hypothecation ferchrisakes -- the law is more accomodating than you allow. Neither the Copyright Act, nor certainly the UCC, prohibits the grant or enforcement of a copyright license. The only questions are 1) whether the shrinkwrap satisfies the contract formalities required to give rise to an enforceable license; and 2) whether certain license provisions which can be characterized as enlarging the copyright owner's statutory rights (e.g. surrendering fair use) are always, in any event, unenforceable.

>(And, by the way, if almost everyone who buys a CDrom with software
>on it just thinks that they are getting a license, that would not
>be the first time when almost everyone was wrong about a question of
>law, now would it?)

To the extent offeror and offeree have a mutual and voluntary understanding that they have entered into a license agreement, then they have in law and in fact entered into a license agreement. Whether that license agreement is voidable on grounds of mutual mistake would make for a fascinating law review article. But by and large, what both parties to a contract THINK they are getting IS the answer to the question of law. Unless, of course, you would like to hew to the position that there is no such thing as a copyright license -- that they are all void ab initio as a violation of public policy. But that wouldn't make sense, now would it?

John Noble Received on Tue Oct 03 2000 - 19:18:14 GMT