Re: Consideration in a Shrinkwrap Contract

"Cumbow, Robert" wrote:
>
> Peter Junger asked: "Are you claiming that you are
> entering into a copyright license when you buy a book?"
>
> Call it a license or not, but a person who buys a book is bound not to
> distribute copies of the book, the same way a person who buys a copy of a
> piece of software is bound not to distribute copies to others. The First
> Sale Doctrine allows you to sell the book, or give it away, when you're done
> with it; but not to keep one copy for yourself and give another one away.

But that is precisely the problem here - that typical software licenses purport to restrict you from selling that CD containing software - even if you no longer have it installed anywhere.

> John Noble writes:
> (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?)

It is not that simple. You cannot totally ignore peoples' reasonable expectations when determining contract formation. After all, if a contract is a meeting of the minds, then when most people do not understand things the way that the vendor does, then is there really a contract there on the vendor's terms?

-- 
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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