Re: Consideration in a Shrinkwrap Contract

There seems to be some confusion arising from two uses of the term "license." The term license is sometimes used to refer to the contract which grants the license (right to do something). When getting picky, one should be careful about which meaning is meant.

> The restrictions, whatever they are, are not a license. As to the
> enforceability of contracts restricting the purchasers' right to do
> whatever the purchaser wants to do with the purchased goods that is
> not forbidden by copyright law, I suspect that some are valid and some are
> not. But shrinkwrap ``contracts'' where the purchaser doesn't know the terms
> of the contract until after he purchases the goods are unenforceable
> at common law and, if some statute purports to make them enforceable,
> it would violate the Due Process clause of the Fifth and Fourteent
> Amendments, among other problems.
>

Oh, I don't think there are necessarily Due Process problems with legalizing shrinkwrap licenses. If this claim were true, than it seems the UCC would be in big trouble with all of its usage of trade, course of dealing, implied terms, statutory fill-in-t he blank terms, battle of the forms terms, and so on. I think that a state law along the lines of: "if your shrinkwrap contract terms fall within this broad range, it is legally binding" could easily enough pass constitutional muster, especially if there were a provision for return and refund if you didn't like the terms of the shrinkwrap contract . Surely the suggestion is not that common law contract rules cannot be changed without implicating the Due Process clause?

--
Prof. Steven D. Jamar, Director LRW Program               vox:  202-806-8017
Howard University School of Law                           fax:  202-806-8428
2900 Van Ness Street NW                      mailto:sjamar[_at_]law.howard.edu
Washington, DC  20008          http://www.law.howard.edu/faculty/pages/jamar

"In terms of their character, the young are prone to desires
and are inclined to do whatever they desire.  Of the desires
of the body they are most inclined to pursue that relating
to sex, and they are powerless against this."

Aristotle, Rhetoric, Book 2, Ch. 12:3, p. 165 (Kennedy
translation)