RE: Consideration in a Shrinkwrap Contract

Robert Cumbow writes:

> I believe that, in such situations, the "manifestation of acceptance" is
> proceeding to install the software after clicking "OK" on the license
> provisions. From that viewpoint, the customer does indeed have the
> opportunity to view (if not the obligation to actually read) the license
> terms before manifesting acceptance. He can always click no, abort
> the install process, eject the disk, put it back in the box and return it
> to the store. Careful consumers do this all the time, right?

I actually tried to return some opened software to a store once. Got the runaround, of course. I imagine that with sufficient perseverence ("I'd like to speak to your manager...") I would have been able to get my money back, but it wasn't worth the hassle.

UCITA predicates the enforceability of a shrinkwrap contract on the ability of the consumer to return the software. How easy does it have to be?

What about the situation (not uncommon in this era of failing dot coms) of a software "purchase" from an Internet mailorder company that goes out of business before I get around to trying to return the unacceptable software? What about middlemen whose policies include a 20% "restocking fee"?

I propose an interpretation of UCITA: if the consumer has any difficulty at all in returning the software, this is likely to be sufficient to invalidate the clickwrap contract. It will be litigated, of course, but software vendors who think UCITA is better than sliced panne should be prepared for this possibility.

Of course, under UCITA the vendor will still have the right to include a trojan horse in the software that erases the users' hard disk as penalty for ignoring this invalid clickwrap contract.

JQ Johnson                      Office: 115F Knight Library
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