Re: Consideration in a Shrinkwrap Contract

Ralph Clifford wrote:

> A new display for the dashboard of a car: "Congratulations on the
> acquisition of your new automobile. By inserting the key in the ignition
> you agree that you have only licensed the car and title to it shall remain
> with Big Motor Company. You agree not to drive the car in any way that
> violates the law. If you do so, all rights you have to the car will
> terminate and you agree to return it to Big Motor Company immediately
> without any compensation owed to you. If you do not wish to accept the
> terms of this license, you can return the automobile to the dealer who, we
> are sure, will happily refund your money. . . ."
>
> Once a deal is done, it is done. The consumer purchases the
> software. If the software company wants to modify this deal, it must
> establish that the contract of purchase was properly modified, including
> offer, acceptance and new consideration. Using a shrinkwrap or clickwrap
> "license" has questionable acceptance and a complete lack of new
> consideration.

There is a huge difference between a car and software. If you are driving your car from L.A. to N.Y, I cannot use it at the same time to drive from N.Y. to L.A. The two uses are mutually exclusive. Not so with software.

As far as using the licensing vehicle (i.e., approach) for software (the sad pun is intended), it is simply a result of the manner in which software developed historically.

Before the invention of PCs, and the resultant creation of mass-market software, the licensing concept fit well with the existing software uses. The development of the mass-market software created issues that are not well addressed in existing law. Thus the need for UCITA (or if you do not like its approach, for a new commercial code addressing the new issues).

Trying to use a law applicable to "goods" (i.e., comparing cars to software) to determine how software should be treated will not produce a satisfactory result.

Brad Englund
Halverson & Applegate, P.S.
Yakima, WA Received on Thu Oct 19 2000 - 01:06:43 GMT