Re: Consideration in a Shrinkwrap Contract

• Original Message ----- From: "JQ Johnson" <jqj[_at_]darkwing.uoregon.edu>

<<<<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.>>>>

This is a good suggestion, although I think a more practical way of setting it out is that a software company would have to have clear and easy rules for returning the software directly to the software company (if I were a software comapny, the last thing I want is the fate of my click-wrap license left to the high-school dropout who's made his way up to assistant manager at Best Buy because he's the only one who has worked there for an entire month). One way to do that would be to include a self-addressed, business reply mail sticker for the return of the software to the company, similar to those supplied by better mail order companies.

<<<<<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.>>>>>

This is a myth. Under UCITA the trojan horse could be there, but the vendor would be liable for consequential damages (these are big) if it used it. Under current, non-UCITA law, there is no prohibition on the trojan horse, and no consequential damages either.
The difference is this: you wipe my drive without warning. Under non-UCITA law, I can come after you for my actual damages, i.e. the cost of replacing my software that was lost, and maybe a new hard drive and computer if the computer is completely destroyed by your actions. Total damages to you: maybe $5000, tops. Under UCITA, at least as enacted in Maryland, I can also come after you for the profits I would have made on that $5 million account I lost because you wiped out a critical file. Total damages to you: $ 2,000,000. Under UCITA, a vendor would have to be very, very careful, or very, very dumb, to use the so-called "self-help" provisions. Also, under Maryland's UCITA, in mass market transactions (i.e. those that are being discussed here), self-help is prohibited unless the consumer actively manifests seperate consent to that provision of the contract (the consumer has to seperately click to acknowledge reading and accepting the self-help grant).

-David Hale

Note that the above is for discussion only. If you have a legal question regarding clickwrap licenses or UCITA, consult a lawyer. Received on Thu Oct 19 2000 - 14:02:45 GMT