Re: Consideration in a Shrinkwrap Contract

From: Bryan Taylor <bryan_w_taylor[_at_]yahoo.com>
Date: Mon, 23 Oct 2000 08:00:22 -0700 (PDT)

• Tyler Ochoa <tochoa[_at_]LAW.WHITTIER.EDU> wrote:
  > ProCD v. Zeidenberg relied heavily on the ability of the consumer to
  > return the CD and get a refund if he/she didn't like the shrink-wrap
  > license. So, the rationale of the opinion would strongly suggest
  > that the license is not enforceable in that situation.
  

Does anybody really think that you can return an opened software package and get a refund? They call you a pirate if you try to do this. This theory is a joke that flies in the face of the reality of software sales.

Isn't the need to expend resources to reject an offer a form of procedural unconsionability? The vendor should have to bear these costs. If a vendor had on-site pickup of rejected product (yeah, right), maybe I'd consider this a serious point.

In fact, the real inspection/acceptance of the goods is interfered with by the shrinkwrap/clickwrap. In order to truly assess the quality of the product you have to install it. Let's say the CD is scratched in production or that one of your device drivers isn't compatible with the software. How can you determine this without "accepting"?

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Yahoo! Messenger - Talk while you surf! It's FREE. http://im.yahoo.com/ Received on Mon Oct 23 2000 - 15:02:47 GMT