Re: Consideration in a Shrinkwrap Contract

"Bruce E. Hayden" writes:

: One of the things that crossed my mind recently was that this
: discussion will soon be moot since logically software vendors
: are likely to go more and more on-line in delivering their
: software. And, in an on-line environment, they can force you
: to affirm acceptance of their terms before completing the sale
: and accepting your payment.

Leaving aside the possibility of circumventing whatever program they use to ``force you to affirm acceptance,'' the result may well be an enforceable agreement against the person who is forced to accept. But that person can still sell (or give away or abandon) his copy of the software, can't he? And the purchaser is not going to be bound by the agreement, now is he? So some of the discussion will still be relevant, unless you are assuming that one will run the software on the vendor's server rather than on the vendee's own machine, and that the vendee will not have a copy.

It seems to me that there is another reason why this discussion is likely to be irrelevant. In the new future no rational person is going to purchase unfree commodity software, but rather only open source software.

And there is another reason that will take affect someday: the courts will figure out, as the First Circuit actually did in Lotus v. Borland, that functioning computer programs are processes and that 17 U.S.C. 102(b) means what it says.

--
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
 EMAIL: junger@samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu   
        NOTE: junger[_at_]pdj2-ra.f-remote.cwru.edu no longer exists