RE: UCITA / Shrinkwrap

My thought as to the main difference is that the typical warranty/warranty card only refers to a warranty (the warranty card only registers the warranty and is not necessarily required). The typical shrinkwrap has several other terms that are also important. Example--the toaster causes a short that burns down your house. You can sue in your state, under your state's laws, and get damages. Example--the software causes the hardware to cause a short that burns down your house. You may or may not be able to sue the software maker in your state, may or may not get to use your state's laws and may or may not get all your damages (assuming, of course, the shrinkwrap is enforceable and ignoring the formidable proof problems).

I think you are right in pointing to the warranty/warranty card as something similar. However, not only is the warranty regulated by the UCC, it is also regulated federally by the Magnuson-Moss Act and associated FTC rules (which, of course, are not displaced by UCITA).

My own perception is that UCITA has two process problems (which are related) that are in addition to the substantive issues-- 1) it is not really a consensus document, and 2) the perception that the software companies rode rough shod over all objectors in order to get what they wanted.

Harold Federow

> -----Original Message-----
> From: David Hale [mailto:DHale[_at_]aggt.com]
> Sent: Tuesday, October 24, 2000 7:22 AM
> To: Multiple recipients of list
> Subject: UCITA / Shrinkwrap
>
>
> Much of the controversy surrounding UCITA is that it allows shrinkwrap
> licenses, which many characterize as unprecedented and unfair. I am
> wondering, however, if any of the anti-shrinkwrap people here
> would mind
> taking a shot at distinguishing the shrinkwrap license from
> what seems to be
> an identical concept (and one with a much longer history):
> the warranty
> card.
>
> Let's say I buy a toaster. I look at the picture on the box
> at the store. I
> look at the price. I look at the features listed on the side.
> I look at the
> price. I look at the picture again. I decide it looks nice.
> I pay for it.
> I take it home and unpack it where I discover a warranty card
> which modifies
> the terms of the sale. It disclaims all warranties except for
> its express
> warranty against defects good for 90 days only. I don't like
> the warranty.
> What can I do? I can take it back, and probably be hassled
> for returning it
> after openning the box, especially when I admit that it does function
> properly. Or I can accept the terms, even though I'm not
> happy with them.
> How does a shrinkwrap license differ? (Except in the obvious
> way that for
> software the inner package is not openned until after I have
> been given the
> chance to review terms -- a chance I didn't have with the toaster.)
>
> Let's set aside for the moment the problem that Best Buy will
> not accept a
> box of software that has been openned, even if the inner seal
> is still fine.
> I recognize this is a problem, but it can be solved in
> different ways, like
> a simple piece of legisislation that requires that returns
> with inner seals
> still intact must be accepted.
>
> I am genuinely interested in hearing other views on this. I
> am open to
> being convinced as to the evils of UCITA.
>
> -David Hale
>
Received on Wed Oct 25 2000 - 16:02:02 GMT