Re: UCITA / Shrinkwrap

David Hale wrote:

> 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.)

The distinction as I see it is that the toaster is clearly within the scope of UCC II. It is clearly a good. I would be hard pressed to see how the battle of the forms would not resolve in the consumers favor in that case.

> 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.

But if the legislatures are willing to pass the UCITA, despite all of the opposition, ranging from Ralph Nader to the IEEE, then I see no way for this sort of thing to pass.

-- 
--------------------------------------------------------------------
The preceding was not a legal opinion, and is not my employer's.
Original portions Copyright 2000 Bruce E. Hayden,all rights reserved
My work may be copied in whole or part, with proper attribution,
as long as the copying is not for commercial gain.
--------------------------------------------------------------------
Bruce E. Hayden                      bhayden[_at_]acm.org
Phoenix, Arizona                     bhayden[_at_]ieee.org
                                     bhayden[_at_]copatlaw.com