Re: UCITA / Shrinkwrap

1. In the warranty case, the statute goes the other way. Magnuson Moss (and some state laws) provide more protection than the warranty card would give.
2. The warranty has to do (in most cases) with a failure of the device to perform. It does NOT restrict title or use or transfer. A license, on the other hand, very, very often restricts use, study (no dissambly), transfer (including transfer from one machine to another), deprives the owner of title he or she might have assumed to have purchased, and includes all the disclaimers of warranty of the warranty card, if not indeed trying for "as is" status.

If the standard terms were more favorable to the buyer, UCITA would raise less controversy. Indeed, UCITA itself does prohibit some of the most licensor favoring terms in "mass-market" transactions, but not all. It also defines mass-market such that many transactions you might think of as "no-negotiation" transactions (multiple copies at once) are not in fact "mass-market" under UCITA.

Beyond the shrinkwrap question, UCITA also includes many sections that create special law for software and computer information on subjects (e.g. "consideration") that many commentators should be uniform across industries, not have special rules for this one industry.

Roland J. Cole, Executive Director
Software Patent Institute
11 South Meridian Street, Suite 1313
INDIANAPOLIS IN 46204-3535
317-231-7799; fax 317-231-7433
cole@spi.org; http://www.spi.org

• Original Message ----- From: "David Hale" <DHale[_at_]aggt.com> To: "Multiple recipients of list" <cni-copyright[_at_]cni.org> Sent: Tuesday, October 24, 2000 9:21 AM 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 Thu Oct 26 2000 - 02:10:17 GMT