Re: UCITA / Shrinkwrap

Kevin,
I would be the last to quarrel with your point about other terms, especially those concerning nontransferability and all of its implications [as an article I published in Berkeley Tech LJ would make clear]. So, too, the right-to-use terms or restrictions that -- as you correctly state -- define and limit the functionality of the product and the features described without such limitation on the outside of the box (or on comparable screens).

Still, there is a significant difference in the warranty area itself. The toaster and other usual product warranty documents ordinarily do not go so far as to state that there are no express or implied warranties other than a express warranty that the product package/container is free from defects. The neat trick in the exclusive "recording medium is not defective" express warranty for computer information products is that it suffices, if properly written, as a "written warranty" under
the Magnuson-Moss Act. It therefore can be instrumentally used to exclude any other outside-of-package or included documentation factual representations or specifications as a basis for express warranty. True, Mag-Moss will preserve state law implied warranties if state law prohibits disclaimer. But is a preserved implied warranty for the software or database, or only for the media (i.e., the subject of the Mag-Moss written warranty)? In my view, none of this is what Mag-Moss
intended as essentially a remedial measure for deceptive warranties and insufficient information disclosure -- but even the perverse is sometimes plausible.

BTW -- I also agree with your point about return of the toaster if you do not agree with the warranty in the box, though UCITA's sellers (or are they licensors?) promote UCITA as a major advance and legal innovation because it "creates" a new right to return in (only) consumer and other mass market transactions.

> David,
>
> I don't think the problem is with the warranty limitations so much as other additional terms that would be considered "material." For example, I doubt that the warranty card's terms would be enforceable if they indicated that you had not really purchase
d the toaster, just licensed it, and that you couldn't transfer it to anyone else, and that if you used the toaster in violation of the additional terms they had the right to come into your home and disable the toaster.
>
> Warranties are limited all the time: they generally do not limit the functionality of the product, or change a sale of a good into a license, but that is what many of the shrinkwrap and clickwrap agreements purport to do. And although I think it would
be impractical to return a toaster because you don't agree with the warranty limitations contained inside the box, as a legal matter I think you win if you try to return the item to the manufacturer and it refused to accept the return.
>
> Kevin Grierson
>
> ********************************************
> Kevin W. Grierson
> kgrierson[_at_]wilsav.com
> ph: 757/628-5603 fx: 757/628-5566
> Willcox & Savage, P.C.
> www.willcoxandsavage.com
>
> ********************************************
>
> >>> DHale[_at_]aggt.com 10/24/00 10:21AM >>>
> 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 - 04:34:03 GMT