Re: Consideration in a Shrinkwrap Contract

On Wed, 25 Oct 2000 09:11:12 -0400, Peter D. Junger wrote:
>"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?
>

     If the click-wrap agreement is binding, then the answer to this question is probably "no." Almost every shrinkwrap or clickwrap agreement I've seen contains a provision prohibiting transferring the copy to another without the licensor's permission. Even those that don't can easily require obtaining the acceptance of the license terms by the acquirer as a condition precedent for transferring the license. Consequently, although the person will have acquired a copy of the software, he or she will not have acquired the rights to use it.

--
Ralph D. Clifford
Professor of Law
S. New England School of Law