Re: Consideration in a Shrinkwrap Contract

Bruce E. Hayden wrote:

> Don't you find this result absurd? You pay your money for software, then
> see the shrink-wrap license. You decline and ask for your money back.
> As is common these days, you do not get your money back. Your only
> recourse is to sue. You cannot use the software because you did not
> agree to the terms, but you can't economically get your money back either.

Absurdity, as with all other things, is in the eye of the beholder. The procedure is inefficient, to be sure, but is mandated if UCC-2 is being applied to the transaction (not that UCITA does a much better job in this regard). What alternative would you suggest?

Those advocating the unenforceability of shrink-wrap licenses (because it is in the box, and unavailable for review prior to purchase) must either believe (i) that consumers would be better off if all of the license fine print were plastered on the outside of the box; or (ii) if forced to put the license on the outside of the box, software companies would not do it, but would still sell the same software, for same price.

Both positions, while not absurd, are certainly unreasonable.

I would guess that when downloading software from the Internet, most consumers do not read the license terms before clicking the "I accept" button. Similarly, if software companies are required to put the license terms on the outside of the box (or CD jewel case), I doubt that most consumers would spend much time reading the terms before putting their money down. Requiring the license terms to be on the outside of the box provides a hollow benefit.

Similarly, I doubt software companies would sell the same software, for the same price, if they did not have the protections provided by the license terms.

The simple fact is that for mass-market software, the license terms are largely irrelevant to the consumer's decision. (How many of us have bothered to read the license terms after we opened to box?)

Brad Englund
Halverson & Applegate, P.S.
Yakima, WA Received on Sat Oct 28 2000 - 20:10:06 GMT