Re: Consideration in a Shrinkwrap Contract

"Ralph Clifford" writes:

: 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.

We are talking about a transfer of a copy, not of a license. The holder of a copy can sell it to someone else and any contractual provisions binding the original holder are not going to bind the purchaser, cause contracts may run with the land, but they don't run with chattels. (I take no posisition as to the truth of the latter provision in New Hampshire or under the provisions of UCITA.) And a clause against transfer is at common law not enforceable even against the original purchaser; that is a classic unenforceable restraint on alienation.

--
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
 EMAIL: junger@samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu   
        NOTE: junger[_at_]pdj2-ra.f-remote.cwru.edu no longer exists