Re: Consideration in a Shrinkwrap Contract

At 8:36 AM -0500 10/28/00, Ralph Clifford wrote:
>>And your solution is that the vendors of software need to abandon mass
>>market distribution and require each purchaser to "COME ON IN AND NEGOTIATE
>>A DEAL THAT CAN'T BE BEAT...." And when you find yourself paying the
>>transaction costs of an automobile lease, you can console yourself with the
>>assurance that there's no mileage limitation on the deal.
>>
> It is, after all, the distributors of software who wish to change the
>distribution norms provided by the law.

That is a uniquely legal-academic perspective. "Distribution norms" are established by commerce, not law. Law struggles to keep up with the pace set by commerce. It is really a handful of legal formalists who wish to change the now well-settled distribution norm for software. Software was distributed by license from the beginning, and it wasn't a problem when there was a blue-suited IBM executive with an expense account for every owner of a mainframe. Enter the desktop and the creation of an unimagined consumer mass market for software. UCITA is only the last in a tradition of re-making the law to accomodate social and commercial developments that were uncontemplated (and potentially thwarted) by legal formalisms: common carrier regulation, the 19th Amendment, the UCC, no-fault divorce, the Securities and Exchange Act, minimum wage laws.... I don't mean that you have to abandon the rule of law every time it comes into conflict with social or economic change, but you have to do better than:

>I have no problem whatsoever of
>requiring the party who wishes to modify a transaction from what the law will
>assume into another form to undertake whatever is legally required to achieve
>that result. If this is too expensive for software distributors to do, then
>maybe they shouldn't do it!

I guess that's right -- if the law is unable to come to terms with the commercial norm -- but: 1) as yet, software developers have no reason to think that their distribution norm is not legally permissible because they've been doing it for years without generally unfavorable legal consequences; and 2) you wouldn't like the alternatives: copy protection, single installation, programmed license expiration, optional semi-annual renewal codes (all offered "as is" -- no agreement required).

John Noble Received on Mon Oct 30 2000 - 23:10:04 GMT