Re: Consideration in a Shrinkwrap Contract

From: Bruce E. Hayden <bhayden[_at_]ieee.org>
Date: Mon, 30 Oct 2000 16:27:02 -0700

"Peter D. Junger" wrote:

>

> 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.

Interesting theory. However, the reality I see is that this means that if you purchase a CD from a store, then potentially you may be able to sell the CD. However, it is not clear how that fits into actually installing and using the software. Does 117 allow pretty much anything?

The problem as always is that you need to make copies in order to use software, and secondly that you cannot very well give someone a copy of software that is on your hard drive (unless you give them the entire hard drive), as that is the creation of another copy (presumably not under 117).

-- 
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The preceding was not a legal opinion, and is not my employer's.
Original portions Copyright 2000 Bruce E. Hayden,all rights reserved
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Bruce E. Hayden                      bhayden[_at_]acm.org
Phoenix, Arizona                     bhayden[_at_]ieee.org
                                     bhayden[_at_]copatlaw.com

Received on Mon Oct 30 2000 - 23:30:11 GMT