Re: Just-out comment on *Eldred*

From: Kevin Grierson <kgrierson[_at_]wilsav.com>
Date: Fri, 04 Oct 2002 09:39:54 -0400

FWIW, I am working on a publication summarizing cases dealing with the enforceability of shrinkwrap and clickwrap agreements, and it appears that the vast majority of courts still treat mass market software transactions as sales and not licenses. In the iLan v. NetScout case out of the D. of Mass., the court found that the UCC wasn't technically applicable but decided that it would apply it anyway, as the rules were in keeping with the party's expectations.

Also FWIW, the courts are much more evenly split on the enforceability of such shrinkwrap agreements, though the trend seems to be toward the acceptance of a "money now, terms later" method of contract formation.

Kevin Grierson

Kevin W. Grierson
Willcox & Savage, P.C.
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>>> ket354[_at_]yahoo.com 10/03/02 10:09AM >>> Doesn't this all go back to the fallicy of software purchases as licenses?

The thinking of the software creator being "I have this code that I have created, though it may or may not include originality. If you want this code you can not buy it from me, but you may LICENSE a copy for use as I prescribe. Otherwise you may not have the code." Sort of like renting a car with certain restrictions that you would not have in your own car (ie only for use in the state you rented in or adjacent states, no travel in foreign countries, etc.).

This seems to work for one off and high cost code, but when a consumer goes into a store and pays seventy bucks for a box with a disk, it sure seems like you bought a copy of the software like you would buy a book. Not licensed a version of the software as if you rented a car.

But that is likely another thread that has been beaten to death . . .

Keith
--- Roy Murphy <murphy[_at_]panix.com> wrote:
> 'Twas brillig when Robert A. Baron scrobe:
> > Perhaps it is the translation of the Aristotle's
> Politics that is being
> > protected.
>
> Perhaps, but Alice in Wonderland isn't a translation
> and the ebook
> version of it has restrictions as well.
>
> --
> Roy Murphy \ CSpice -- A mailing list for
> Clergy Spouses
> murphy[_at_]panix.com \

http://www.panix.com/~murphy/CSpice.html

---

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