Re: click-wrap contracts and libraries

Shrink wrap licenses have generally been found to be enforceable, if the consumer is provided with sufficient notice of the terms, regardless of whether the state has enacted UCITA (and in fact, there have been no cases decided under the UCITA statute that I'm aware of regarding the validity of a shrinkwrap license). Although I have my own doubts about the wisdom of enforcing shrinkwrap licenses, going by body count alone, the majority of courts appear to be following the 7th Circuit's ProCD decision unless they determine that an individual provision (such as Gateway's arbitration provision) is unconscionable. Cases in the federal courts in California, by the way, have gone both ways. Adobe has both won and lost suits over its licensing agreement in CA.

As for the educational use, given that the entire program is being "lent", and that the lending would clearly affect the market for purchases, I wouldn't be very comfortable with a fair use defense under the circumstances described, especially since the common assumption is that the "lending" of software is done so that unlawful copies can be made by the "borrower".

Again, my point was that fair use is rarely a completely cut and dried matter, and if the library wants to avoid liability for breach of the license agreement and/or copyright infringement, then the requester ought to discuss the specifics with an attorney.

Kevin Grierson

Kevin W. Grierson
Willcox & Savage, P.C.
1800 Bank of America Center
One Commercial Place
Norfolk, Virginia 23510

mailto:kgrierson[_at_]wilsav.com
ph: 757/628-5603 fx: 757/628-5566
http://www.wilsav.com
Subscribe to our E-commerce newsletter at http://www.willcoxandsavage.com/pubs_maillist.html

>>> johnl[_at_]iecc.com 01/29/03 09:19PM >>>

But the guy asking the question is in California, not Virginia. Since California isn't a UCITA state, is there any reason to think that shrink-wrap licenses matter in California? Copyright is no bar to lending original legitimately purchased copies of software. Libraries do it all the time.

Also the educational exemptions in 17 USC 110 might apply if running software is considered to be a display or performance of a nondramatic literary work and the place that students use it is something like a classroom.

-- 
John R. Levine, IECC, POB 727, Trumansburg NY 14886 +1 607 387 6869
johnl@iecc.com, Village Trustee and Sewer Commissioner, http://iecc.com/johnl, 
Member, Provisional board, Coalition Against Unsolicited Commercial E-mail