Re: click-wrap contracts and libraries

Even if the copyright act permits certain conduct, if the library has agreed contractually not to do so, lending the software would at least be a breach of contract if not of copyright.

The argument could be made that the license is, for one reason or another, not enforceable against the library. The courts in California, however, have gone both ways on the issue of whether a party that distributes but does not install software is bound by the license agreement. See, e.g., Adobe Systems, Inc. v. Stargate Software Inc., 216 F. Supp. 2d 1051 (N.D. Cal. 2002)(Distributor bound by license terms); Softman Products Co., LLC v. Adobe Systems, Inc., 171 F. Supp. 2d 1075, 45 U.C.C. Rep. Serv. 2d 945 (C.D. Cal. 2001)(license terms not enforceable because software not installed and distributor never saw or indicated assent to terms).

Kevin Grierson

Kevin W. Grierson
Willcox & Savage, P.C.
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>>> glabbott[_at_]library.syr.edu 01/30/03 08:21AM >>>
As noted below the shrink-wrap license may not matter in California as for the right to loan section 119 provides exemptions for some libraries.
<snip> Received on Fri Jan 31 2003 - 14:32:37 GMT