Re: Used Software

From: Bruce Hayden <bhayden[_at_]copatlaw.com>
Date: Wed, 11 Oct 1995 07:55:51 -0600

Paul Heald replies:
>
>> When a person buys used software, the "shrink wrap" is gone. What are
>> the obligations of the new owner?
>
> A "shrink wrap" license is a contractual offer that is accepted
> by and when the buyer unwraps the software. A subsequent buyer of
> the software is not bound by a contract entered into by his seller.
> The second-hand buyer would still be constrained by copyright law,
> but not by the original license. One possible exception might exist
> for a second-hand buyer who was familiar with the terms of the
> license and intentional induced the first buyer/seller into violating
> those terms. Under the right conditions, a cause of action for
> intentional interference with contractual relations might be made out.

I am curious how you can contend that any contract was entered at the time the buyer unwraps the software. Ignoring UCC II at this point, (i.e. using Restatement law), I would suggest that the alleged bargain is not supported by consideration on the part of the vendor. Rather, the copy of the software and documentation, etc. was purchased at the time the buyer paid for it. For example, you go to a software store and buy a copy of software. You own the software because that is what you realisticly believe you purchased. The opening of the shrinkwrap comes too late, sometimes days, or even months after the transaction is complete. It cannot be the result of a meeting of the minds since the buyer probably did not know the specifics when making the purchase.

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The preceding was not a legal opinion, and may not be my employers'. Orignal portions Copyright 1995 Bruce E. Hayden,All Rights Reserved. My work may be copied in whole or part, with proper attribution, as long as the copying is not for commercial gain.

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Bruce E. Hayden                                bhayden[_at_]acm.org               
Austin, Texas                                  bhayden[_at_]copatlaw.com

Received on Wed Oct 11 1995 - 12:59:27 GMT