Re: Used Software

When sellers fail to bargain for shrink wrap conditions, shrink wrap conditions fail to enter the contract. Would results differ where buyers purchase software from sellers' displays and shrink wrap conditions were visible?

CRAIG S. ROSER

                                                 4222 Fred George Road
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In Message Thu, 12 Oct 1995 MLEMLEY[_at_]mail.law.utexas.edu (Mark Lemley) writes:
>
>>>> When a person buys used software, the "shrink wrap" is gone. What are
>>>> the obligations of the new owner?
>>>>
>>>> K Kothmann
>>>
>>>*****************
>>>
>>> You are assuming that the shrinkwrap controlled the terms of the
>>> transaction with the first purchaser -- court decisions are pretty
>>> uniformly to the contrary.
>>>
>>> But if you do make that assumption, there is a simple answer -- every
>>> shrinkwrap license I have seen prohibits you from selling or
>>> transferring the software to someone else without permission. So the
>>> answer is, you had no right to sell it to them in the first place.
>>
>> How does this deal with the obligations of the buyer if the owner does
>> not inform the buyer of the shrink wrap license?
>>
>> Martin Perlberger
>>
>**************
>
> You're right, it doesn't. My best guess is that if the buyer receives
> the software without knowledge of the license agreement, the buyer is
> not bound to the license, and is limited only by copyright law, while
> the seller may be liable for breach of the license.
>
> Again, all this makes the (counterfactual) assumption that a shrinkwrap
> license would be enforced.
>
> Mark Lemley
> Assistant Professor, University of Texas School of Law
> Of Counsel, Fish & Richardson, P.C.
> mlemley[_at_]mail.law.utexas.edu
Received on Mon Oct 16 1995 - 12:04:09 GMT