> Isn't this very fact specific? I am not a big buyer of mass-marketed
> software, so perhaps my experience is atypical but I have seen
> signs on software racks in some bookstores which say things like,
Definately fact specific. This is evidenced by the cases, especially the split result in the Arizona case.
> "This software is covered by a license agreement. Certain important
> terms are printed on the cover. A complete copy of the license copy
> can be seen by asking a salesperson. Etc., etc."
Well, I would love to see provisions on the cover. But the best you usually see is a reference to stuff on the inside. But of course, most don't even have that.
As for getting the terms from a salesman, sure that might work, if he had the proper terms immediately available. But he usually doesn't, and you would face proving that the purchaser saw the sign.
> In such a case, I can see no reason why the license should not be
> enforceable, neither under the UCC principle of unilateral post sale
> modification nor under traditional contract principles. Obviously, it
> is a bad idea to try and surprise customers with undisclosed terms,
> but why does there seem to be such hostility to the attempt to enforce
> terms beyond those taken "off the rack" from copyright, provided that
> those additional terms are adequately disclosed? Don't we all agree
> that voluntary exchanges are wealth increasing? Why are shrink-wrap
> licenses (assuming their terms are disclosed) an exception to that rule?
If the terms were disclosed up front, you wouldn't have shrinkwrap. The shrinkwrap title comes from the attempt to validate the after acquired provisions. If they were up-front, they wouldn't be after acquired, and so there would be no need for the shrinkwrap fiction.
Bruce E. Hayden bhayden[_at_]acm.org Austin, Texas bhayden[_at_]copatlaw.comReceived on Tue Oct 17 1995 - 13:00:40 GMT
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