One might say the same of the Uniform Commercial Code, virtually all of whose provisions are variable by contract.
On the other hand, any kind of shrinkwrap (or, shall we coin a phrase for contract terms posted in the store, "gilt-framed") licenses are pure contracts of adhesion and should be taken no more seriously than any other such wishful thinking on their proponents' part, especially since the licensor in such situations is not even available at the point of sale to negotiate the terms.
There was an article in the Harvard Law Review a few years ago that, unsurprisingly, took the position that contracts of adhesion should be treated as presumptively invalid unless the imposer proved equal bargaining power with the particular buyer. I was skeptical of the argument at the time, but am beginning to think that such demotic principles need to be applied to keep the Ferengi from seizing control of the legal system.
On Fri, 20 Oct 1995, Karjala, Dennis wrote (among other things):
>
> I simply reiterate the view that it shouldn't make any difference
> whether the conditions of the shrinkwrap license are brought to the
> attention of the purchaser. The copyright balances are drawn for the
> benefit of society as a whole. As to published works, we cannot allow
> a formal "contract" device to override the policies underlying the
> idea/expression distinction, the first-sale doctrine, fair use, and the
> many other limitations on copyright owners' rights. If we could, and
> assuming a similar device could be used for functional works (the
> subject matter of patent), both copyright and patent law would become
> mere matters of contract. Is that all Congress thought it was doing in
> debating the 1976 Act for 20 years?
Received on Tue Oct 24 1995 - 15:34:35 GMT
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