Re: ProCD v Zeidenberg, 908 F.Supp 640

From: Cem Kaner <cemkaner[_at_]netcom.com>
Date: Thu, 18 Apr 1996 09:50:08 -0700

At 04:12 PM 4/17/96 +500, Trotter Hardy wrote:

>

> I think that's absolutely right, and that incentive is another
> reason why courts should be more deferential to contracts--or at
> least, make a contracts and not a copyright preemption analysis--for
> shrinkwraps: doing so would allow centralization vs. decentralization
> decisions to be made on grounds more directly relevant to consumer
> welfare.

The problem with suggesting that courts be more deferential to shrinkwraps  is that these documents are not _contracts_ and they therefore do not deserve the same deference as contracts.

They are unilateral declarations of the law and the rights of the parties by one of the parties, the mass-market publisher. Their contents are certainly directly relevant to consumer welfare, but not in the sense that we should consider reputable -- the typical software shrinkwrap document attempts to disclaim all warranties and to provide the customer with no remedies, even if the product is patently defective, even if the product is misrepresented in its own literature, even if the product was released to the product with full knowledge of the defect.

Laws strike balances between the rights and obligations of different parties. One-sided documents, such as the software shrinkwraps, do not.

I am distressed by the continuing trend of the UCC Article 2B committee in this regard. The proposed Article 2B will make it trivially easy for a software publisher to make most aspects of the shrinkwrapped disclaimer and license enforcible, even those that we might previously have considered contrary to established public policy.

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CEM KANER JD, PhD. Attorney / ASQC-Certified Quality Engineer read Kaner, Falk & Nguyen, TESTING COMPUTER SOFTWARE (2d Ed. VNR) 1060 Highland Court #4, Santa Clara 95050 408-244-7000

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Received on Thu Apr 18 1996 - 16:58:22 GMT