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Re: [dvd-discuss] Interesting 1st sale-shrinkwrap-EULA-(c) infringementcase



On Friday 02 November 2001 08:38, Bryan Taylor wrote:

> If this case holds, I believe it will cut mandatory EULA enforcability off at
> the knees. Since the transaction that brings the software to the end user is a
> "sale", 17 USC 117 gives the "owner" the right to make an "adaption" for use in
> a machine. Thus the contract that the EULA purports to offer is a bunch of
> restrictions in exchange for something you already have. Contract law depends
> on two things: assent and consideration. Consideration means each side gives
> something to the other. If you already own the software, the licence doesn't
> give you anything because you can already use the software by 17 USC 117, so
> there is no contract. 
> 
> The assent issue has been hotly debated, but may be irrelevent. Many courts
> have asked whether a clickwrap actually is "assent" sufficient to enter into a
> contract. Most have ruled that it is an attempt to modify the contract of sale,
> and under the Uniform Commericial Code requires a documented assent. A few
> courts have said that it is part of the original "money now, terms later"
> agreement, so that the act of continuing indicates assent. 

I've been curious whether Microsoft's preload EULA is enforcable for similar
reasons.  Their stuff comes preloaded on the hardware, and the EULA claims
that if you don't agree to the terms you return the bits to the OEM.  The
OEMs insist that it's not their problem, so talk to MS; MS says it's not their
problem so talk to the OEM.  Neither way can you get a refund.  So, if there's
no possibility of a refund -- is there really a contract?  Or did I just get some
copyrighted material (similar to the owner's manual) that was just stuffed
into the box?

(Also note that those preload EULAs are *extremely* restrictive.)

-- 
| I'm old enough that I don't have to pretend to be grown up.|
+----------- D. C. Sessions <dcs@lumbercartel.com> ----------+