Shrinkwrap (contract law): Difference between revisions

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Shrinkwrap contracts or shrinkwrap licenses are boilerplate contracts packaged with products; use of the product is deemed acceptance of the contract.

Web-wrap, click-wrap and browse-wrap are related terms which refer to license agreements in software which is downloaded or used over the internet.

A software license agreement is commonly called an end user license agreement (or EULA).

The term 'shrink wrap' describes the shrink wrap plastic wrapping which coats software boxes or the terms and conditions which comes with products on delivery.

Shrink wrap assertions are unsigned permit understandings which state that acknowledgement on the client of the terms of the assertion is demonstrated by opening the shrink wrap bundling or other bundling of the product, by utilisation of the product, or by some other determined instrument.

United States

The legal status of shrink wrap contracts in the US is somewhat unclear. In the 1980s, software license enforcement acts were enacted by Louisiana and Illinois in an attempt to address this issue, but parts of the Louisiana act were invalidated in Vault Corp. v. Quaid Software Ltd., and the Illinois act was quickly repealed.^[1] Case history also fails to clear up the confusion. One line of cases follows ProCD v. Zeidenberg which held such contracts enforceable (see, e.g., Bowers v. Baystate Technologies^[2]) and the other follows Klocek v. Gateway, Inc., which found the contracts at hand unenforceable (e.g., Specht v. Netscape Communications Corp.^[3]), but did not comment on shrink wrap contracts as a whole. These decisions are split on the question of consent, with the former holding that only objective manifestation of consent is required while the latter require at least the possibility of subjective^{[clarification needed]} consent. In particular, the Netscape contract was rejected because it lacked an express indication of consent (no "I agree" button) and because the contract was not presented directly to the user (users were required to click on a link to access the terms). However, the court in this case did make it clear that "Reasonably conspicuous notice of the existence of contract terms and unambiguous manifestation of assent to those terms by consumers are essential if electronic bargaining is to have integrity and credibility."^[4]

References

^ Epstein, Michael A. (2006). Epstein on Intellectual Property. Aspen Publishers Online. pp. 11–80. ISBN 978-0-7355-5983-7.
^ Contracting Case Law : Brower v. Gateway 2000, 13 August 1998, retrieved 5 March 2011
^ "Archived copy" (PDF). www.nysd.uscourts.gov. Archived from the original (PDF) on 12 July 2001. Retrieved 13 January 2022.{{cite web}}: CS1 maint: archived copy as title (link)
^ Specht, 306 F.3d 17.

@@ Line 1: / Line 1: @@
+{{Short description|Contracts packaged with products}}
-{{merge to|End-user license agreement|date=August 2011|discuss=Talk:Software_license_agreement#Merge_with_article_.22Software_license.22}}
+{{Globalize|article|USA|2name=the United States|date=April 2012}}
+'''Shrinkwrap contracts''' or '''shrinkwrap licenses''' are [[boilerplate contract]]s packaged with products; use of the product is deemed acceptance of the contract.
-'''Shrink wrap contracts''' are license agreements or other terms and conditions of a (putatively) contractual nature which can only be read and accepted by the consumer after opening the product. The term describes the [[shrinkwrap]] plastic wrapping used to coat [[software]] boxes, though these contracts are not limited to the software industry. '''Web-wrap''', '''[[clickwrap|click-wrap]]''' and '''[[Browse wrap|browse-wrap]]''' are related terms which refer to license agreements in software which is downloaded or used over the [[internet]].
+'''Web-wrap''', '''[[clickwrap|click-wrap]]''' and '''[[Browse wrap|browse-wrap]]''' are related terms which refer to license agreements in software which is downloaded or used over the [[internet]].
-A [[software license]] is commonly called an [[Software license agreement|end user license agreement]] (or EULA).
+A [[software license]] agreement is commonly called an [[Software license agreement|end user license agreement]] (or EULA).
-==United States==
+The term 'shrink wrap' describes the shrink wrap plastic wrapping which coats software boxes or the terms and conditions which comes with products on delivery.
-The legal status of shrink wrap contracts in the US is somewhat unclear. In the 1980s, software license enforcement acts were enacted by [[Louisiana_Software_License_Enforcement_Act|Louisiana]] and Illinois in an attempt to address this issue, but parts of the Louisiana act were invalidated in ''[[Vault Corp. v. Quaid Software Ltd.]]'', and the Illinois act was quickly repealed.<ref name=epstein>{{cite book|last=Epstein|first=Michael A.|title=Epstein on Intellectual Property|year=2006|publisher=Aspen Publishers Online|isbn=9780735559837|pages=11–80|url=http://books.google.com/books?id=Wne6MqjEk-AC&dq=louisiana+illinois+%22software+license+enforcement+act%22&source=gbs_navlinks_s}}</ref> Case history also fails to clear up the confusion. One line of cases follows ''[[ProCD v. Zeidenberg]]'' which held such contracts enforceable (see, e.g., ''[[Bowers v. Baystate Technologies]]''<ref>{{cite |url=http://www.kentlaw.edu/legalaspects/tony_brower.htm |title=Contracting Case Law :  Brower v. Gateway 2000 |date=1998-08-13 |accessdate=2011-03-05}}</ref>) and the other follows ''Klocek v. Gateway, Inc.'', which found the contracts at hand unenforceable (e.g., ''[[Specht v. Netscape Communications Corp.]]''<ref>[http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/01-07482.PDF]{{Dead link|date=March 2011}}</ref>), but did not comment on shrink wrap contracts as a whole. These decisions are split on the question of consent, with the former holding that only objective manifestation of consent is required while the latter require at least the possibility of subjective consent.  In particular, the Netscape contract was rejected because it lacked an express indication of consent (no "I agree" button) and because the contract was not presented directly to the user (users were required to click on a link to access the terms). However, the court in this case did make it clear that "Reasonably conspicuous notice of the existence of contract terms and unambiguous manifestation of assent to those terms by consumers are essential if electronic bargaining is to have integrity and credibility." Specht, 306 F.3d 17.
+Shrink wrap assertions are unsigned permit understandings which state that acknowledgement on the client of the terms of the assertion is demonstrated by opening the shrink wrap bundling or other bundling of the product, by utilisation of the product, or by some other determined instrument.
+==United States==
+The legal status of shrink wrap contracts in the US is somewhat unclear. In the 1980s, software license enforcement acts were enacted by [[Louisiana Software License Enforcement Act|Louisiana]] and Illinois in an attempt to address this issue, but parts of the Louisiana act were invalidated in ''[[Vault Corp. v. Quaid Software Ltd.]]'', and the Illinois act was quickly repealed.<ref name=epstein>{{cite book|last=Epstein|first=Michael A.|title=Epstein on Intellectual Property|year=2006|publisher=Aspen Publishers Online|isbn=978-0-7355-5983-7|pages=11–80|url=https://books.google.com/books?id=Wne6MqjEk-AC&q=louisiana+illinois+%22software+license+enforcement+act%22}}</ref> Case history also fails to clear up the confusion. One line of cases follows ''[[ProCD v. Zeidenberg]]'' which held such contracts enforceable (see, e.g., ''[[Bowers v. Baystate Technologies]]''<ref>{{citation |url=http://www.kentlaw.edu/legalaspects/tony_brower.htm |title=Contracting Case Law : Brower v. Gateway 2000 |date=1998-08-13 |access-date=2011-03-05}}</ref>) and the other follows ''Klocek v. Gateway, Inc.'', which found the contracts at hand unenforceable (e.g., ''[[Specht v. Netscape Communications Corp.]]''<ref>{{cite web |url=http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/01-07482.PDF |title=Archived copy |website=www.nysd.uscourts.gov |access-date=13 January 2022 |archive-url=https://web.archive.org/web/20010712051451/http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/01-07482.PDF |archive-date=12 July 2001 |url-status=dead}}</ref>), but did not comment on shrink wrap contracts as a whole. These decisions are split on the question of consent, with the former holding that only objective manifestation of consent is required while the latter require at least the possibility of subjective{{huh|date=July 2023}} consent.  In particular, the Netscape contract was rejected because it lacked an express indication of consent (no "I agree" button) and because the contract was not presented directly to the user (users were required to click on a link to access the terms). However, the court in this case did make it clear that "Reasonably conspicuous notice of the existence of contract terms and unambiguous manifestation of assent to those terms by consumers are essential if electronic bargaining is to have integrity and credibility."<ref>Specht, 306 F.3d 17.</ref>
-It may be worth noting that the user in the Zeidenberg case had purchased and opened the packages of multiple copies of the product, and therefore could not easily prove he remained ignorant of the contract/license; whereas in many cases, the so-called shrink-wrap "license" agreement has not been reviewed at the time of purchase (having been hidden inside the box), and therefore is arguably not part of the implicit legal agreement accompanying the sale of the copy, and is thus not enforceable by either party without further "manifestation of assent" to its terms. In general, a user is not legally obligated to read, let alone consent to any literature or envelope packaging that may be contained inside a product; otherwise such transactions would unduly burden users who have no notice of the terms and conditions of their possession of the object purchased, or the [[blindness|blind]], or those unfamiliar with the language in which such terms are provided, etc.  At the very least, the fair trade laws of most U.S. states would grant a buyer the right to cancel the purchase of a product where an enclosed contract provides terms of which purchaser can not be aware at the time the product is purchased.
 == See also ==
+* ''[[Data General Corp. v. Digital Computer Controls, Inc.]]''
-* [[Boilerplate contract]]
-* [[Data General Corp. v. Digital Computer Controls, Inc.]]
+* ''[[SoftMan Products Co. v. Adobe Systems Inc.]]''
+* ''[[Vernor v. Autodesk, Inc.]]''
-* [[Electronic signature]]
+* [[Contract of adhesion]], another name for a "take it or leave it" contract
-* [[Electronic Signatures in Global and National Commerce Act]] (ESIGN)
-* [[SoftMan Products Co. v. Adobe Systems Inc.]]
 ==References==
@@ Line 26: / Line 30: @@
   | first = Cory
   | last = Doctorow
-  | author = Cory Doctorow
+  |author-link1= Cory Doctorow
   | url = http://www.informationweek.com/news/management/showArticle.jhtml?articleID=197003052
   | title =  Shrinkwrap Licenses: An Epidemic of Lawsuits Waiting to Happen
   | publisher = [[InformationWeek]]
   | date = 3 February 2007
-  | accessdate = 2007-02-03
+  | access-date = 2007-02-03
 }}
@@ Line 37: / Line 41: @@
   | first = Debora
   | last = Halbert
-  | author = Debora Halbert
   | url = http://www.murdoch.edu.au/elaw/issues/v10n4/halbert104_text.html
   | title =  The Open Source Alternative: Shrink-Wrap, Open Source and Copyright
   | publisher = Murdoch University Electronic Journal of Law
   | date = December 2003
-  | accessdate = 2007-02-20
+  | access-date = 2007-02-20
 }}
-* [http://findarticles.com/p/articles/mi_qa3735/is_199710/ai_n8778077/pg_1?tag=artBody;col1 Shrinkwrap licenses: Consequences of breaking the seal]
 * [http://people.ischool.berkeley.edu/~pam/papers/clr_2b.html Intellectual Property and Contract Law for the Information Age]
-{{Use dmy dates|date=December 2010}}
+{{Use dmy dates|date=February 2021}}
 {{DEFAULTSORT:Shrink Wrap Contract}}
+[[Category:Terms of service]]
 [[Category:Contract law]]
 [[Category:Computer law]]
-[[Category:Software licenses]]
+[[Category:Software licensing]]
-[[de:Shrink Wrap License]]
-[[it:Licenza a strappo]]
-[[ja:シュリンクラップ契約]]

Latest revision as of 19:48, 28 October 2024

United States

See also

References

Further reading