Shrink wrap contract
||The examples and perspective in this article deal primarily with the United States and do not represent a worldwide view of the subject. (April 2012)|
Shrink wrap contracts are license agreements or other terms and conditions of a (putatively) contractual nature which can be read and accepted by the consumer only after the consumer opens the product. The term refers to the shrinkwrap plastic wrapping used to coat software boxes, because such packaging makes it impossible for the buyer to have read the contract before completing the purchase. These contracts are not, however, limited to the software industry.
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 v. Quaid Software Ltd., and the Illinois act was quickly repealed. 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) and the other follows Klocek v. Gateway, Inc., which found the contracts at hand unenforceable (e.g., Specht v. Netscape Communications Corp.), 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.
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 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.
- Boilerplate contract
- Data General Corp. v. Digital Computer Controls, Inc.
- Electronic signature
- Electronic Signatures in Global and National Commerce Act (ESIGN)
- SoftMan Products Co. v. Adobe Systems Inc.
- Vernor v. Autodesk, Inc.
- Doctorow, Cory (3 February 2007). "Shrinkwrap Licenses: An Epidemic of Lawsuits Waiting to Happen". InformationWeek. Retrieved 2007-02-03.
- Halbert, Debora (December 2003). "The Open Source Alternative: Shrink-Wrap, Open Source and Copyright". Murdoch University Electronic Journal of Law. Retrieved 2007-02-20.
- Intellectual Property and Contract Law for the Information Age