Talk:Shrinkwrap (contract law)

This page and the click-wrap page seem to cover essentially the same topic.

Not really, they are subtley different. - Ta bu shi da yu 02:17, 22 October 2005 (UTC)

Excellent discussion

• http://www.murdoch.edu.au/elaw/issues/v10n4/halbert104_text.html

Ta bu shi da yu 02:17, 22 October 2005 (UTC)

Added to the "further reading" section. Wl219 00:28, 21 February 2007 (UTC)

Signing away copyright rights

I removed the following passage, inserted by an anonymous editor:

For the license to take legal effect, the licenser must be able to present proof of that the presumed licensee has been willing to sign away the copy owner rights granted under copyright: The international copyright treaty, Article 4, equals computer programs with literary works. Thus, computer programs are automatically placed under copyright, the latter which grants the copy owner normal rights use, and others fair use the computer material. The signing away of ones legal rights can normally only be done by a properly signed paper contract, or under some circumstances, orally if supported by witnesses or recordings, or, in even more restricted use, via electronic signatures issued by the local government, as a person charged with violating a license agreement otherwise can merely claim not knowing who opened the box or clicked the agreement box in the install software, and it is not possible for the licenser to provide proof of whom is the purported licencee, nor has the person charged any obligation to provide such proof. In addition, legal rights can only be signed away if local law admits it; so a properly signed paper contract may not be enough to abrogate copy owners rights, unless there are special legal provisions admitting it.

I removed it primarily because if the information contained in it is correct, it seems to have only a narrow application to fair use rights which are protected by coypright laws in some countries - it would not affect the validity of the shrink wrap contract more generally. Thus, it would seem more appropriate to a discussion on copyright/fair use rights than this page. It was also unsupported by evidence (the wipo reference certainly doesn't count) and certainly doesn't apply world-wide. Psychobabble 23:47, 27 August 2006 (UTC)

• It seems that you have misunderstood the issue: Copyright treaty and law are always in effect in the case of computer programs unless the one creating the shrinkwrap agreement can demonstrate that others give up those rights they already have. It applies not only to fair use rights of the general public, but also to the buyer's normal use rights of a copy. Think of a book in plastic where the agreement is tucked inside. It is the person opening the package that agrees to it; not the one that payed for it. The situation is similar to that of Stockholm, Sweden, where originally parking tickets were issued to the driver, not the owner of the car. So the owner of the car, when asked to pay the ticket, would merely remark not knowing who drove the car on the occasion. The collectors of the ticket then will have no-one to collect from, nor is the owner of the car obliged helping with that. So the law had to be changed, so that it is now the car owner that pays the parking ticket. But the law change only applies to public parking tickets: in the case of private parking lots, the issuer of a fine still has to demonstrate who drove the car on the occasion and issue the ticket to that person, as to show the driver is taking the law in his own hands (by parking on a private space where not is allowed to). So there are legal precedents, though not for computer software. - I will leave the editing as it is, though, as to not creating a situation where stuff is moved in and out back and forth.

Sorry, your parking ticket example didn't make things any clearer from where I'm sitting. I still don't see how copyright laws which may or may not enshrine fair use rights in certain countries invalidate shrink-wrap contracts more generally. At the most, they might invalidate certain clauses of shrink wrap contracts relating to fair use, but that information seems more suited to an article on fair use to me. There's all sorts of clauses which could conceivably be in shrink wrap contracts which are invalidated by statute or contract law - non-negotiable statutory warranties, penal clauses, cooling off periods. But these sorts of non-negotiable clauses apply to all contracts so I don't think they bear special mentioning here, let alone an extended discussion. Psychobabble 00:52, 29 August 2006 (UTC)

• There is no claim that copyright laws generally invalidate shrinkwrap contracts by the parking ticket example reasoning. The claim is that, even if a shrinkwrap or clickwrap agreement is valid by law, the copy owner can at will disable its legal enforcement in court. This, I think the trap you fall into: trying to figure out the validity of laws in general, not thinking about the specific handling in the court system. In the parking ticket example, the laws are perfectly valid, but not enforceable in practice in court, in view of that the person responsible is not identifiable, if the car owner so wills. The car owner thus has the choice of making the law unenforceable in practice, though it is a perfectly valid law. In addition, perhaps you mix up the fair rights of the general public with those of the copy owner, which I called normal use rights: there, the normal use of other literary works, such as books, set up standards of copy ownerships. Copyrightable material is not any kind of general property, where the copyright owner has full rights over the use of the property: the copyright owner has the rights over the distribution, but not the use of individual copies. Copyright law, following the principles in the treaty, typically say that computer software is copyrightable, and in addition, copyrightable material is automatically covered by copyright law without specific registration. Thus, if one buys a shrinkwrap computer program, copyright law is applicable to that package until the owner of the package has agreed upon something else. In the case of the shrinkwrap agreement, this is claimed to happen when one opens the box. Suppose it is legally possible to enter such a contract by opening the box. Then it is the person opening the box that agrees to the license, not the owner according to copyright law. So if there is a claim by the licenser of breach of license contract, the owner of the package can simply suggest the licenser to contact the licensee, instead of the owner of the package. A more elaborate version would be asking somebody else opening the package - this is the same thing as asking somebody else signing the contract. The problem with the shrinkwrap and clickwrap agreements, relative written contracts, is that they do not identify the person agreeing to the contract. - In addition, one can note that shrinkwrap licenses, even in the case of multiple packages, do not fulfill the condition that the agreement action is taken after one has gotten the chance to read the contract, because there is no way to ensure that the boxes are identical in contents but by opening them. I know of a case (in the case of a used car sale), where the signed copies of the seller and buyer turned out to be different, in which case the copy of the buyer was (of course) judged valid. So each box must be opened to make sure what the contract says. - And also, even if the contract is properly signed, consumer laws, at least in Sweden, rule over contracts, so that if a contract has a clause that violates consumer law, the consumer law is still in effect, and not the contract clause. Since copyright law is always in effect in the case of computer software, there is the question of how a contract can abrogate those copyright laws.