Re: "Double" Licenses--enforceability of shrinkwrap and clickwrap licenses

[David_Mirchin@silverplatter.com]

In this discussion, there have been many comments which stated outright or
implied that shrink-wrap or click-through licenses are not enforceable.
>From my reading of the case law, this is simply not true: shrink-wraps
and click-through licenses are enforceable.  Courts in different countries
and various jurisdictions in the United States have held them to be
enforceable.  If there are more recent cases or statutes which have
overturned the cases I mention below, I would be very interested in being
referred to them.

1. As for enforceability of shrinkwrap licenses, the first case to
unambiguously hold that they are enforceable is the Scottish case of Beta
Computers (Europe) Limited v. Adobe Systems (Europe) Limited.  FSR (1996)
367.

2. In the United States, ProCD v. Zeidenberg (7th Cir., June 20, 1996)
held shrink-wraps enforceable.  In dicta, it approved of "click-wraps".

3. The ProCD case has been followed by other courts.  For example, in Hill
v. Gateway 2000 (7th Circuit, January 6, 1997) the court permitted phone
orders of goods, with the contract to follow.  It held contract terms
provided in a Gateway 2000 computer box were enforceable, as long as a
refund was offered.  http://www.law.emory.edu/7circuit/jan97/96-3294.html

4. In Brower v. Gateway 2000, Inc. (1998 N.Y. Slip Op. 07522, 1998 WL
481066 (N.Y.A.D. 1 Dept.), Supreme Court Appellate Division, First
Department, August 13, 1998, the court upheld the enforceability of
shrinkwrap license agreement, including the arbitration clause in
question, which was included in the box in which the computer was shipped
to the consumer.

5. As for the enforceability of click-through licenses, CompuServe v.
Patterson (6th Circuit, July 22, 1996) held these licenses to be
enforceable.  http://www.law.emory.edu/6circuit/july96/96a0228p.06.html

6. More recently, in the California spamming case of Hotmail v. Van$ Money
Pie. (N.D. Cal. April 20, 1998) the court relied on the enforceability of
a click-through license to issue a preliminary injunction.  It is true
that this did not go to a full trial, and therefore cannot be relied upon
to the same degree as the CompuServe v. Patterson decision.

SilverPlatter is interested in using licenses which are enforceable, and
which address our interests as well as those of our customers.
Click-through licenses offer the possibility of rapidly delivering
products to our customers, and at a meaningfully lower cost to the
customers and to us.

David Mirchin
Vice President & General Counsel
SilverPlatter Information, Inc.
tel: 781-769-2599, ext. 235
davidm@silverplatter.com