Re: Shrinkwrap Madness

[Kent Mulliner <mulliner@ohio.edu>]

David et al.

         While hardly a lawyer (although you'd think I would have to be to
cope with all this license mess), a key problem is that since I am buying
for a library instead of myself, I wouldn't be considered "mass-market"
under UCITA.  At a briefing sponsored by Nationwide Insurance a month ago,
I was advised that even obvious mass-market exceptions would not apply if
I operate any business from my home.  The following is the advice of the
4cite site on the question:

>First, the "right to return" applies only to consumers purchasing
>"mass-marketed" software, and not to businesses or software used for
>any type of commercial purpose. Second, this right instantly evaporates
>when the "I Agree" button is clicked, which occurs before a consumer
>can even load the program to see if it is even a program he/she wants,
>regardless of the license terms.

         Clearly there are sufficient problems with licenses without UCITA
giving software publishers a loaded gun (self-help to disable programs).  
As I understand that the movie industry has done and that the insurance
industry is attempting in Virginia, maybe we should simply have the UCITA
laws exempt libraries or clearly state that all library transactions are
covered as mass-market rather than as commercial transactions.

K. Mulliner       Collection Development Coordinator
Ohio University Libraries               Phone: 740-593-2707
Athens, OH 45701-2978, USA              FAX:    740-593-2708
mulliner@ohio.edu

____

At 07:40 PM 12/22/00 -0500, you wrote:

>I would add that UCITA provides a clear, and reasonable, solution to your
>examples:
>
>These are presumably mass market licenses and would not be enforceable as
>structured.  When the licensee is able to review the entire license (on the
>CD-ROM), the licensee can decide that he/she doesn't agree with the terms. 
>If
>so, the licensee has the right to return the product, and to get a refund 
>for the cost of the product and the cost of return postage.
>
>David Mirchin
>Vice President & General Counsel
>SilverPlatter Information, Inc.
>100 River Ridge Drive
>Norwood, MA  02062
>USA
>dmirchin@silverplatter.com
>Tel: +1-781-769-2599, x235
>Fax: +1-781-769-8763
>
>Adjunct Professor of Law
>Advising an Internet Company
>Boston College Law School
>http://www2.bc.edu/~mirchin/
>
>Kent Mulliner wrote:
>
> >          As I have always appreciated Catch 22, I find particular joy in
> > the licenses for 2 CD-ROMs we received today accompahying books, and share
> > then in the interest of holiday entertainment.
> >
> > With a book, Econometric Foundations (Cambridge University Press):
> > "Recipient's unsealing of the envelope enclosing the media and contents or
> > use of the media or contents subjects Recipient to all terms and
> > conditions of use as described in this document and also all terms and
> > conditions of the GAUSS Light (TM) License displayed in the media." and
> > >From a book, Dictionary of Minor Planet Names (Springer), at the top above
> > CD-ROM envelope"Return or Exchange only possible when packaging unopened."
> > and below the envelope, "The use of this software is bound by the terms
> > outlined in the licence agreement. The full text of this agreement can be
> > found on the CD-ROM."