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Shrinkwrap Clauses Go Too Far
Posted by Ernest Miller on Monday, January 20 @ 13:30:33 EST
Contributed by Anonymous
Consumers
Anonymous writes "New York state Supreme Court Justice Marilyn Shafer issued a ruling prohibiting Network Associates from using its end-user license agreements to ban product reviews or benchmark tests. The end-user agreement stated that "The customer will not publish reviews of this product without prior consent from Network Associates Inc." The judge called the company's attempted ban "deceptive" because the licensing agreement's language may cause people to believe that they're breaking the law by reviewing the product without consent. The New York attorney general's office (press release) began investigating the case after Network Associates demanded a retraction and accused a magazine of violating its licensing agreement after the magazine published an unfavorable review of NA's "Gauntlet" firewall software. At the time, the company's agreement stated that people could not review or test Network Associates products without prior approval from the company. The company's control-freakiness may end up costing it a few million dollars as the state of NY is asking the court to impose a $.50 fine for every product sold with this end-user agreement.

Is this the beginning of a shrinkwrap rollback or can we expect to see even more shrinkwrap licenses in our future. How long before our Audio CDs come with a shrinkwrap license?
Editor's note: This blurb was contributed by the great Henry Oh from Stanford Law.
-- PJS

UPDATE 2130ET 22 Jan 2003
Lisa Bowman of C|Net News has a more indepth version of this story (Court: Network Associates can't gag users). - EDM"

 
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Why not shinkwrap everything? (Score: 0)
by Anonymous on Monday, January 20 @ 14:05:36 EST
Books wouldn't be much of a stretch.

What are the legal reasons these kinds of agreements are limited to products which are mostly intellectual "property"?


How long before food with a shrinkwrap license that says you can't sue for food poisoning?


[ Reply to This ]


If these are legal contracts (Score: 0)
by Anonymous on Monday, January 20 @ 15:54:19 EST
Then what stops stores from putting signs on their front doors:

"By opening this door you agree to abide by the terms of use as defined at the website http://walmart.com/store_eula.html. These terms may be changed at any time without notice. If you do not agree to these terms you must leave immediately."

Those terms could do crazy things like, say, prohibit disclosure of pricing information.

I know that a law was passed a few years ago that made "electronic signatures" (i.e. clicking a button) as strong as a legal signature (even though there is no way to tell who clicked or even if the button was in fact ever clicked). I think software companies lobbied for this so that software agreements would be stronger. But is an action you would take anyway (ever try to use a product without opening the box?) a strong enough confirmation for the courts? If so, I expect to see a lot more of these contracts in the future.


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Re: Shrinkwrap Clauses Go Too Far (Score: 1)
by TheTibetanTraveller on Monday, January 20 @ 19:14:11 EST
(User Info | Send a Message) http://www.aufait.net/~garnet
EULA's are vile because they allow software companies to get all the use copyright law to get the benifits of trade secret laws without any of the expense or disadvantage associated with it.

IP is different then regular property. If a manufactorer of a refigerator wanted to use trade secret law, he couldn't sell it, he wold have to lease it. Not only does he incur the cost of obtaining a signature on the dotted line, he has the expense of handling the return when the lease expires. If they didn't come get it when the lease expired, the courts would rule that it is abandened property.

Software is doesn't have either. The cost of including the EULA is minimal and they don't require that you return the software. If they want a contract, let them do what the cell phone companies do, get a signature in the store.





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