Software Licence Agreements

Daniel ...

This has been litigated in a number of states. Generally, the enforceability of such license is highly questionable, particularly in view of "no refund" policy, but it is not a simple "yes/no" issue.

-Daniel

JSonnab...

This is the subject of much debate.  As far as I can tell, there have been no cases squarely addressing this question.  There certainly is an argument that the license is not valid.  Again, this notion has not been directly tested in court, as far as I know.

- Jeff

Isaac

The question (absent the no return policy) has been tested in court with varying results.  For example I believe ProCD, Inc. v. Zeidenberg involved similar facts and is a case in which such licenses have been found enforceable.   OTOH, one of the considerations in ProCD was that Zeidenberg had the option to return the software.

Jurisdictions have applied various law to license agreements.  A few jurisdictions have applied UCC principles and have concluded that agreement terms discovered after purchase are unenforceable.   A couple of jurisdictions (I believe including Virginia) have adoped UCITA under which such licenses would be found to be acceptable unless the terms were unconsionable.

With regard to a no return policy, it might be that some jurisdictions would find that the no return policy is unenforceable without invalidating a license term.

Another thing that must be taken into account is what the users rights are when there is no license.    Even when the license terms are not available, the outside of the package may make it clear the vendor's position that the software is being licensed rather than purchased.   Presumably the buyer is able to see that information prior to purchasing or opening the software.   In that situation, the user may not be able rely on 17 USC 117 to provide a right to run the software because he is a licensee rather than an owner.   At least some court's would agree.  If a court accepts the vendor's argument, running the software without accepting the license terms constitutes infringement.

erranti...

I was just looking at this blog today... this might be of interest to you:

http://www.ipinfoblog.com/archives/licensing-law-issues-29-shrinkwraps-are-enforceable-contracts.html

LJP

Quote

Isaac

"The person must have a chance to say no and walk away from the deal, with a refund of what the person might have already paid."

This line is from a summary of what UCITA requires,  but UCITA is statutory law in only two states.   UCITA is quite unpopular elsewhere with at least one state legislature passing a resolution stating explicitly that UCITA is not the law in that state.

JSonnab...

The ProCD case is an interesting one.  A quick shep shows it's been questioned by some courts and outright dissed by others.  I'm also not sure the reasoning would stand up in any broad sense, but it is the law in the Seventh Circuit for the moment.

I still think the question is far from settled, and until more varying fact patterns in the shrink-wrap world make there way before judges, will remain largely that way.

- Jeff