On Sep 18, 1994 at 09:33, Rod Speed of 3:711/934.2 wrote:

 DB>> Please - cite precedent...
 RS>
 RS> You can wait as eagerly as you like Dave. I was discussing the matter a
 RS> while ago in an international echo with a lawyer working in that field
 RS> in the US and didnt save any of that thread. You will just have to do
 RS> the research yourself if you want to chase it up.

Translation - there is no precedent;  if you were discussing the matter
previously, you would at least have some vague recollection of the issues
involved, or even the organisation/people in question.  FWIW, Knight and
Fitzsimons (Addison-Wesley, 1990) cite that a number of U.S. states have
actually *legalised* shrinkwrap licences and codified their legitimacy in
legislation.  This doesn't even consider the fact that U.S. law means zip
over here.

 RS> Ditto for purported denial of liability on tickets etc.

Agreed;  further to the concept of "shrinkwrap licences being
invalid", I found the following points in Latimer (CCH, 1993):

    1.  A person who accepted an offer which is based on standard
        conditions, the terms of which were all specifically brought to
        his notice, is bound by these conditions, even if he expressed
        his objections to them.

        - Walker v York and North Midland Ry (1853) 2 E & B 750.
        - Eric Gnapp Ltd v Petroleum Board [1919] 1 All ER 930.

    2.  If a person accepted an offer made subject to standard conditions,
        but was unaware of their contents, the first question to ask is
        whether he signed the form containing the conditions or not:-

        (I)  If he signed the form he would be bound by the conditions,
             even if he did not know the language in which they were
             printed.

             - Henderson v Stevenson *1875) LR 2 HL (Sc) 470 at p 474.
             - Parker v SE Ry (1887) 2 CPD 416 at p 421.
             - Roe v Naylor [1917] 1 KB 713 at p 716.
             - Hood v Anchor Line [1918] AC 837 at p 845.

        (II) If he did not sign the form the second question to ask is
             whether he knew of the existence of the conditions:

             (i)  If he knew of the existence of the conditions he will
                  be bound by them.

[And the list goes on - this is all quoted from HB Sales' "Standard
form contracts" (1953) 16 MLR 318.]

Prima facie, it would seem that in many circumstances a vendor's
"shrinkwrap licence" *would* be valid, the vendor *would* have
locus standi;  which way the court would decide, of course, is another
matter.  Yes, there would be circumstances when the shrinkwrap licence
could very well be declared invalid.

References:

    Knight, P. and Fitzsimons, J.  (1990).  "Legal Environment of
        Computing, The".  Sydney: Addison-Wesley.

    Latimer, P.  (1993).  "Australian Business Law" (13th ed.).
        Sydney: CCH.

 DB>> I'm not saying that it is;  I'm merely indicating that this stuff
 DB>> isn't "in the realm of the public domain" (wherein licence
 DB>> restrictions are a shere lunacy), therefore licence restrictions are
 DB>> not so out-of-place.
 RS>
 RS> Says SFA about whether what they purport to be license conditions are
 RS> actually legally binding on stuff like the object code stuff tho.

Exactly Rod, it does say Sweet Fanny Addams about that - it wasn't meant to
address that subject;  it was addressing the concern that the licence may
somehow be invalid because of the "freely available" nature of
the software.


    - dave
    david{at}cagney.nepean.uws.edu.au

---