DB>> Please - cite precedent...

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

DB> Translation - there is no precedent;

Translation, poor old Dave resorting to sillyness when he doesnt
like what he sees.

DB> if you were discussing the matter previously, you would at
DB> least have some vague recollection of the issues involved,
DB> or even the organisation/people in question.

Now you are telling ME what I would and would not remember, about a
conversation that you have no knowledge of whatever, let alone just how
explicitly spelt out the other persons statements on that stuff were.
Sure Dave, whatever you recon. You will pardon me if I dont give a stuff
about what you think on the matter when you attempt silly stuff like that.

I was actually discussing this specific matter, the shrinkwrap contracts
and the detail about just what the legal effect of the stuff written on
sealed envelopes containing the disks was. He popped up to comment on it.

he does appear to know what he is talking about and has made some what
appear to be quite convincing comments on the law as far as it affects
the recent MS consent decree stuff and consent decrees in general in
the US antitrust scene. Again, I didnt save any of that tho with 20:20
hindsight, that may also be handy in the future too. Thats life, like
I say, I often regret not saving stuff.

If you dont like that, too bad, you can do the research yourself.

DB> FWIW, Knight and Fitzsimons (Addison-Wesley, 1990) cite that
DB> a number of U.S. states have actually *legalised* shrinkwrap
DB> licences and codified their legitimacy in legislation.  This
DB> doesn't even consider the fact that zip U.S. law means over here.

Thats another matter entirely. As you say, not relevant. The question
essentially revolves around whether you do in fact have a contract
with the supplier by the act of opening the package and say reading
the common 'if you dont agree with these conditions, send it back
for a refund' type stuff.

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

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

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

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

That then involves just what is 'accepts' in the situation we are talking
about. Still not as cut and dried as you are attempting to suggest.

You could have said the same thing about the ticket, the conditions are
on the back, they claimed that you basically agree to those conditions.
You dont, it aint that simple. There is the whole 'common carrier'
question too.

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

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

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

Which just plain isnt relevant coz there is no signing involved in what we
were talking about.

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

And then there is the question of whether there is any equivalent of 'the
form' in the case we were discussing.

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

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

Doesnt prove a damned thing. All that stuff applys just as much to the
tickets which purported to waive your rights. It aint as simple as that
analysis you list would suggest, you havent waived your rights in the
ticket case. Even in the situation where you sign a form say when getting
your car repaired, it aint as simple as you suggest either, they cant just
have a para in the form saying they dont have any obligation to take
reasonable care of your car, the para is useless as a means of removing
that right of yours, whatever is in the form.

DB> Prima facie, it would seem that in many circumstances a vendor's
DB> "shrinkwrap licence" *would* be valid,

Nope, as the ticket example shows so clearly, it aint that simple.

DB> the vendor *would* have locus standi;  which way the court would
DB> decide, of course, is another matter.

And IMO the dearth of legal actions attempting to use those shrinkwrap
licenses to bludgeon customers, shows very very clearly that what they
think is the chance of success. They dont try it coz they have a pretty
fair idea that they would get tossed in the bin and then they are deep
shit trying to bluff the customers. Much better to not test the
proposition in court and continue to bluff. There are plenty who allow
themselves to be bluffed.

DB> Yes, there would be circumstances when the shrinkwrap licence could
DB> very well be declared invalid.

And IMO they would have buckleys with the sort of stuff we were
discussing, explicitly bans on using the object code produced by a
specific compiler for specific uses.

For example if MS tried to impose a condition that you could not use
their compilers to produce an EXE which was OS2 native, coz MS didnt
like their compilers being used to produce apps which helped the
prospects of a competitors OS, they wouldnt stand a chance and you
could do what you liked with a compiler which you bought at retail in
the usual way, with impunity.

DB> References:

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

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

Looks good Dave, so far hasnt substantiated your position one iota tho.

--- PQWK202