On Apr 8, 2008, at 4:58 AM, Ted Mittelstaedt wrote: > > You really need to be careful here. Keep in mind > that for the last decade software vendors have been scruplously > avoiding having shrinkwrap licenses tested in court, there's not been > a single court case of a software vendor (like Microsoft or Cisco) > suing anyone for violating a shrinkwrap license that they did not > explicitly sign and agree to abide by.
Not withstanding the issue of first sale doctrine, I don't think this is true. In _ProCD, Inc. v. Zeidenberg_, 86 F. 3d. 1447 (7th Cir. 1996) the Seventh Circuit said that "Shrinkwrap licenses are enforceable unless their terms are objectionable on grounds applicable to contracts in general (for example, if they violate a rule of positive law, or if they are unconscionable)." They further extended this to terms included in the box with hardware in _Hill v. Gateway 2000_, 105 F.3d 1147 (7th Cir. 1997). The Hills received a Gateway computer with terms and conditions inside including an arbitration clause. The Hills sought to get out of the arbitration clause, but the court held that because they kept the computer more than thirty days, that they had assented to the terms in the contract contained in the computer box. Note that the Uniform Commercial Code 2-204(1) says that "A contract for the sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract." The fact that you kept your Cisco router and operated it could be interpreted as acceptance of the software agreement that went with it. > Ted -- Jeremy McDermond Xenotropic Systems [EMAIL PROTECTED] _______________________________________________ cisco-nsp mailing list [email protected] https://puck.nether.net/mailman/listinfo/cisco-nsp archive at http://puck.nether.net/pipermail/cisco-nsp/
