Before dabbling in the coding arts, I was a Code Head (not the technology kind, the Uniform Commercial Code kind). It’s really interesting to me how law applies to new technology. In this article, I am going to discuss the effectiveness of using software license agreements in resolving virtual property right disputes that arise in massively multiplayer online role-playing games (MMORPG).
Enforceability of Shrinkwrap and Clickwrap License Agreements:
Shrinkwrap licenses are terms and conditions found inside software boxes. Consumers can only read and accept the terms after opening the product. Clickwrap, on the other had, is usually found on the internet where consumers click “agree” before they can download a particular software. If the user refuses to click “agree,” he can no longer use or purchase the product or service.
Courts considered shrinkwrap and clickwrap licenses accompanying the sale of products as ordinary contracts subject to Uniform Commercial Code. ProCD, Inc. v. Zeidenberg, 86 F. 3d 1447. Given their unilateral nature, courts have found these licenses to be unenforceable contracts of adhesion. Step-Saver Data System v. Wyse Technology, 939 F. 2d 91. In Step-Saver Data Systems v. Wyse Technology, the court relied on UCC § 2-207 and § 2-209 in refusing to uphold the disclaimer of all express and implied warranties contained in the box-top license. The court reasoned that the box-top license was not the final and complete expression of the parties’ agreement because Step-Saver ordered the Advanced Multilink computer program over the phone. The telephone order acted as the final and complete expression of the parties’ agreement; therefore, conditions added subsequent the telephone order in the box-top license are material alterations of the contract.Step-Saver Data System v. Wyse Technology, 939 F. 2d 91. Because UCC § 2-209 requires that both parties must intend to adopt the additional terms, the shrinkwrap license was unenforceable.