On Wed, 16 Oct 1996, Tuttle, Marcia wrote:
> Friends, these things are about to drive me crazy!
>
> I'm talking about the terms and conditions, usually in small print and
> often hidden, that come with electronic products that are probably meant
> for individual, not library, purchase.
>
> They usually begin "By loading these data, you agree ..." (you name it, so
> long as it's unacceptable or impossible in a library environment). There
> is no room for negotiation, no place to sign, sometimes no address or
> phone number for discussion of the terms.
>
> The library world seems to be divided about our treatment of these
> licenses. Some believe they are not enforceable and can be ignored; others
> are convinced that by ignoring them and simply abiding by the US Copyright
> Law we are opening ourselves up to possible legal action by the publisher.

I don't know much about this corner of contract law, but I do know that
shrinkwrap licenses are an attempt by publishers to make an end run around
copyright law, especially the diea of "first sale".

I spent some time reading the newsgroup misc.int-property (for the
discussion of copyright, trademark, and patent law), and the gist of what
*I* got from the (often heated) discussions there is that, (*IF* the end
result is legal, which is a point of some contention), the license is only
binding if it's possible to know about the license before you break/agree
to it--i.e. a card *inside* a box that says "by opening this box you
agree..." in unenforceable and is safe to ignore, since there is no way
you can refuse.  However, if it is truly on the shrinkwrap, or is a card
on the inside that mentions "by loading this you agree...", then it's
techinically enforceable (provided, like I said, that the concept is legal
to begin with).  The way to signify that you don't agree is to return the
product to the place you bought it as if it were defective or whatnot--you
obviously can't use it as is--and apply pressure in that manner on the
publishers who insist on pulling such shenanigans (then tell the irate
patrons that the library is unable to purchase the product due to the
publisher's "unfair" licensing practices).  However, this is just my
interpretation of what I read in that newsgroup.  IANAL and all that jazz.

Personally, local practice for circulating CD-ROMs is to ignore the
licenses, consequences be damned. :)  I don't know what the computer lab
does for material loaded on our LAN.

Joel Hahn
Niles PLD
Feudalism: Serf & Turf
<jhahn@CCS.NSLSILUS.ORG>