The ‘Duh’ Of Shrinkwrap Licenses

Kids have figured out the problem with shrinkwrap licenses. So why can’t judges?

We recently purchased a couple of computer games from EBay for our kids (who are 10, 8, and 6). The kids selected the CD games based on a combination of price and geography. They didn’t choose the lowest priced product because the seller was located three time zones away. Instead, they purchased a fairly priced product from a seller located only a few hundred miles away. And they tracked the progress of the package, anxiously awaiting its arrival.

When the new game arrived, they asked me to install the game. But I asked, “Can you read?” “Yes,” they said. “Can you follow instructions?” I asked. “Yes,” they said again. “Then you can install the software.” “Yippee!” they cheered.

So my 10-year-old took the lead and started installing the software. When he got to the license agreement, he quipped, “Let’s see, it says I have to click ‘accept’ to continue. Well DUH! It’s not like I have any CHOICE! They’ve already got my money! OK, I’m clicking ‘accept.'”

So there you have it. No choice, they already have my money, I’m clicking accept. Yet judges who touch this issue repeated validate shrikwrap licenses because to invalidate them would overturn generally accepted legal principles. Well, there was a time in this county when slavery was accepted and women didn’t have the right to vote. Until some judges had the courage to challenge the accepted legal principles. Duh.

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