The argument is that whoever provided you the installer is ‘morally speaking’ providing you the software on the condition that you accept the agreement, and the fact that you physically receive the software before completing the transaction is just an implementation detail.
That case involved a literal shrinkwrapped product – a piece of software sold on CD-ROM in the 90s – where the contract was stored on the CD-ROM and thus could not even be reviewed without breaking the shrinkwrap, which in turn could only happen after buying the package from a retailer. If the purchaser read the license and decided not to accept, they would have spent their money on nothing.
But the contract instructed purchasers to return the package if they didn’t agree to it, and purchasers apparently had the opportunity to do so and get their money back, and the court decided that was good enough. If a purchaser chose not to return the package and instead continued to use the software after seeing the license, they could be considered to have accepted the contract.
That said, the purchaser in that case did check an “I agree” box in the installer rather than try to bypass it – but at least based on the Wikipedia article, it sounds like that fact wasn’t as crucial to the outcome as one might expect.
I've seen that case before actually. But as I understand it, it was important that there was an indication of the existence of the license on the packaging, which people could view prior to purchase - it means you implicitly voluntarily agreed to that contract on the box before you purchased the copy.
That is not quite the same thing as claiming you don't have a right to use something without a license, hence my question. If someone gives you a copy of the software without any indication that it comes with any sort of license at all, and you patched it to bypass the agreement that popped up after you ran it, what did you violate exactly? You got the software without agreeing to anything, so what's the legal basis for the idea that you can't patch it and use it without agreeing to the license?
> If someone gives you a copy of the software without any indication that it comes with any sort of license at all, and you patched it to bypass the agreement that popped up after you ran it, what did you violate exactly?
Isn't this the same thing as unknowingly getting a stolen item from someone? You don't get to keep it just because someone gave it to you.
no. that case is about whether notice on shrinkwrap or via a license-acceptance screen can create an enforceable agreement. its not even a copyright issue.
morality has nothing to do with contract (or copyright) law in a common law country.
no one should think that getting cute by "bypassing" an acceptance screen will make a difference to the outcome, let alone be crucial. what matters is whether the user has sufficient notice that using/proceeding/whatever is agreement, and that they had a chance to know what they were agreeing to. theres no special magic in an "agree" box, except insofar as asking the user to click it contributes to notice that the user is making an agreement.
This is largely based on ProCD v. Zeidenberg:
https://en.m.wikipedia.org/wiki/ProCD,_Inc._v._Zeidenberg
That case involved a literal shrinkwrapped product – a piece of software sold on CD-ROM in the 90s – where the contract was stored on the CD-ROM and thus could not even be reviewed without breaking the shrinkwrap, which in turn could only happen after buying the package from a retailer. If the purchaser read the license and decided not to accept, they would have spent their money on nothing.
But the contract instructed purchasers to return the package if they didn’t agree to it, and purchasers apparently had the opportunity to do so and get their money back, and the court decided that was good enough. If a purchaser chose not to return the package and instead continued to use the software after seeing the license, they could be considered to have accepted the contract.
That said, the purchaser in that case did check an “I agree” box in the installer rather than try to bypass it – but at least based on the Wikipedia article, it sounds like that fact wasn’t as crucial to the outcome as one might expect.