click-wrap is legally supportable?

[Lawrence E. Rosen]

> From: Larry M. Augustin [mailto:lma at lmaugustin.com] 
> Question:  If you have a monopoly position (e.g. Microsoft), 
> and force a click-wrap license to get product updates/support 
> (e.g. MSFTs product update facility), is there a legal 
> challenge to the license terms?
> 
> What's the end-user supposed to do - not install a critical 
> security fix because they didn't like the license?  MSFTs 
> monopoly position allows them to impose a license on the 
> market.  Is that a basis for challenging the terms of the license?

Possibly yes.  

First, if the license is indeed an unlawful tying of two products (as
defined under antitrust laws), litigation can ensue.  I suppose that's
why you noted Microsoft's monopoly position.  Microsoft has less freedom
of action in this respect than might smaller companies, albeit deeper
pockets to litigate.

Software licenses are sometimes called "contracts of adhesion" because
of the very unequal bargaining rights between the parties and the
take-it-or-leave-it nature of the license.  The courts are known to
refuse to enforce such provisions in adhesive contracts, particularly
when -- as in your example -- the alternative for the weaker party is a
security risk or other hazard.

One of the reasons why an improved UCITA will be valuable someday to our
community is that it will allow the state to declare what license terms
are unenforceable as against public policy.  Not the current version of
UCITA, of course!

/Larry

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