click-wrap is legally supportable?

Rod Dixon, J.D., LL.M. rod at
Tue Oct 29 04:51:25 UTC 2002

> 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?
You can certainly challenge the terms of a click-wrap license, but the facts
in your question do not seem sufficient to raise a relevant challenge. You
would need to supply additional facts to your hypothetical, including
whether your idea is that there is uneven bargaining power, that the license
is a form contract, that the terms were really not negotiated, that the
terms were drafted by the product developer, that the terms are particularly
onerous on the party not drafting the license, and so on. Even so, I am
unsure where this leads unless the harm is fleshed out more.

> 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?
> Larry

What license term would you imagine challenging? Why? Simply not "liking" a
license (or a party to the license) does not spell out a sufficient basis to
challenge  a license you are bound by when the clickwrap offers amble
opportunity NOT to consent....that's the point under discussion. If there
were no clickwrap or if you lived in Russ' world, you might have a better
argument challenging the license (browser-wrap) on the basis that there is
no manifestation of mutual assent.


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