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21 Cardozo L. Rev. 319 (1999-2000)
Honey, I Shrink-Wrapped the Consumer: The Shrink-Wrap Agreement as an Adhesion Contract

handle is hein.journals/cdozo21 and id is 333 raw text is: HONEY, I SHRINK-WRAPPED THE CONSUMER: THE SHRINK-WRAP AGREEMENT AS AN ADHESION CONTRACT INTRODUcTION An ordinary consumer walks into a store that sells computer software hoping to find a particular piece of software. Once satisfied that she has found what she is looking for, she takes the software to the register to purchase it. After paying for the purchase, she reasonably assumes that no further obligations exist. Later, when she gets home, she can hardly wait to use the new program. Like a child at a birthday party, she rips through the cellophane that seals the package. She opens the box, finds the disk containing the program, and immediately loads it onto her computer. She does this so fast she doesn't even notice the User Guide packaged inside the box with the software. Then, in her eagerness and excitement, she quickly clicks through' several screens full of legal jargon. It is not until sometime later, after using the software, that she notices the User Guide. When she finally gets around to reading it, she finds out that she was asked to carefully read an enclosed license before using the software or accessing the software on the disk. Furthermore, by using the disk, she now learns that she supposedly agreed to be bound by the terms of the license for the software she thought she owned free and clear upon purchasing it back in the store. The above account is illustrative of the typical consumer experience.2 The majority of off-the-shelf software is acquired by means of a self-executing shrink-wrap agreement.' This type of 1 Clicking through takes place by continually clicking with a mouse on buttons with the term OK or I accept or I agree on them, although there are numerous variations of this scheme. 2 This account of the typical consumer's experience was adapted from the version appearing in Christopher L. Pitet, The Problem With Money Now, Terms Later: ProCD, Inc. v. Zeidenberg and the Enforceability of Shrinkwrap Software Licenses, 31 LOY. L.A. L. REV. 325,325-26 (1997). 3 See KENT STUCKEY, INTERNET AND ONLINE LAW 45 (1998); Martin H. Samson, Click-Wrap Agreement Held Enforceable, N.Y. L.J., June 30, 1998, at 1, 1 (Click-wrap agreements derive their name from shrink-wrap agreements, by which most software is sold today.). 319

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