Open with caution

I SUPPOSE IT was inevitable. With sneakwrap terms showing up in everything from charity Web sites to pornographic spam, it was just a matter of time. Books with shrinkwrap license agreements have arrived.

The first report of this phenomena to The Gripe Line came a few months ago when a reader who is a physician received an unsolicited tome in the mail entitled Geriatric Pharmaceutical Care Guidelines, 2002 Edition, from Omnicare. "This book arrived wrapped in plastic with a shrinkwrap license on the front," the doctor wrote. "It plainly says that by breaking the seal you agree to the terms of the license and if you don't agree you should return the book unopened. Is this what software licensing has led us to? This license says the book remains the property of Omnicare. Will they come up with a way to remotely disable the book if someone else reads it?"

The doctor obligingly faxed me a copy of the license, and I saw that it was indeed a sneakwrap agreement worthy of Microsoft or VeriSign. "In the event that you do not agree with any terms of this agreement you should promptly return the material unopened to your local Omnicare pharmacy," it read in bold letters near the top.

The license was nontransferable and would "terminate immediately if the Licensee or his or her employer ceased to be an Omnicare customer." And although the Omnicare "Guidelines are intended only to provide guidance as to which pharmaceutical products Omnicare believes to be most effective" the "licensee" was nonetheless prohibited from disclosing any of the information in the book to third parties.

It struck me that this license put the doctor in an awkward position. As far as he knew, neither he nor any of the other doctors in his office (most of whom had received their own copies the book) were Omnicare customers, and he did not know where his "local Omnicare pharmacy" might be. Even if he wanted to keep the book, as a non-Omnicare customer the license prohibited him from doing so. And since Omnicare claimed to retain ownership of his copy, he couldn't destroy it either. If the license agreement was to be taken seriously, he either had to go to the trouble of trying to ship the book back or he had to become an Omnicare customer somehow.

The doctor wondered if Omnicare was trying to make him feel obligated to them. "Sometimes my less-than-favorite charities send me greeting cards or stickers or a writing instrument in the mail," the doctor noted. "They are hoping to provoke enough sense of obligation in me to extract a contribution, but legally I am not required to acknowledge, or pay for, or return, or refrain from using what they send. So what is my obligation when sent an unsolicited book? Am I legally required not to use it or to return it if I don't agree with the sender's intended use?"

So just what was Omnicare's purpose in putting a classic shrinkwrap agreement (it was even printed in small, poorly-contrasted type) on a book that was clearly intended to promote use of the company's pharmaceutical products? I hoped Omnicare officials might have a simple explanation, but if they did, they decided not to share it with me. After two months of going back and forth with their public relations staff, I did not even get an answer on the basic question of what a noncustomer was supposed to do with the book.