Clicking Away Your Speech Rights: The Enforceability of Gagwrap Clauses

Document Type

Article

Publication Date

12-2007

Journal Title

Communication Law and Policy

ISSN

1081-1680

DOI

10.1080/10811680709336512

Abstract

Software companies would like to be able to control what their customers and reviewers can say about them and their software. To this end, many include in their license agreements “DeWitt” or “gagwrap” clauses which purport to prevent written reviews or disclosure of benchmark test results involving the software without the manufacturer's consent. While the courts have recognized the enforceability of software licenses to protect manufacturers, they have so far not addressed the enforceability of gagwrap clauses. This article examines gagwrap clauses and examines them in a public policy framework arising from contract and First Amendment jurisprudence. It proposes a test for the enforceability of the clauses that leaves in place many agreements not to speak but renders gagwrap clauses suspect on public policy grounds.

First Page

37

Last Page

89

Num Pages

53

Volume Number

12

Issue Number

1

Publisher

Taylor & Francis

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