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Article
Clicking Away Your Speech Rights: The Enforceability of Gagwrap Clauses
Communication Law and Policy
  • Genelle I. Belmas
  • Brian N. Larson, Texas A&M University School of Law
Document Type
Article
Publication Date
12-2007
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.

Num Pages
53
Publisher
Taylor & Francis
Disciplines
Citation Information
Genelle I. Belmas and Brian N. Larson. "Clicking Away Your Speech Rights: The Enforceability of Gagwrap Clauses" Communication Law and Policy Vol. 12 Iss. 1 (2007) p. 37 - 89
Available at: http://works.bepress.com/brian-larson/3/