Standard forms, included in the packaging or installation materials for software or licenses for information other party has no real bargaining powerThe non drafting party often would not understand the language even if the contract was read terms are defined by the drafting partyReflects interests of the party with superior bargaining power, likely to be the drafting party Presented on a "take-it or leave-it" basis with no negotiation
1990 Congressional amendment to First Sale Doctrine 1991 Step-Save Data Systems, Inc. v. Wyse Technology 1996 ProCD v. Zeidenberg 1998 Hotmail Corp. v. Van$ Money Pie Inc. Groff v. Am. Online, Inc 2002 Comb v. PayPal, Inc., 2003 Bowers v. Baystate Techs., Inc,.
1991Step-Save Data Systems, Inc. V. Wyse Technology Unfair to bind buyer because seller sent last form UCC 2-207 Approach should COntrol: Parties only Intended to Incorp. Terms which both Parties agreed
1991ProCD v. Zeidenberg “Agreement” specifically limited the use of the application program and listings Zeidenberg argued that this was a “non-Agreement” License appeared in 3 forms: Packaging; Text in the manuaL; Text displayed each time software loaded
1991ProCD v. Zeidenberg (Continued) UCC 2-204 controls: “Any manner sufficient to Show Agreement.” Accepted terms by not returning disks “Shrinkwrap licenses enforceable unless terms are objectionable on grounds of general contract law
1991ProCD v. Zeidenberg (Continued) Case NOT decided on clickwrap grounds, but rather on Shrinkwrap UCC 2-204 invocation set groundwork for clickwrap
1998Hotmail v van$ money pie Pornography and Spam messaging against user agreement Grant of Injunction without discussion of assent or enforceability Passively acknowledging the legitimacy of clickwrap
1998Groff v America online inc. Forum selection clause Grant of aol motion to dismiss for improper venue User had ability to decline the terms acknowledging the legitimacy of Accept or Decline
2002Comb v. paypal inc. Procedural unconscionability Even where Acceptace is procedurally lacking, still enforceable if the substantive terms are Reasonable
2003Bowers v. bayside techs inc. Copyright & Agreement contract claims are preempted if the work is within the subject matter of copyright courts typically find that contractural rights are not equivalent to copyrights
1984 Sony Corp v. Universal City Studios, Inc. 2003 Chamberlain v Skylink Technologies 2004 LexMark Cases 2005 Blizzard I 2008 Blizzard II RealNetworks, Inc. v. DVD 2009 Copy Control Ass’N Inc.
1984Sony Corp v. Universal City Studios, Inc. BetaMax Case. EStablished fair use doctrine as a check to the "monopoly privileges" provided by Congress Created Market for Retail Movie Releases
2003Chamberlain v. Skylink Technologies Garage Door Openers Warranty and Website Did Not Explicitly Bar the Plaintiff’s Use Sellers Can dictate terms for consumer use
2004Lexmark Cases Printer Cartridges lexmark cartridges encrypt authentication secquenceProphecized: Manufacturers Would lockdown devices through a combination of copyright and contract
2005Blizzard IAlternate servers for playing Warcraft Defendant contractually yielded right to reverse engineer Holding based on bowers
2008Blizzard II World of Warcraft “bot” Analysis Similar to blizzard I in analysis and holding
2009 Realnetworks, Inc. v. Dvd copy control assn. Inc DVD Copying SoftwareHeld that Realnetworks could not prove that its product would not be used for illegitimate purposes High threshold requirement for creators of software
Eulas include restrictive termson purchasers that were not assented to by that purchaser
Allowing content creators and manufacturers to step into the role of legislators
These Contracts of Adhesion should be treated as poisonous Trees
For the Protection of Consumers EULA Terms should be Held inherently unconscionable until the drafting party demonstrates their Reasonableness
PHOTO CREDIT Title Slide Neil Kandalgaonkar http://www.ﬂickr.com/photos/brevity/2485616531
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