March 20, 2014 Shrinkwrap licenses. ProCD v. Zeidenbergdatabase of telephone directories. Trying to protect databases through contract law.

Not just an ordinary directory. SIC codes- they could conceivably have made an originality argumentbut all of those are facts. Open legal question. Interface to database copyrightable. You can protect the database but not the factual data. This was about price discrimination. Valuable to commercial enterprises, less valuable to individuals/typical consumers. This does not work where there is arbitrage. You have to keep the product in channels via contract laws. Consumer package defines uses you can make (not for commercial use/distribution). Commercial use pays more cash. They could have used DRM or a single price. DRM might be the more compelling argument here though perhaps difficult to encode. Sell prices for different components of the database/reduced functionality. Charge for updates. Zeidenberg starts company purchases CDs, copies the facts, sets them up to be accessible on line for a fee undercutting ProCD price. ProCD sues on contract and copyright grounds. He violated terms of k. Two issues- k issue. Can parties agree to hidden or later disclosed terms? Ziedenberg argues he formed the k at point of sale and only binding terms were visible at time of sale. Easterbook says you can return when you see the new terms. He says these are fine. As long as you can refund. He stretches UCC 2-207. Pro-CD has been widely criticized for the utilitarian approach and stretch of the UCC, but it has withstood the test of time. This has allowed software and others to use these terms. Buying the DVD is buying a license to play the movie on your DVD, computer, etc. They use the license to avoid the doctrine of first sale, no fair use, etc.

Clickwrap licenses. Specht v. Netscape Why do they want k law on this software? They wanted arbitration rather than ct. The software program had an ECPA claim. This was for arbitration which is K law and not copyright. Downloading not assent if not clear that clicking = assent to terms. Above the terms, I agree. Get a manifestation of assent to the licensing terms. must check box of terms. Force user action to manifest assent. The agreement was below the download button. Now the reasonable consumer thinks there is an agreement. What are the pros and cons. Efficiency and convenience. Cons- complicates software because people stuck using installers for manifestation of assent, makes interfaces messy, can be frustrating children and old people. ButToS;DR Are these still contracts? Meh. Copyright Preemption issue. ProCD- can a K expand rights beyond the scope of copyright law/ conflict with it? Federal preemption doctrine, federal law shall be the supreme law of the land. K law= state law. If conflict, copyright law should win.

Express and implied preemption. Copyright preemption Are rights :equivalent to any fo the esclusive rights? Easterbrook says no. ProCD says (review this) Easterbrook says not equivalent- k law is btwn two parties, copyright a right against the world. Therefore the rights are not the same. Copyright universal but we can k to do things differently. Even though ks are btwn two parties, adhesion ks enable you to run everything. NYT assent to K for no further distribution of facts. Would work under Pro-CD. Are ks merely private rights? No bc cts enforce them. The state is still the one deciding whether or not to enforce ks and we already have policy discretion in this. For better or worse, Pro-CD is good law. Licenses are limited rights of use. Why bother with copyright when everything is digital? Copyright being replaced by Ks and DRM. Are we killing fair use?