🚀 go-pugleaf

On 11 Oct 1998 23:54:08 -0700, tzs@halcyon.com (Tim Smith) wrote:

>M O'Neill <darrow@oneillaw.com> wrote:
>>On 11 Oct 1998 16:49:05 -0700, tzs@halcyon.com (Tim Smith) wrote:
>>>This depends on where you live.  If you are in the 7th Circuit in the US, for
>>>example, shrink wrap licenses are enforceable.
>...
>>Do you have a citation to a case or anything?
>
>ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996).
>
>--Tim Smith

OK, I read that decision.  It arose in Wisconsin.  The decision
doesn't state the basis of jurisdiction, which is kind of unusual, but
it would appear to be what's called diveristy jurisdiction, which
involves cases between citizens of different states.  In such a case,
the Court would apply (not make) state law, and the case appears to
have been decided under Wisconsin law.

In that case, Zeidenberg was trying to sell the information contained
in ProCD's software, namely phone number listings and related
information.

The defendant argued solely that the license agreement was not
enforceable because it was contained inside the box and therefore he
didn't agree to it at the time of the sale.  He did not argue that it
was otherwise unenforceable.

A couple of points about the case:

1.	The case was decided on the issues as framed by the attorneys
in that case.  Zeidenberg did not argue that the license agreement was
overreaching or unfair, which would be the primary argument that a
single consumer would raise against enforcement of the license.
Zeidenberg could not raise that argument because of what he was doing
with the CDs.

2.	The case does not create binding law on the issue, since it is
a federal court interpreting state law.  The state courts have the
final say on what state law is, so long as it does not conflict with
federal law on the same subject, and ordinarily in a contract case
such as this it would not.

3.	A federal court would have jurisdiction over a case such as
this only when the amount in issue exceeds $75,000.  As a practical
matter, this isn't going to happen unless you are trying to use
someone else's software in business, as Zeidenberg was trying to do.

This case doesn't change my opinion that the shrink wrap license
agreements can be ignored by single users.  I'll be happy to consider
any other cases that you know of that reach a different result.