12. Standard forms, included in the packaging or installation
materials for software or licenses for information
other party has no real bargaining power
The non drafting party often would not understand the
language even if the contract was read
terms are defined by the drafting party
Reflects 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
14. No assent
to any specific terms.
bRoad assent
to the transaction
to any NON-unreasonable terms
that do not alter these
reasonable expectations as to
the terms of the transaction.
16. 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,.
17. 1991
Step-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
18. 1991
ProCD 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
19. 1991
ProCD 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
20. 1991
ProCD v. Zeidenberg (Continued)
Case NOT decided on clickwrap grounds,
but rather on Shrinkwrap
UCC 2-204 invocation set groundwork
for clickwrap
21. 1998
Hotmail 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
22. 1998
Groff 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
23. 2002
Comb v. paypal inc.
Procedural unconscionability
Even where Acceptace
is procedurally lacking,
still enforceable if the
substantive terms are Reasonable
24. 2003
Bowers 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
26. 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.
27. 1984
Sony 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
28. 2003
Chamberlain v. Skylink Technologies
Garage Door Openers
Warranty and Website Did Not
Explicitly Bar the Plaintiff’s Use
Sellers Can dictate terms for
consumer use
29. 2004
Lexmark Cases
Printer Cartridges
lexmark cartridges encrypt
authentication secquence
Prophecized: Manufacturers Would lock
down devices through a combination of
copyright and contract
30. 2005
Blizzard I
Alternate servers for playing Warcraft
Defendant contractually
yielded right to reverse engineer
Holding based on bowers
31. 2008
Blizzard II
World of Warcraft “bot”
Analysis Similar to blizzard I in
analysis and holding
32. 2009
Realnetworks, Inc.
v. Dvd copy control assn. Inc
DVD Copying Software
Held that Realnetworks could not prove
that its product would not be used for
illegitimate purposes
High threshold requirement for
creators of software
33. Eulas include
restrictive terms
on purchasers that were
not assented to
by that purchaser
