eulas: fruit of the poisonous tree
Post on 19-Oct-2014
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The EULA: A Poisonous Tree
HI!My Name is
Peter “Deuce” Bradshaw
I’m writing a paper
about EULAs
I want to share
my work and
research.
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@BradshawLaw
What is a
EULA?
End
User
License
Agreement
Contract between
licensor and purchaser,
establishing purchaser’s
right to use the software.
Usually unseen until After
purchase and Assented
to by clicking
“I Accept”
Objective Theory of
Contracts
existence
of a contractis determined by the legal significance
of the external acts of a party,
rather than by the actual intent.
In other words
clicking
“I Accept”
Contracts of
Adhesion
Standard forms, included in the packaging or installation
materials for software or licenses for information
terms are defined by the drafting party
other party has no real bargaining power
The non drafting party often would not understand the
language even if the contract was read
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
BLanket Assent
Theory
to any NON-unreasonable terms
that do not alter these
reasonable expectations as to
the terms of the transaction.
to any specific terms.
to the transaction
No
ass
ent
bRoa
d ass
ent
Prominent
EulaCases
Congressional amendment to First Sale Doctrine
ProCD v. Zeidenberg
Hotmail Corp. v. Van$ Money Pie Inc.
Groff v. Am. Online, Inc
Comb v. PayPal, Inc.,
Step-Save Data Systems, Inc. v. Wyse Technology
Bowers v. Baystate Techs., Inc,.
1990
1991
1996
1998
2002
2003
1991
Step-Save Data Systems, Inc.
UCC 2-207 Approach should COntrol:
Parties only Intended
to Incorp. Terms
which both Parties agreed
Unfair to bind buyer because seller
sent last form
V. Wyse Technology
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
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
1991
ProCD v. Zeidenberg (Continued)
Case NOT decided on clickwrap grounds,
but rather on Shrinkwrap
UCC 2-204 invocation set groundwork
for clickwrap
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
1998
Groff v America online inc.
Forum selection clause
Grant of aol motion to dismiss for
improper venue
acknowledging the legitimacy of
Accept or Decline
User had ability to decline the terms
2002
Comb v. paypal inc.
Procedural unconscionability
Even where Acceptace
is procedurally lacking,
still enforceable if the
substantive terms are Reasonable
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
Collision Of
CopyRightEULA
Cases
1984
2009
2005
2008
2004
2003
Sony Corp v. Universal City Studios, Inc.
Chamberlain v Skylink Technologies
LexMark Cases
Blizzard I
Blizzard II
RealNetworks, Inc. v. DVD
Copy Control Ass’N Inc.
1984
Sony Corp v. Universal City Studios, Inc.
EStablished fair use doctrine as
a check to the
"monopoly privileges"
provided by Congress
BetaMax Case.
Created Market for Retail
Movie Releases
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
2004
Lexmark Cases
Printer Cartridges
lexmark cartridges encrypt
authentication secquence
Prophecized: Manufacturers Would lock
down devices through a combination of
copyright and contract
2005
Blizzard I
Alternate servers for playing Warcraft
Defendant contractually
yielded right to reverse engineer
Holding based on bowers
2008
Blizzard II
World of Warcraft “bot”
Analysis Similar to blizzard I in
analysis and holding
2009
Realnetworks, Inc.
DVD Copying Software
High threshold requirement for
creators of software
v. Dvd copy control assn. Inc
Held that Realnetworks could not prove
that its product would not be used for
illegitimate purposes
Eulas includerestrictive terms
on 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
PHOT
O CR
EDIT Title Slide
Neil Kandalgaonkarhttp://www.flickr.com/photos/brevity/2485616531