David said:
That is true, however, the ruling makes logical sense. It would be
unlikely to expect a different ruling in another circuit, but I admit
it's possible.
See Klocek v. Gateway:
The Court is not persuaded that Kansas or Missouri courts would follow
the Seventh Circuit reasoning in Hill and ProCD. In each case the
Seventh Circuit concluded without support that UCC § 2-207 was
irrelevant because the cases involved only one written form. See ProCD,
86 F.3d at 1452 (citing no authority); Hill, 105 F.3d at 1150 (citing
ProCD). This conclusion is not supported by the statute or by Kansas or
Missouri law. Disputes under § 2-207 often arise in the context of a
"battle of forms," see, e.g., Daitom, Inc. v. Pennwalt Corp., 741 F.2d
1569, 1574 (10th Cir. 1984), but nothing in its language precludes
application in a case which involves only one form. The statute
provides:
Additional terms in acceptance or confirmation.
(1) A definite and seasonable expression of acceptance or a written
confirmation which is sent within a reasonable time operates as an
acceptance even though it states terms additional to or different from
those offered or agreed upon, unless acceptance is expressly made
conditional on assent to the additional or different terms.
(2) The additional terms are to be construed as proposals for addition
to the contract [if the contract is not between merchants]....K.S.A. §
84-2-207; V.A.M.S. § 400.2-207. By its terms, § 2-207 applies to an
acceptance or written confirmation. It states nothing which requires
another form before the provision becomes effective. In fact, the
official comment to the section specifically provides that § § 2-207(1)
and (2) apply "where an agreement has been reached orally ... and is
followed by one or both of the parties sending formal memoranda
embodying the terms so far agreed and adding terms not discussed."
Official Comment 1 of UCC § 2-207. Kansas and Missouri courts have
followed this analysis. See Southwest Engineering Co. v. Martin Tractor
Co., 205 Kan. 684, 695, 473 P.2d 18, 26 (1970) (stating in dicta that §
2-207 applies where open offer is accepted by expression of acceptance
in writing or where oral agreement is later confirmed in writing);
Central Bag Co. v. W. Scott and Co., 647 S.W.2d 828, 830 (Mo. App. 1983)
(§ § 2-207(1) and (2) govern cases where one or both parties send
written confirmation after oral contract). Thus, the Court concludes
that Kansas and Missouri courts would apply § 2-207 to the facts in this
case. Accord Avedon, 126 F.3d at 1283 (parties agree that § 2-207
controls whether arbitration clause in sales confirmation is part of
contract).
In addition, the Seventh Circuit provided no explanation for its
conclusion that "the vendor is the master of the offer." See ProCD, 86
F.3d at 1452 (citing nothing in support of proposition); Hill, 105 F.3d
at 1149 (citing ProCD). In typical consumer transactions, the purchaser
is the offeror, and the vendor is the offeree. See Brown Mach., Div. of
John Brown, Inc. v. Hercules, Inc., 770 S.W.2d 416, 419 (Mo. App. 1989)
(as general rule orders are considered offers to purchase); Rich Prods.
Corp. v. Kemutec Inc., 66 F. Supp. 2d 937, 956 (E.D. Wis. 1999)
(generally price quotation is invitation to make offer and purchase
order is offer). While it is possible for the vendor to be the offeror,
see Brown Machine, 770 S.W.2d at 419 (price quote can amount to offer if
it reasonably appears from quote that assent to quote is all that is
needed to ripen offer into contract), Gateway provides no factual
evidence which would support such a finding in this case. The Court
therefore assumes for purposes of the motion to dismiss that plaintiff
offered to purchase the computer (either in person or through catalog
order) and that Gateway accepted plaintiff's offer (either by completing
the sales transaction in person or by agreeing to ship and/or shipping
the computer to plaintiff). (6) Accord Arizona Retail, 831 F. Supp. at
765 (vendor entered into contract by agreeing to ship goods, or at
latest, by shipping goods). -
http://www.law.unlv.edu/faculty/bam/k2001/klocek.html
There is an example of a court rejecting the reasoning of the ProCD v.
Zeidenberg decision. So what you think unlikely has already happened.
That's the whole point, the issue of shrink wrap agreements and
EULAs has nothing to do with copyright law at all. Did you read the
ruling?
Yes. And boy are you spinning. The court never said that shrink-wrap
licenses had nothing to do with copyright law. You are blatantly lying.
This case didn't involve copyright law at all, as the database material
in question isn't copyrightable!
Again:
"Whether there are legal differences between "contracts" and "licenses"
(which may matter under the copyright doctrine of first sale) is a
subject for another day." -
http://www.law.emory.edu/7circuit/june96/96-1139.html
Had this case actually involved copyright material the judge is
suggesting that there may be a different outcome.
It was made perfectly clear that the copyright status of the
work was relevent only to the extent that the provider would have had
additional rights under copyright that are totally independent from
those under a EULA or shrink wrap agreement.
Really? What is made perfectly clear is that the material in question
was not copyrightable material at all.
"Whether there are legal differences between "contracts" and "licenses"
(which may matter under the copyright doctrine of first sale) is a
subject for another day."
What part of this don't you understand? The judge was clearly
separating out copyright from his decision, since it had absolutely no
bearing on the ProCD case!
And this makes logical sense.
Only if you are a spinmeister for the corporate copyright elite!
The question was whether these agreements can give you rights not
found under copyright, right?
No. Where does it say that? All it says that it is assumed that the
database material is not copyrightable.
Here's the perfect example case because
there were *NO* rights possible under copyright law.
And no limitations under copyright law either.
When it comes to shrink-wrap licenses and actual copyright material,
this decision isn't really precedent at all. This is a precedent for
shrink-wrap licenses in the 7th Circuit that doesn't involve copyrighted
material.
Right, but if copyright gives you right X but not right Y, then a
contract that gives you right Y does not violate copyright. It simply
gives you an additional right. There's nothing in copyright that says
you can't acquire other rights and other ways, and it would lead to
lots of totally absurd results to assume that this is so. Perhaps the
only exception would be if state or local laws tried to give you
aditional rights. And even then, courts rarely hold that copyrights
limit them.
But if the shrink-wrap license tries to take X away, then it is
unconscionable.
By the way, X="fair use"
I think it's utterly absurd to argue that a contract can grant an
owner privileges over a non-copyrightable work and for a
copyrightable work, where he should have *additional* rights, he
doesn't get the contract rights. That's crazy, it defies reason, and
I defy you to find any cite from any reputable source that suggests
that this makes any kind of sense.
See the quote below.
You show no evidence of understanding it.
Really? ROFL!
If you say so, then it must be spin!
It's absurd to argue
that work that cannot possibly be protected by copyright would get
greater protections that one that is protected by copyright.
You seem to forget that not only does Copyright Law enumerates the
rights of Copyright Owners, a great deal of Copyright Law is about
limiting the rights of Copyright Owners. Congress placed those
limitations on Copyright Owners for good reasons, and what would really
be absurd is to believe that a court would rule in favor of a Copyright
Owner rewriting those limitations in a post-sale shrink-wrap license at
the whim of the Copyright Owner, and thus placing Copyright Owners above
the limitations of Copyright Law, above U.S. Congress, and above the
Constitution of the United States, which gave Congress the right to
limit the rights of Copyright Owners in the first place.
Copyright law only pre-mepts state and local laws, no US court has
ever held that it pre-empts contracts.
LOL! Not yet, as no copyright owner has sued an individual for breaking
a EULA where Copyright Law contradicts the contract. The corporate
copyright elite are too scared try. MS has had over 13 years to sue an
individual over it One Computer EULA term, but hasn't even though they
know people have, since there is a very good chance that they would
lose, and they rather have no precedent than risk losing.
--
Peace!
Kurt
Self-anointed Moderator
microscum.pubic.windowsexp.gonorrhea
http://microscum.com/mscommunity
"Trustworthy Computing" is only another example of an Oxymoron!
"Produkt-Aktivierung macht frei"
-