Re: Consideration in a Shrinkwrap Contract

From: Bryan Taylor <bryan_w_taylor[_at_]yahoo.com>
Date: Tue, 19 Sep 2000 20:50:07 -0700 (PDT)

• Kevin Grierson <kgrierson[_at_]wilsav.com> wrote:
  > I know that UCITA specifically allows licenses that restrict further
  > transmission of the software, and even licenses that expire after a
  > certain period of time. I am concerned, however, that such
  > provisions do an end-around on the copyright first-sale doctrine, and
  > render it essentially meaningless.
  

The "end-around" argument has been addressed by the 5th and 7th Circuits with different results (Vault v. Quaid and ProCD). The ProCD case claims that a contract is an "extra element" that avoids Federal preemption. But a contract of sale is ALWAYS part of a copyright's first sale, so I fail to see what is so "extra" about it in an arm's length consumer transaction.

Oh, and here's the Supreme Court in a patent case in which it relied heavily on a Bobbs-Merrill Co. v. Straus copyright similarity.

"[T]o call the sale a license to use is a mere play upon words." Bauer & Cie. v. O'Donnell, 229 U.S. 1,16 (1913) http://caselaw.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=229&page=1

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