ProCD as a contract case: was part of the NBA/Motorola thread

Mark Lemley writes:
>
> >> Not at all. The Second Circuit cited the ProCD case with approval.
> >> That case held that copyright does not preempt contract law.
>
> Vance Koven writes:
> >
> > My memory of this may be fuzzy, but my impression that ProCD was not very
> > much about contract law at all, but about the application of Feist to the
> > transfer of phone books to CDROM. Anything the court would have said about
> > contract law there would have been dictum.
> >
> ************
>
> Actually, ProCD clearly *is* a contract case. The district court threw
> out ProCD's (verging on frivolous) argument that it had copyright
> protection for the data, citing Feist. The Seventh Circuit did not
> reverse on this ground. Nonetheless, the Seventh Circuit held that a
> shrinkwrap license that said "don't copy the data" was enforceable as a
> matter of contract law, and that that contract was not preempted under
> 17 USC sec. 301. The court did not consider whether enforcement of the
> contract was preempted because of a conflict with federal copyright
> policy (so-called "constitutional preemption,"), but presumably it
> thought there was no preemption, or it could not have reached the result
> it did.

Mark is sort of right that ProCD does not do a thorough constitutional preemption analysis. On the other hand, the court's analogy of ProCD with Aronson v. Quick Point Pencil and its statement that the shrinkwrap license in ProCD "serve[s] the same procompetitive functions as does the law of trade secrets" (implicitly, I think, invoking Kewanee Oil) suggests that the court was saying that it would not find constitutional preemption either.

        Bob Kreiss

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