On Mon., Feb. 24, 1997, Mark Lemley <mlemley[_at_]mail.law.utexas.edu> wrote:
>
> 3) Before passing on the narrowness of ProCD, you should read Hill v.
> Gateway 2000, an Easterbrook opinion from last month which expands its
> reasoning to the hardware context, where there wasn't even the fiction
> of a shrinkwrap license.
Gawd, turning a mail order computer purchase into a civil RICO case!
No, I don't think the ProCD/Hill decisions are narrow on the commercial law/contract formation issues. Not at all.
It's just that in ProCD, where copyright preemption was an issue (and it wasn't an issue in the Hill-Gateway decision), the rationale included the argument that nothing was withdrawn from the public domain by ProCD's shrink wrap agreement, since the facts could otherwise be ascertained. A court seeking to uphold a shrink wrap prohibition on reverse engineering, by contrast, probably would not be in a position to make that argument. Received on Tue Feb 25 1997 - 16:14:44 GMT
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