Re: More on ProCD

Ron Abramson <abramson[_at_]hugheshubbard.com> writes:
>
> 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 the argument that nothing was withdrawn from the public domain by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.
>

I agree with you that the situations are possibly distinguishable. But

(1) "nothing was withdrawn" from the public domain in this case only because nobody had ever reached Judge Easterbrook's result before. Were I a publisher of telephone books, I would be shrinkwrapping like mad right now, and then there certainly would be something taken away from the public domain.

(2) Judge Easterbrook tried to include anti-reverse-engineering clauses within the broad sweep of his opinion, by endorsing such clauses in dictum in the last paragraph of his opinion.

Mark Lemley
Assistant Professor, University of Texas School of Law Of Counsel, Fish & Richardson, P.C.
mlemley[_at_]mail.law.utexas.edu

For information on the Intellectual Property program at UT, see http://www.utexas.edu/law/intelprop/ Received on Thu Feb 27 1997 - 17:03:18 GMT