Re: [dvd-discuss] Interesting 1st sale-shrinkwrap-EULA-(c) infringementcase

[Bryan Taylor <bryan_w_taylor(at)yahoo.com>]

--- Jeme A Brelin <jeme@brelin.net> wrote:

> My girlfriend is a law student and in her Contracts course, she's been
> studying the ProCD case.
> 
> We've been marvelling over the gymnastics (legal and linguistic) that the
> judges had to go through in the decision to make this sound like a real
> contract.  Essentially, they were just trying to twist the law to
> compensate for a common business practice and claim that there is really
> "no other way" to do business.  Poppycock.

ProCD also rules that such contracts are not preempted by the Copyright Act.
Your girlfriend might be interested in Nimmer's dismantling of ProCD's
reasoning:

http://cyber.law.harvard.edu/ilaw/Contract/nimmer.html

> The most stupid and frustrating bit is that it puts BOTH sides of the
> contract deal (offer and acceptance) on the customer.  It's almost like
> the retailer and the manufacturer are not even parties to the deal.




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