The Computer Law Resource

ProCD Case Reversed!




In the United States Court of Appeals




For the Seventh Circuit




No. 961139







PROCD, INCORPORATED,




Plaintiff
Appellant,




v.




MATTHEW ZEIDENBERG and SILKEN MOUNTAIN




WEB SERVICES, INC.,




Defendants
Appellees.










Appeal from the United States District Court




for the Western District of Wisconsin.




No. 95C0671CBarbara B. Crabb,

Judge.










ARGUED MAY 23, 1996
DECIDED JUNE 20, 1996










   Before COFFEY, FLAUM, and EASTERBROOK, Circuit Judges.







   EASTERBROOK, Circuit Judge. Must buyers of computer software

obey the terms of shrinkwrap licenses? The district court held

not, for two reasons: first, they are not contracts because the

licenses are inside the box rather than printed on the outside;

second, federal law forbids enforcement even if the licenses are

contracts. 908 F.Supp. 640 (W.D. Wis. 1996). The parties and numerous

amici curiae have briefed many other issues, but these are the

only two that matterand we disagree with the district

judge's conclusion on each. Shrinkwrap licenses are enforceable

unless their terms are objectionable on grounds applicable to

contracts in general (for example, if they violate a rule of positive

law, or if they are un conscionable). Because no one argues

that the terms of the license at issue here are troublesome, we

remand with instructions to enter judgment for the plaintiff.









I




   ProCD, the plaintiff, has compiled information from more than

3,000 telephone directories into a computer database. We may assume

that this database cannot be copyrighted, although it is more

complex, contains more information (ninedigit zip codes

and census industrial codes), is organized differently, and therefore

is more original than the single alphabetical directory at issue

in Feist Publications, Inc. v. Rural Telephone Service Co., 499

U.S. 340 (1991).  See Paul J. Heald, The Vices of Originality,

1991 Sup. Ct. Rev. 143, 16068. ProCD sells a version of

the database, called SelectPhone (trademark), on CDROM discs.

(CDROM means "compact discread only memory."

The "shrinkwrap license" gets its name from the fact

that retail software packages are covered in plastic or cellophane

"shrinkwrap," and some vendors, though not ProCD, have

written licenses that become effective as soon as the customer

tears the wrapping from the package. Vendors prefer "end

user license," but we use the more common term.)  A proprietary

method of compressing the data serves as effective encryption

too.  Customers decrypt and use the data with the aid of an application

program that ProCD has written. This program, which is copyrighted,

searches the database in response to users' criteria (such as

"find all people named Tatum in Tennessee, plus all firms

with 'Door Systems' in the corporate name"). The resulting

lists (or, as ProCD prefers, "listings") can be read

and manipulated by other software, such as word processing programs.




   The database in SelectPhone (trademark) cost more than $10

million to compile and is expensive to keep current. It is much

more valuable to some users than to others. The combination of

names, addresses, and sic codes enables manufacturers to compile

lists of potential customers.  Manufacturers and retailers pay

high prices to specialized information intermediaries for such

mailing lists; ProCD offers a potentially cheaper alternative.

People with noth ing to sell could use the database as a

substitute for call ing long distance information, or as

a way to look up old friends who have moved to unknown towns,

or just as a electronic substitute for the local phone book. ProCD

decided to engage in price discrimination, selling its database

to the general public for personal use at a low price (approximately

$150 for the set of five discs) while selling information to the

trade for a higher price. It has adopted some intermediate strategies

too: access to the SelectPhone (trademark) database is available

via the America Online service for the price America Online

charges to its clients (approximately $3 per hour), but this service

has been tailored to be useful only to the general public.




   If ProCD had to recover all of its costs and make a profit

by charging a single pricethat is, if it could not

charge more to commercial users than to the general publicit

would have to raise the price substantially over $150. The ensuing

reduction in sales would harm consumers who value the information

at, say, $200. They get consumer surplus of $50 under the current

 
arrangement but would cease to buy if the price rose substantially.

If because of high elasticity of demand in the consumer segment

of the market the only way to make a profit turned out to be a

price attractive to commercial users alone, then all consumers

would lose outand so would the commercial clients,

who would have to pay more for the listings because ProCD could

not obtain any contribution toward costs from the consumer market.




   To make price discrimination work, however, the seller must

be able to control arbitrage. An air carrier sells tickets for

less to vacationers than to business travelers, using advance

purchase and Saturdaynightstay requirements to distinguish

the categories. A producer of movies segments the market by time,

releasing first to theaters, then to payperview services,

next to the videotape and laserdisc market, and finally to cable

and commercial tv.  Vendors of computer software have a harder

task. Anyone can walk into a retail store and buy a box. Customers

do not wear tags saying "commercial user" or "consumer

user." Anyway, even a commercialuserdetector

at the door would not work, because a consumer could buy the software

and resell to a commercial user. That arbitrage would break down

the price discrimination and drive up the minimum price at which

ProCD would sell to anyone.




   Instead of tinkering with the product and letting users sort

themselvesfor example, furnishing current data at

a high price that would be attractive only to commercial customers,

and twoyearold data at a low priceProCD

turned to the institution of contract. Every box containing its

consumer product declares that the software comes with restrictions

stated in an enclosed license. This license, which is encoded

on the CDROM disks as well as printed in the manual, and

which appears on a user's screen every time the software runs,

limits use of the application pro gram and listings to noncommercial

purposes.




   Matthew Zeidenberg bought a consumer package of SelectPhone

(trademark) in 1994 from a retail outlet in Madison, Wisconsin,

but decided to ignore the license. He formed Silken Mountain Web

Services, Inc., to resell the information in the SelectPhone (trademark)

database. The corporation makes the database available on the

Internet to anyone willing to pay its pricewhich,

needless to say, is less than ProCD charges its commercial customers.

Zeidenberg has purchased two additional SelectPhone (trademark)

packages, each with an updated version of the database, and made

the latest information available over the World Wide Web, for

a price, through his corporation. ProCD filed this suit seeking

an injunction against further dissemination that exceeds the rights

specified in the licenses (identical in each of the three packages

Zeidenberg purchased). The district court held the licenses ineffectual

because their terms do not appear on the outside of the packages.

The court added that the second and third licenses stand no different

from the first, even though they are identical, because they might

have been different, and a purchaser does not agree toand

cannot be bound byterms that were secret at the time

of purchase. 908 F. Supp. at 654.







II




   Following the district court, we treat the licenses as ordinary

contracts accompanying the sale of products, and therefore as

governed by the common law of contracts and the Uniform Commercial

Code. Whether there are legal differences between "contracts"

and "licenses" (which may matter under the copyright

doctrine of first sale) is a subject for another day. See Microsoft

Corp. v. Harmony Computers & Electronics, Inc., 846 F. Supp.

208 (E.D. N.Y. 1994). Zeidenberg does not argue that Silken Mountain

Web Services is free of any restrictions that apply to Zeidenberg

himself, because any effort to treat the two parties as distinct

would put Silken Mountain behind the eight ball on ProCD's argument

that copying the application program onto its hard disk violates

the copyright laws. Zeidenberg does argue, and the district court

held, that placing the package of software on the shelf is an

"offer," which the customer "accepts" by paying

the asking price and leaving the store with the goods. Peeters

v. State, 154 Wis. 111, 142 N.W. 181 (1913). In Wisconsin, as

elsewhere, a contract includes only the terms on which the parties

have agreed. One cannot agree to hidden terms, the judge concluded.

So far, so goodbut one of the terms to which Zeidenberg

agreed by purchasing the software is that the transaction was

subject to a license. Zeidenberg's position therefore must be

that the printed terms on the outside of a box are the parties'

contractexcept for printed terms that refer to or

incor porate other terms. But why would Wisconsin fetter

the parties' choice in this way? Vendors can put the entire terms

of a contract on the outside of a box only by using microscopic

type, removing other information that buyers might find more useful

(such as what the software does, and on which computers it works),

or both. The "Read Me" file included with most software,

describing system requirements and potential incompatibilities,

may be equivalent to ten pages of type; warranties and license

restrictions take still more space. Notice on the outside, terms

on the inside, and a right to return the software for a refund

if the terms are unacceptable (a right that the license expressly

extends), may be a means of doing business valuable to buyers

and sellers alike. See E. Allan Farnsworth, 1 Farnsworth on Contracts

sec. 4.26 (1990); Restatement (2d) of Contracts sec. 211 comment

a (1981) ("Standardization of agreements serves many of the

same functions as standardization of goods and services; both

are essential to a system of mass production and distribu

tion. Scarce and costly time and skill can be devoted to a class

of transactions rather than the details of individual transactions.").

 Doubtless a state could forbid the use of standard contracts

in the software business, but we do not think that Wisconsin has

done so. 




   Transactions in which the exchange of money precedes the communication

of detailed terms are common. Consider the purchase of insurance.

The buyer goes to an agent, who explains the essentials (amount

of coverage, number of years) and remits the premium to the home

office, which sends back a policy. On the district judge's understanding,

the terms of the policy are irrelevant because the insured paid

before receiving them. Yet the device of payment, often with a

"binder" (so that the insurance takes effect immediately

even though the home office reserves the right to withdraw coverage

later), in advance of the policy, serves buyers' interests by

accelerating effectiveness and reducing transactions costs.  Or

consider the purchase of an airline ticket. The traveler calls

the carrier or an agent, is quoted a price, reserves a seat, pays,

and gets a ticket, in that order. The ticket contains elaborate

terms, which the traveler can reject by canceling the reservation.

To use the ticket is to accept the terms, even terms that in retrospect

are disadvantageous. See Carnival Cruise Lines, Inc. v. Shute,

499 U.S. 585 (1991); see also Vimar Seguros y Reaseguros, S.A.

v. M/V Sky Reefer, 115 S. Ct. 2322 (1995) (bills of lading). Just

so with a ticket to a concert. The back of the ticket states that

the patron promises not to record the concert; to attend is to

agree. A theater that detects a violation will confiscate the

tape and escort the violator to the exit. One could arrange things

so that every concertgoer signs this promise before forking over

the money, but that cumbersome way of doing things not only would

lengthen queues and raise prices but also would scotch the sale

of tickets by phone or electronic data service.




   Consumer goods work the same way. Someone who wants to buy

a radio set visits a store, pays, and walks out with a box. Inside

the box is a leaflet containing some terms, the most important

of which usually is the warranty, read for the first time in the

comfort of home. By Zeidenberg's lights, the warranty in the box

is irrelevant; every consumer gets the standard warranty implied

by the UCC in the event the contract is silent; yet so far as

we are aware no state disregards warranties furnished with consumer

products. Drugs come with a list of ingredients on the outside

and an elaborate package insert on the inside. The package insert

describes drug interactions, contraindications, and other vital

informationbut, if Zeidenberg is right, the purchaser

need not read the package insert, because it is not part of the

contract.




   Next consider the software industry itself. Only a minor

ity of sales take place over the counter, where there are boxes

to peruse. A customer pay place an order by phone in response

to a line item in a catalog or a review in a magazine. Much software

is ordered over the Internet by purchasers who have never seen

a box. Increasingly software arrives by wire. There is no box;

there is only a stream of electrons, a collection of information

that includes data, an application program, instructions, many

limitations ("MegaPixel 3.14159 cannot be used with BytePusher

2.718"), and the terms of sale. The user purchases a serial

number, which activates the software's features.  On Zeidenberg's

arguments, these unboxed sales are unfettered by termsso

the seller has made a broad warranty and must pay consequential

damages for any shortfalls in performance, two "promises"

that if taken seriously would drive prices through the ceiling

or return transactions to the horseandbuggy age.




   According to the district court, the UCC does not counte

nance the sequence of money now, terms later. (Wisconsin's version

of the UCC does not differ from the Official Version in any material

respect, so we use the regular numbering system. Wis. Stat. sec.

402.201 corresponds to UCC sec. 2201, and other citations

are easy to derive.) One of the court's reasonsthat

by proposing as part of the draft Article 2B a new UCC sec. 22203

that would explicitly validate standardform user licenses,

the American Law Institute and the National Conference of Commissioners

on Uniform Laws have conceded the invalidity of shrink-wrap licenses

under current law, see 908 F. Supp. at 65566depends

on a faulty inference. To propose a change in a law's text is

not necessarily to propose a change in the law's effect. New words

may be designed to fortify the current rule with a more precise

text that curtails uncertainty. To judge by the flux of law review

articles discussing shrinkwrap licenses, uncertainty is much in

need of reductionalthough businesses seem to feel

less uncertainty than do scholars, for only three cases (other

than ours) touch on the subject, and none directly addresses it.

See StepSaver Data Systems, Inc. v. Wyse Technology, 939

F.2d 91 (3d Cir. 1991); Vault Corp. v. Quaid Software Ltd., 847

F.2d 255, 26870 (5th Cir. 1988); Arizona Retail Systems,

Inc. v. Software Link, Inc., 831 F. Supp. 759 (D. Ariz. 1993).

As their titles suggest, these are not consumer transactions.

StepSaver is a battleoftheforms case,

in which the parties exchange incompatible forms and a court must

decide which prevails. See Northrop Corp. v. Litronic Industries,

29 F.3d 1173 (7th Cir. 1994) (Illinois law); Douglas G. Baird

& Robert Weisberg, Rules, Standards, and the Battle of the

Forms: A Reassessment of sec. 2207, 68 Va. L. Rev. 1217,

122731 (1982). Our case has only one form; UCC sec. 2207

is irrelevant. Vault holds that Louisiana's special shrinkwraplicense

statute is preempted by federal law, a question to which

we return.  And Arizona Retail Systems did not reach the question,

because the court found that the buyer knew the terms of the license

before purchasing the software.




   What then does the current version of the UCC have to say?

We think that the place to start is sec. 2204(1): "A

contract for sale of goods may be made in any manner sufficient

to show agreement, including conduct by both parties which recognizes

the existence of such a contract." A vendor, as master of

the offer, may invite acceptance by conduct, and may propose limitations

on the kind of conduct that constitutes acceptance. A buyer may

accept by performing the acts the vendor proposes to treat as

acceptance. And that is what happened. ProCD proposed a contract

that a buyer would accept by using the software after having an

opportunity to read the license at leisure. This Zeidenberg did.

He had no choice, because the software splashed the license on

the screen and would not let him proceed without indicating acceptance.

So although the district judge was right to say that a contract

can be, and often is, formed simply by paying the price and walking

out of the store, the UCC permits contracts to be formed in other

ways. ProCD proposed such a different way, and without protest

Zeidenberg agreed. Ours is not a case in which a consumer opens

a package to find an insert saying "you owe us an extra $10,000"

and the seller files suit to collect. Any buyer finding such a

demand can prevent formation of the contract by returning the

package, as can any consumer who concludes that the terms of the

license make the software worth less than the purchase price.

Nothing in the UCC requires a seller to maximize the buyer's net

gains.  




   Section 2606, which defines "acceptance of goods",

reinforces this understanding. A buyer accepts goods under sec.

2606(1)(b) when, after an opportunity to inspect, he fails

to make an effective rejection under sec. 2602(1). ProCD

extended an opportunity to reject if a buyer should find the license

terms unsatisfactory; Zeidenberg inspected the package, tried

out the software, learned of the license, and did not reject the

goods. We refer to sec. 2606 only to show that the opportunity

to return goods can be important; acceptance of an offer differs

from acceptance of goods after delivery, see Gillen v. Atalanta

Systems, Inc., 997 F.2d 280, 284 n.1 (7th Cir. 1993); but the

UCC consistently permits the parties to structure their relations

so that the buyer has a chance to make a final decision after

a detailed review.




   Some portions of the UCC impose additional requirements on

the way parties agree on terms. A disclaimer of the implied warranty

of merchantability must be "conspicuous." UCC sec. 2316(2),

incorporating UCC sec. 1201(10). Promises to make firm offers,

or to negate oral modifications, must be "separately signed."

UCC secs. 2205, 2209(2).  These special provisos reinforce

the impression that, so far as the UCC is concerned, other terms

may be as inconspicuous as the forumselection clause on

the back of the cruise ship ticket in Carnival Lines. Zeidenberg

has not located any Wisconsin casefor that matter,

any case in any stateholding that under the UCC the

ordinary terms found in shrinkwrap licenses require any special

prominence, or otherwise are to be undercut rather than enforced.

In the end, the terms of the license are conceptually identical

to the contents of the package. Just as no court would dream of

saying that SelectPhone (trademark) must contain 3,100 phone books

rather than 3,000, or must have data no more than 30 days old,

or must sell for $100 rather than $150although any

of these changes would be welcomed by the customer, if all other

things were held constantso, we believe, Wisconsin

would not let the buyer pick and choose among terms. Terms of

use are no less a part of "the product" than are the

size of the database and the speed with which the software compiles

listings. Competition among vendors, not judicial revision of

a package's contents, is how consumers are protected in a market

economy. Digital Equipment Corp. v. Uniq Digital Technologies,

Inc., 73 F.3d 756 (7th Cir. 1996).  ProCD has rivals, which may

elect to compete by offering superior software, monthly updates,

improved terms of use, lower price, or a better compromise among

these elements. As we stressed above, adjusting terms in buyers'

favor might help Matthew Zeidenberg today (he already has the

software) but would lead to a response, such as a higher price,

that might make consumers as a whole worse off.







III




   The district court held that, even if Wisconsin treats shrinkwrap

licenses as contracts, sec. 301(a) of the Copyright Act, 17 U.S.C.

sec. 301(a), prevents their enforcement. 908 F. Supp. at 65659.

The relevant part of sec. 301(a) preempts any "legal or equitable

rights [under state law] that are equivalent to any of the exclusive

rights within the general scope of copyright as specified by section

106 in works of authorship that are fixed in a tangible medium

of expression and come within the subject matter of copyright

as specified by sections 102 and 103". ProCD's soft

ware and data are "fixed in a tangible medium of expression",

and the district judge held that they are "within the subject

matter of copyright". The latter conclusion is plainly right

for the copyrighted application program, and the judge thought

that the data likewise are "within the subject matter of

copyright" even if, after Feist, they are not sufficiently

original to be copyrighted. 908 F.Supp. at 65657. Baltimore

Orioles, Inc. v. Major League Baseball Players Ass'n, 805 F.2d

663, 676 (7th Cir. 1986), supports that conclusion, with which

commentators agree. E.g., Paul Goldstein, III Copyright sec. 15.2.3

(2d ed. 1996); Melville B. Nimmer & David Nimmer, Nimmer on

Copyright sec. 101[B] (1995); William F. Patry, II Copyright Law

and Practice 110809 (1994). One function of sec. 301(a)

is to prevent states from giving special protection to works of

authorship that Congress has decided should be in the public domain,

which it can accomplish only if "subject matter of copyright"

includes all works of a type covered by sections 102 and 103,

even if federal law does not afford protection to them. Cf. Bonito

Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141 (1989)

(same principle under patent laws).




   But are rights created by contract "equivalent to any

of the exclusive rights within the general scope of copyright"?

Three courts of appeals have answered "no." National

Car Rental Systems, Inc. v. Computer Associates International,

Inc., 991 F.2d 426, 433 (8th Cir. 1993); Taquino v. Teledyne Monarch

Rubber, 893 F.2d 1488, 1501 (5th Cir. 1990); Acorn Structures,

Inc. v. Swantz, 846 F.2d 923, 926 (4th Cir. 1988). The district

court disagreed with these decisions, 908 F. Supp. at 658, but

we think them sound. Rights "equivalent to any of the exclusive

rights within the general scope of copyright" are rights

established by lawrights that restrict the options

of persons who are strangers to the author. Copyright law forbids

duplication, public performance, and so on, unless the per

son wishing to copy or perform the work gets permission; silence

means a ban on copying. A copyright is a right against the world.

Contracts, by contrast, generally affect only their parties; strangers

may do as they please, so contracts do not create "exclusive

rights." Someone who found a copy of SelectPhone (trademark)

on the street would not be affected by the shrinkwrap licensethough

the federal copyright laws of their own force would limit the

finder's ability to copy or transmit the application program.




   Think for a moment about trade secrets. One common trade secret

is a customer list. After Feist, a simple alpha betical

list of a firm's customers, with address and tele phone

numbers, could not be protected by copyright. Yet Kewanee Oil

Co. v. Bicron Corp., 416 U.S. 470 (1974), holds that contracts

about trade secrets may be enforcedprecisely because

they do not affect strangers' ability to discover and use the

information independently. If the amendment of sec. 301(a) in

1976 overruled Kewanee and abolished consensual protection of

those trade secrets that cannot be copyrighted, no one has noticedthough

abolition is a logical consequence of the district court's approach.

Think, too, about everyday transactions in intellectual property.

A customer visits a video store and rents a copy of Night of the

Lepus. The customer's contract with the store limits use of the

tape to home viewing and requires its return in two days. May

the customer keep the tape, on the ground that sec. 301(a) makes

the promise unenforceable?




   A law student uses the LEXIS database, containing publicdomain

documents, under a contract limiting the results to educational

endeavors; may the student resell his access to this database

to a law firm from which LEXIS seeks to collect a much higher

hourly rate? Suppose ProCD hires a firm to scour the nation for

telephone directories, promising to pay $100 for each that ProCD

does not already have. The firm locates 100 new directories, which

it sends to ProCD with an invoice for $10,000. ProCD incorporates

the directories into its database; does it have to pay the bill?

Surely yes; Aronson v. Quick Point Pencil Co., 440 U.S. 257 (1979),

holds that promises to pay for intellectual property may be enforced

even though federal law (in Aronson, the patent law) offers no

protection against thirdparty uses of that property. See

also Kennedy v. Wright, 851 F.2d 963 (7th Cir. 1988). But these

illustrations are what our case is about. ProCD offers software

and data for two prices: one for personal use, a higher price

for commercial use. Zeidenberg wants to use the data without paying

the seller's price; if the law student and Quick Point Pencil

Co. could not do that, neither can Zeidenberg.




   Although Congress possesses power to preempt even the enforcement

of contracts about intellectual property or railroads,

on which see Norfolk & Western Ry. v. Train Dispatchers, 499

U.S. 117 (1991)courts usually read preemption

clauses to leave private contracts unaffected.  American Airlines,

Inc. v. Wolens, 115 S. Ct. 817 (1995), provides a nice illustration.

A federal statute preempts any state "law, rule, regulation,

standard, or other provision . . . relating to rates, routes,

or services of any air carrier." 49 U.S.C. App. sec. 1305(a)(1).

Does such a law preempt the law of contractsso that,

for example, an air carrier need not honor a quoted price (or

a contract to reduce the price by the value of frequent flyer

miles)? The Court allowed that it is possible to read the statute

that broadly but thought such an interpretation would make little

sense. Terms and conditions offered by contract reflect private

ordering, essential to the efficient functioning of markets. 115

S. Ct. at 82425. Although some principles that carry the

name of contract law are designed to defeat rather than implement

consensual trans actions, id. at 826 n.8, the rules that

respect private choice are not preempted by a clause such as sec.

1305(a)(1). Sec tion 301(a) plays a role similar to sec.

1301(a)(1): it prevents states from substituting their own regulatory

systems for those of the national government. Just as sec. 301(a)

does not itself interfere with private transactions in intellectual

property, so it does not prevent states from respecting those

transactions. Like the Supreme Court in Wolens, we think it prudent

to refrain from adopting a rule that anything with the label "contract"

is necessarily outside the preemption clause: the variations and

possibilities are too numerous to foresee. National Car Rental

likewise recognizes the possibility that some applications of

the law of contract could interfere with the attainment of national

objectives and therefore come within the domain of sec. 301(a).

But general enforcement of shrinkwrap licenses of the kind before

us does not create such interference.




   Aronson emphasized that enforcement of the contract between

Aronson and Quick Point Pencil Company would not withdraw any

information from the public domain.  That is equally true of the

contract between ProCD and Zeidenberg. Everyone remains free to

copy and disseminate all 3,000 telephone books that have been

incorporated into ProCD's database. Anyone can add sic codes and

zip codes. ProCD's rivals have done so. Enforcement of the shrinkwrap

license may even make information more readily available, by reducing

the price ProCD charges to consumer buyers. To the extent licenses

facilitate distribution of object code while concealing the source

code (the point of a clause forbidding disassembly), they serve

the same procompetitive functions as does the law of trade secrets.

Rockwell Graphic Systems, Inc. v. DEV Industries, Inc., 925 F.2d

174, 180 (7th Cir. 1991). Licenses may have other benefits for

consumers: many licenses permit users to make extra copies, to

use the software on multiple computers, even to incorporate the

software into the user's products. But whether a particular license

is generous or restrictive, a simple twoparty contract is

not "equivalent to any of the exclusive rights within the

general scope of copyright" and therefore may be enforced.









REVERSED AND REMANDED





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