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PROCD, INCORPORATED, Plaintiff-Appellant, v. MATTHEW ZEIDENBERG
and SILKEN MOUNTAIN WEB SERVICES, INC., Defendants-Appellees.
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
; 1996 U.S. App. LEXIS 14951; 39 U.S.P.Q.2D (BNA) 1161; Copy. L.
Rep. (CCH) P27,529; 29 U.C.C. Rep. Serv. 2d (Callaghan) 1109
May 23, 1996, Argued
June 20, 1996, Decided
PRIOR HISTORY: [**1]
Appeal from the United States District Court for the Western District of Wisconsin. No.
95-C-0671-C. Barbara B. Crabb, Judge.
REVERSED AND REMANDED
Appellant sought review of the order of the United States District Court for the Western
District of Wisconsin, which declined to issue appellant an injunction on the basis that its license was ineffectual since it
was contained within packaged software.
Appellant included a shrink-wrap license in its packaged software. Appellant also chose to discriminate
in its pricing of the software between commercial and non-commercial users. Appellee purchased a consumer package
of the software, but chose to ignore the license restricting its use to non-commercial purposes. Seeking to enforce the
license, appellant filed for an injunction. The trial court denied the injunction, holding that the license was ineffectual
because the terms did not appear on the outside of the package. On appeal, the court held that the license was to be
treated as an ordinary contract accompanying the sale of products. While the terms of the license were included within
the package, its terms afforded the purchaser an opportunity to review the product and its terms before being bound.
Since the license agreement was a two-party contract, it was not equivalent to the rights of copyright.
The court reversed the denial of the injunction since under ordinary contract principles, appellant's
license was binding because appellee had the opportunity to review its terms before being bound.
license, software, consumer, database, buyer, package's, customer, user's, shrinkwrap, box, ticket,
trademark, warranty, vendor, seller's, trade secrets, exclusive rights, copyrighted, directory, federal law, general scope,
subject matter, intellectual property, telephone, printed, listings, carrier, preempt, inside, retail
Contracts Law > Defenses > Unconscionability > General Overview
Copyright Law > Conveyances > Licenses > Shrinkwrap