Archive for January, 2010

Student Question: Which Body Of Law to Apply

Tuesday, January 26th, 2010

In the last couple classes, we have debated issues about which body of law to apply when problems arise between licensor and licensee.  As an attorney, it seems prudent to avoid these issues, since these issues seem very prevalent. What preventative steps can be made to better facilitate these legal issues?  Would it be wise for parties of a contract to make a provision in their contract which specifies which body of law should be used if certain issues arise, similar to a provision about choice of jurisdiction?

~mc

Class Members Now Licensing IP Subscribers Contributors

Saturday, January 23rd, 2010

I have entered into the subscriber database of the WordPress software I am using for our class website the names of all those who gave me their e-mail addresses on Thursday last. Those individuals should have received e-mails from the system welcoming them as subscribers contributors and providing them with their user names (for this class, that means First Name followed by Last Name) and their password. Feel free to change the password. You can log in using the login button on the first page (the page you land at when you enter http://www.kalodner.com/ip/. Enter your user name and your password. If you look at the top of your screen, you will see the word “admin.” If you select it, you will be taken to a page on which you can change any of the existing data except your user name – and that includes changing your initial password to any password you prefer.

If you have not received a welcoming letter but you did put your name and e-mail address on the paper circulated on Thursday, that means I did not enter your e-mail address correctly. Please e-mail me at hkalodner@law.wnec.edu and I will correct the e-mail address in the WordPress subscriber list. If you did not put your name and e-mail address on that sign-up sheet, you will have another opportunity to do that during Tuesday’s class.

Video: ProCD v. Zeidenberg In Context

Wednesday, January 20th, 2010

 

This video was recorded in 2004 at the University of Wisconsin School of Law.

 

Professor Bill Whitford, a Professor of Contracts at the University of Wisconsin School of Law, conducted an interview of Matt Zeidenberg, the defendant, and David Austin, his attorney. The interview offers a rare glimpse into the views of litigants and their attorneys – and it does so in a case which is widely regarded as significant in the evolution of law as it copes with emerging technologies.

Assignments for January 26 to End of Term

Wednesday, January 13th, 2010

These are the assignments from January 26 to Spring Break:

January 26: read pages 57 – 77 (top)

January 28: read pages 77 – 97 (middle)

February 2: read pages 97-111 and 119-27

February 4: Today we will begin our discussion of Part II – TERMS OF A LICENSE. Chapter 5 deals with Interpretation and the Grant Clause. For February 4, read pages 193 – 217 (bottom)

February 9: read pages 217 – 43 (completes our discussion of Chapter 5)

February 11: For this and the next two classes, we will take up the subject of Chapter 6, Transfer, First Sale, and Exhaustion. For February 11, read pages 245 – 67

February 16: read pages 267 – 93 (you will need to read sections 109 and 117 of the Copyright Act, Statutory Supplement pages 23-25)

February 18: read pages 293 – 304 and U.S. Supreme Court Quanta opinion available here. (This assignment completes our discussion of Chapter 6)

February 23: In this class and the next we will discuss the cases and materials in Chapter 7, Implied Licenses. For March 2, read pages 305 – 26

February 25: read pages 326 – 55 (completes our discussion of Chapter 7)

March 2: Our discussion of the material in Chapter 8, Representations, Warranties, Covenants, and Liability Risk will take 3 class meetings. For March 2, read pages 355 – 80

March 4: read pages 380 – 401 Revised: 376 – 94 (bottom)

March 9: read pages 401 – 28 (Completes our discussion of this Chapter) Revised: 394 – 410 (See also, in the Category “Material for Class” the note on Section 552 of the Restatement of Torts 2d).

March 11: Catch up and review class Revised: 410 – 28

SPRING BREAK

March 23: read pages 429 – 54 (Chapter 9, License Terms to Preserve and Expand Property)

March 25: read pages 461 – 81 (Chapter 10, Duration of a License)

March 30: read pages 499 – 527 (top) (Chapter 11, Royalties and Other Payment Systems)

April 1: read pages 527 – 46 (Chapter 11, Royalties and Other Payment Systems)

April 6: read pages 547 – 69 (Chapter 12, Remedies on Breach of a License)

April 8: read pages 569 – 87 (Chapter 12, Remedies on Breach of a License)

April 13: ead pages 587 – 604 (Chapter 12, Remedies on Breach of a License)

April 15: read pages 741 – 53, 782 – 96  (Chapter 16, Parts III and IV, Electronic Restrictions on Use and Ownership and Software Development in Selected Issues in Software Transactions )

April 20: read pages 796 – 825  (Chapter 16, Parts V and VI, Warranty & Maintenance and Open Source Software in Selected Issues in Software Transactions )

April 22: In-Class License Exercises (see post entitled “License Exercise for April 22 Class.”)

April 27: In-Class License Exercises and REVIEW (last class of the semester)

Professor Eric Posner on ProCD v Zeidenberg

Sunday, January 10th, 2010

Professor Eric Posner, son of Judge Richard Posner (who, like Judge Easterbrook sits on the United States Court of Appeals for the 7th Circuit and, like Judge Easterbrook, was a member of the law faculty of the University of Chicago) recently published a paper both defending Judge Easterbrook’s opinion in the ProCD case and also attacking the many law professors who have written disparagingly of that opinion. If you would like to dig a bit deeper into an analysis of the opinion, this paper will be of interest to you.

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With respect both to Judge Easterbrook’s and Professor Posner’s reliance on the right of the buyer to return the ProCD product if he was not satisfied with it (or with the terms of the license), it is interesting to note the statements of David Austin, Matt Zeidenberg’s lawyer, in an interview with Professor Bill Whitford (University of Wisconsin School of Law). Here is an excerpt from the transcript:

[Dave:] One part of the deposition was focused on this unlimited downloading concept, and we were getting information about how other users of SelectPhone used the product. One of our points was that the product was used for commercial purposes and that they expected and  [*831]  knew people were using it for commercial purposes. We were trying to show that Matt’s use was expected and similar to regular use of the product. We also discussed their return policy; which, looking back, I’m sad that we didn’t develop more since Judge Easterbrook makes so much of the fact that if you don’t like the terms of the license you can just return it. And in fact in this deposition Bryant said, “We don’t have a return policy. We handle returns on an ad hoc basis. It could be accepted or not.” So Judge Easterbrook’s point that you can always return the product is not supported by the record in this case.
[Bill:] Was that deposition in the record?
[Dave:] Yes.

The entire transcript of Professor Whitford’s interview with David Austin and Matt Zeidenberg can be found here.

Exchange Among Law Professors on ProCD v. Zeidenberg

Saturday, January 9th, 2010

You may be interested in a discussion that took place in 2004 on the listserve used by law professors who teach Contracts Law.

I created a pdf of that discussion that you will find at this link:  ProCD_Zeidenberg_ListServ