[c-nsp] IOS pirating requests

[Jeremy McDermond]

On Apr 8, 2008, at 4:58 AM, Ted Mittelstaedt wrote:

>
> You really need to be careful here.  Keep in mind
> that for the last decade software vendors have been scruplously
> avoiding having shrinkwrap licenses tested in court, there's not been
> a single court case of a software vendor (like Microsoft or Cisco)
> suing anyone for violating a shrinkwrap license that they did not
> explicitly sign and agree to abide by.

Not withstanding the issue of first sale doctrine, I don't think this  
is true.  In _ProCD, Inc. v. Zeidenberg_, 86 F. 3d. 1447 (7th Cir.  
1996) the Seventh Circuit said that "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 unconscionable)."  They further extended  
this to terms included in the box with hardware in _Hill v. Gateway  
2000_, 105 F.3d 1147 (7th Cir. 1997).  The Hills received a Gateway  
computer with terms and conditions inside including an arbitration  
clause.  The Hills sought to get out of the arbitration clause, but  
the court held that because they kept the computer more than thirty  
days, that they had assented to the terms in the contract contained in  
the computer box.  Note that the Uniform Commercial Code 2-204(1) says  
that "A contract for the 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."  The fact that you kept  
your Cisco router and operated it could be interpreted as acceptance  
of the software agreement that went with it.

> Ted

--
Jeremy McDermond
Xenotropic Systems
mcdermj at xenotropic.com