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Here's one reference to case law from 2006, though not the one I was referring to (which was much older). This one's relating to the use of said manuals for tracking maintenance intervals, rather than performing actual maintenance. The courts basically said not allowing use of the manuals in this way would grant a judicially-enforced monopoly on maintenance tracking and would be injurious to the enforcement of antitrust and restriction-of-trade laws. IIRC, the ruling I'm thinking of says something very similar with regard to using said manual for actual repairs; maintenance tracking was left for the courts to rule on in 2006 as it is a wholly different use of the manuals.

Usage of copyrighted Repair manuals can constitute fair use. Though Apple will force a court hearing to mount such a defense.

http://www.internetlibrary.com...

I don't think that is the same. It that case the FFA required gulfstream to make the manuals and release them to owners. the FFA also required owners to perform regular maintenance. This means there is a legal mandate that is not the same for computers. I think the issue is different and will not be a defense.

Usage of copyrighted Repair manuals can constitute fair use. Though Apple will force a court hearing to mount such a defense.

http://www.internetlibrary.com...

an EULA is a binding contract, and there has never been one thrown out of court to date.

Never? What about Klocek v. Gateway? The court found in that case that since the sale occurred before the "agreement" that the terms of the agreement were not part of the original sale and struck down the EULA. You better go back to law school for the second semester, obviously the stuff learned in the first semester isn't everything.

the GPL is largely untested in court.

No it isn't. It's been tested at the federal level.

Daniel Wallace tried to get the GPL declared invalid through stretching of legal concepts, and was thusly shown how stupid /that/ is.

Wallace v. International Business Machines Corp.
From Wikipedia, the free encyclopedia
Wallace v. International Business Machines Corp. et al., 467 F.3d 1104 (7th Cir. 2006), was a significant case in the development of free software. The case decided, at the Court of Appeals for the Seventh Circuit, that in United States law the GNU General Public License (GPL) did not contravene federal antitrust laws. Daniel Wallace, a United States citizen, sued the Free Software Foundation (FSF) for price fixing. In a later lawsuit, he unsuccessfully sued IBM, Novell, and Red Hat. Wallace claimed that free Linux prevented him from making a profit from selling his own operating system.[1]

And this quote from the decision shows that the courts completely understand the values behind the GPL and copyleft.

From the 7'th Circuit decision of the Wallace vs. IBM appeal:

http://www.internetlibrary.com...
  People may make and distribute derivative works if and only if they come under the same license terms as the original work. Thus the GPL propagates from user to user and revision to revision: neither the original author, nor any creator of a revised or improved version, may charge for the software or allow any successor to charge. Copyright law, usually the basis of limiting reproduction in order to collect a fee, ensures that open-source software remains free: any attempt to sell a derivative work will violate the copyright laws, even if the improver has not accepted the GPL. The Free Software Foundation calls the result âoecopyleft.â

And notice the subsequent utter silence from Darl and the lawyers at SCO, who were jumping up and down about the so-called unconstitutionality of the GPL. Among other things.

The validity of the GPL is now settled law.

but any element of it that is reasonably subject to interpretation can be interpreted any way you like

This is why you aren't a lawyer.

--
BMO - not a lawyer, but someone who doesn't agree with people who think that lawyers perform magic. They don't.

Tesla is refusing to set up dealerships, they want their own company store.

I believe Ford used to do the same thing, but back in the day (15 years ago) people didn't like the manufacturer owning the sales channels for cars so THE PEOPLE asked Texas to outlaw Ford from owning the dealerships. It was to prevent Ford from destroying all the small business dealerships in the state and taking all the profits to Detroit. Ford could cut prices to put dealerships out of business.

All the other people posting that business asked for this law are ignorant idiots.

[Citation Found]

Nissan Motor vs Nissan Computer says Nissan motors lost.

Finally, the Ninth Circuit held that issues of fact as to when Nissan Motor's "Nissan" mark became famous precluded an award of summary judgment to plaintiffs on their dilution claims. To establish a claim under the FTDA, a plaintiff must show "that (1) its mark is famous; (2) the defendant is making commercial use of the mark in commerce; (3) the defendant's use began after the plaintiff's mark became famous." Importantly, however, the statute further provides that plaintiff's mark must become famous before defendant's commercial and potentially diluting use of the mark began.

Give me any case law where liability could be assumed where
software is the specific cause of the issue.

Mortenson vs Timberline is the most well-known case pertaining to EULA liability disclaimers. In the case the Mortenson company failed to win a construction contract due to a "bug" in the Timberline software it was using, and sued for damages. The court ruled that the liability disclaimer in the EULA shielded Timberline from liability for these damages. Because of this case and because most software is licensed and includes liability disclaimers in the license, we no longer have lawsuits claiming damages due to buggy software. If we did, prices of software would have become astronomical due to the need to carry liability insurance.

Who said that the person who downloaded my code (whether licensed without a disclaimer of warranty clause, or unlicensed) is a customer of mine anyway?

The Supreme Court. See the case I linked to in my original post where a customer purchased a car from a dealer and was nevertheless able to sue the manufacturer even though he was not a direct customer. In your case, github would be in the role of a dealer due to its terms of use stipulating that you agree to allow anyone to download any code you publish on the site. So even though you did not directly sell your code, the people downloading it are your customers through github, and you are liable for their damages.

In the US at least, EULAs are regularly enforced in court. If you are presented with a EULA and push a button that says "I Accept," then you have accepted, whether or not you actually read the EULA. http://www.internetlibrary.com/publications/cwahe_art.cfm

As the anon poster mentioned, that was UK case law, and a really tragic and stupid ruling at that.

For US law, elsewhere somebody in this thread linked to http://en.wikipedia.org/wiki/Nominative_use , and somebody else mentioned Ty Inc. v. Ruth Perryman, which goes beyond advertising materials and included the name of the website and domain name.

From the ruling in that case:

"You can't sell a branded product without using its brand name, that is, its trademark. Supposing that Perryman sold only Beanie Babies ⦠we would find it impossible to understand how she could be thought to be blurring, tarnishing, or otherwise free riding to any significant extent on Ty's investment in its mark. To say she was would amount to saying that if a used car dealer truthfully advertised that it sold Toyotas, or if a muffler manufacturer truthfully advertised that it specialized in making mufflers for installation in Toyotas, Toyota would have a claim of trademark infringement."

Trademark law is all about protecting consumers from being deceived about the source of goods/services.

In theory, yes, but in practice (as you probably know, since you know what initial interest confusion is), that's not the reality. IIRC, consumers don't even have standing to sue in a case of trademark infringement. Maybe they can sue for false advertising, but it's the trademark owner who has to bring the lawsuit for infringement.

Besides, with the expansion of trademark due to the notion of "dilution", and the licensing of trademarks for purposes other than source-identification (sponsorship, etc. - the stadium doesn't come from M&T Bank), it's hard to argue that trademark is all about protecting consumers, or even mostly about it anymore.

In 1-800 Contacts v. WhenU, WhenU didn't run into trouble because their ads popped up in a separate window. That's not the case with Google (though they do clearly say "Sponsored Link"). WhenU was also not found to be "using" the trademark (despite including it in a database), because "use" of a trademark for the purpose of infringement has to be in commerce, and simply using the mark in a database didn't count as such.

They'd rather let the world know you don't F with Hasbro.

Do they really want another Clue Computing case?

See Klocek v. Gateway. Shrinkwrap licenses are not very well established, through clickwrap (i.e. those which require the user to view the document and indicate acceptance before they use the product) have met with more success.

That case didn't decide the "current criteria by which an EULA can be held unenforceable." It held that the arbitration clause in that contract was unconscionable for several reasons. PayPal tried to prevent its users from bringing a class action suit against it. It also had a clause that allowed it to change the EULA's terms at any time without notice. Any contract, EULA or not, would be held unconscionable for those reasons. The fact that it was a EULA was merely coincidence. The standard argument around here is that EULAs are unenforceable simply because they are EULAs. That is not the case in the U.S. The principle case on this issue is ProCD Inc. v. Zeidenberg . I suggest you read it. Furthermore, the Combs case was a district court in California. It was interpreting California law. It is also not binding anywhere, not even on the court that decided it.

http://www.internetlibrary.com/cases/lib_case209.cfm Court holds that Gateway's Standard Terms and Conditions, supplied along with and inside the packaging of a computer purchased by the plaintiff, do not create a binding contract with that consumer under either the law of either Missouri or Kansas. The court reached this conclusion despite the fact that the Standard Terms provide that they will constitute the terms of such an agreement if the consumer retains the computer for more than 5 days, and the consumer so retained the computer. Look up "Software license agreement", the law is not clear cut at all.

Disclaimer: I am not a lawyer but a law student.

I don't think the issue is as cut and dry as you say.

While it's clear that the mere receipt of a gift is not binding as a contract, and that under normal circumstances silence is not acceptance, retention of a good may be sufficient to justify enforcement of a shrinkwrap contract. (e.g., if consideration requirements are met. [Note to nonlawyers--The fact that gifts aren't binding is due to the lack of "consideration," a legal term meaning a "bargained-for exchange."])

In Hill v. Gateway 2000 , Judge Easterbrook held that retention of goods with a reasonable opportunity to return the merchandise can make a contract binding. 105 F. 3d 1147 (7th Cir. 1997).

In Hill, consideration wasn't an issue (goods were purchased), but I believe the reasoning is broad enough to allow implied consideration via retention and use. Easterbrook's reasoning didn't turn on whether the good was solicited or not, and could treat retention as an acceptance of an entire contract, including an implied exchange of consideration not expressly stated (a "bargained-for exchange," where Universal gains their publicity purpose and the recipient gains use of the media). It's weak, but the argument is there.

Additionally, Hill wasn't without controversy-- Klocek v. Gateway rejected this reasoning, in my opinion rightly, because it didn't apply the proper UCC analysis. 104 F.Supp.2d 1332 (D. Kan. 2000).

So in short, the requirements of a contract still need to be met, and the unsolicited nature of the 'gift' weighs heavily against this, but I can see the decision coming out the other way so long as the court 1) subscribes to the Easterbook reasoning, and 2) finds that retention and use of the object sufficient to satisfy consideration requirements. Not likely, but it wouldn't be as strange as, say, people having tentacle heads.

Here is a nice, short summary of what was really decided by the judge in this case, which has almost nothing to do with what the linked article said was decided.

Internet Archive v Suzanne Shell (PDF) She put up a 'shrinkwrap' agreement on her page, claiming that any unauthorized copying of her content entitled her to certain outrageous amounts of money. She did not have a robots.txt The Internet Archive crawler found her site, and proceeded to index and archive it. She then sued for a large sum of money, claiming that the archive had violated her terms of service and broken a contract.

"Access" means to gain entry to, instruct, or communicate with the logical, arithmetical, or memory function resources of a computer, computer system, or computer network.

(7) Knowingly and without permission accesses or causes to be accessed any computer, computer system, or computer network.