Your questions don't t square with the story that's been told so far.
You have a professor who is a well respected in the area of computer architecture disclosing details of this idea to Intel many years before Intel actually started using the technology. You have an institution that attempted to license those rights before Intel started using the technology, but whose attempts were thwarted. That same institution's attempts to negotiate a license were again thwarted less than 5 years after Intel start producing chips with that technology.
And, besides, independent development IS NOT a defense to patent infringement (though it's a defense to copyright infringement). And, even if it were, access to the information would certainly undermine that defense.
It seems the Intel was really just spoiling for a fight.
First, federal law requires that inventions made with federal funds must either be commercialized by the inventing institution or given up to the government (the gov't can then decide not to take title and title reverts to the inventor). It's called Bayh-Dole. Allowing title to revert to the government or the inventor is not particularly good results. Well funded tech transfer offices are much better at getting technology to licensees than either the federal government or the inventor. Besides, the federal government gets a royalty-free license to use the technology for its own purposes, a nice benefit to the US government.
Second, in this case, WARF actually contributes significantly to both the University of Wisconsin Madison (a state school) and to the inventors, inventing laboratory and inventing department. You can read about the process here: http://warf.ws/inventors/index.jsp?cid=14&scid=40
Third, WARF has been at this for a very long time. They're a very sophisticated patenting and licensing entity. They have definitely thought this through. According to their website, they are also not in the business of patenting every idea that every professor discloses to them (they say 60% of disclosures, but who knows).
Furthermore, they're a great asset to those inventors without the means to pursue licensing and patent protection on their own. Inventors pay nothing up front for what is otherwise a very expensive, time consuming ordeal.
You very obviously do not know how tech transfer offices work. In this case, the money from licensing technology assigned to WARF is divided up among 1) the inventors 2) the lab the invention came out of 3) the department and 4) to WARF.
The inventors receive 20 percent of the gross royalty revenue generated by a licensed invention. Payments are made to the inventors in the month following the receipt of the royalty payment.
Look, a vast number of disputes don't occur because of the lawyer--though, admittedly, some do. A good lawyer is a value adder, and getting a lawyer up front can go a long way to avoiding a much more costly dispute down the road.
The only reason that people seem to "hate" lawyers is because they're usually brought in at the time that people are already fighting or there is already a dispute. Most lawyers aren't in the business of making disputes; they're in the business of resolving disputes for clients that are paying them. Again, the point of getting a lawyer up front is to avoid those later disputes.
Also, as I said, I have no problem with plain language drafting. In fact, I'd prefer that people use simpler language. The fact is, though, that using plain language can be difficult. As with anything, making something simple means knowing the issues the more legalistic language was crafted to avoid. In the posted example, it took me all of two minutes to spot a number of issues, and all we saw was a single paragraph.
I could come up with more: the paragraph only deals with the software, does that include documentation and source code? What are the terms of the delivery of that stuff (presumably if the software was owned by the Company, the developer probably shouldn't have a copy of it anywhere after the services were complete). What are the terms of under which the company can request that license? It says royalty free, but royalty free doesn't mean free? What if the developer sells it to a third party, does that license persist?
I have to admit, I rolled my eyes when I saw the text of your letter agreement. I hope that no one else uses it.
First, your agreement might fail if there were a dispute since there appears to be no consideration for the assignment of rights. There's not even the nominal $1 token-consideration (even if that would have worked). Without consideration there is no agreement; no agreement means no assignment of rights. That said, you could probably argue that your offer at the bottom would be parole evidence of consideration, but that's outside the four corners of your letter agreement. However, like most attempts, your letter agreement fails to get the business deal right and probably fails for that reason.
Second, from a writing perspective, it uses a funky tense and lacks timing. Is this the agreement or was the agreement sometime prior and this is just a follow up letter (this letter is confirmation). That's just sloppy. If this is just a confirmation, which terms would govern? And, when did the transfer actually occur?
Third, you make a very common mistake sometimes called "elegant variation." Is this an assignment [first sentence], a license [second sentence], or a sale (transfer of something tangible) [third sentence]? Those three things are not necessarily synonymous.
Finally, while I do agree that nothing fancy is necessary to effect a transfer, you haven't done it very well.
Well, I doubt very much that even your monkey example works. The issue, really, is what you include within the set of acts that would constitute prior research.
I'm not sure how you know there was no predecessor in your example, or if its even a real example. However, there's a relatively obvious chain one could construct. For example, and contrary to your example, even a monkey probably knew that eating a potato fresh out of the ground wasn't pleasant so they started by dusting it off to get rid of dirt. But, that wasn't entirely clean. And, when the potato was left out in the rain, the potatoes were cleaner. Splashing them in rivers or puddles worked even better. And when one monkey realized that the ocean works too, you've got your salted potatoes.
Whether you include the process of cleaning to remove dirt in the chain of invention is really a definitional issue. Each step resulted in a better potato. It's true, in my example, that the addition of salt was somewhat accidental, but no less "incremental." Indeed, if you expanded the steps far enough, even getting a potato out of the ground involves some step monkey must have figured out.
There is no valid contract for you to pay for your food when you go into a restaurant, yet few people dine and dash. No one would assume the restaurant is just giving you the food for free. What there is is an implied contract.
I see things like this written all of the time on Slashdot. It usually doesn't come up in stories about tax, but usually ones about EULAs.
When you place an order for food, there is actually a contract. A valid contract requires: offer, acceptance, consideration and assent. Absent some extraordinary situation, the moment the restaurant starts making the food you've ordered, there's a contract. You're obligated to pay. Dine and dash is a sort of breach of contract. It's also conversion.
An "implied contract" is somewhat of a different beast. It's more of a legal fiction that prevents someone from knowingly obtaining the benefit of another's mistake. E.g. a court might imply a contract if you eat the $1000 meal meant for another table and then try to say that you're not going to pay for it because you only ordered a diet soda.
And, as it relates to taxes, a contract analogy is not a very good one. Lots of people don't pay taxes and yet get the benefits of the tax system. Moreover, a number of people pay more taxes than the value of the actual benefit received from them. There's also no way to reject the benefit since moving elsewhere is not usually a viable option--in a contract, this might be an example of duress.
Sure, you could patent a board game. It has to be the criteria for a patent, but otherwise, sure. And, many games are patented.
However, most games are also copyrighted and trademarked (as I'm sure scrabble is). Copyright will reach a particular expression of the scrabble game idea: instructions, board, board design, pieces, etc.
Trademark will reach the name and any names confusingly similar.
I'm sure that Hasbro is concerned about both copyright and trademark. Copyright is probably a weaker argument here, but it's very likely that scrabulous' board, colors, layout, etc. are nearly identical. Though, I've never played it, so I'm only guessing.
Trademark, however, seems much stronger. The two names are too close. And, worse yet, the developers were obviously trying to capitalize on the name Scrabble in order to get people to play their game. Cheap advertising--exactly the sort of thing TM was created to prevent. It's probably a lot more difficult to get players if they named their game "Square board word game" or some made up name. In fact, I'm sure that everyone reading "Scrabulous sued by Hasbro" immediately thought of Scrabble. It wouldn't be too difficult to show likelihood of confusion.
Are they bone stock Mustangs? No. They're selling the calendar by exploiting their OWN customizations and work, that built upon the Ford design (mark).
That's not clear at all from the article (I know I know... this is slashdot). The picture sure looks a lot like a slightly modified Ford Mustang. And even if it were true, making significant alterations to the car and nevertheless using the mark is one of the big possible exceptions to even using the name nominatively.
It's clearly sold as a club venture, to a niche market, so speculating that a consumer might think differently is insulting to their more knowledgeable customer-base... Unless you did a repeatable survey of their customers, I'd say your into WAG territory with intent to inject FUD.
It's sold through Cafepress. Not exactly a niche. However, you're right, the question of which consumer market to survey is a good question, but saying that a certain group would be insulted is not the point. In fact, in goods like calendars, courts would probably not apply a discerning consumer test since it's unlikely to be a decision most consumers would waste a significant amount of brain power on--as compared to say the car itself. Courts have applied even low standards for consumer confusion to considerably more expensive goods.
On the one hand you are selling the actual good (the car itself) that you legally acquired from Ford under the name that you purchased it. So an ad saying "Buy my Ford Mustang" is safe so long as it's a Ford Mustang. Even taking a picture of the Ford you're selling will likely be safe.
On the other hand, you're selling a different good (a calendar) using the mark owned by Ford.
As I've now said in a bunch of posts, the issues are: 1) was the use of the marks on the calendar a use in commerce; and 2) is the use likely to cause confusion.
The answer to the first question is very clearly yes--they are/were SELLING a calendar by exploiting the the Ford marks. In some sense, it doesn't make sense for them to do it any other way.
The second answer also seems to be likely "yes." A consumer picking up the calendar about Ford Mustangs might think that the goods originated with Ford or someone authorized to use.
If Ford was one of the world's major calendar manufacturers, that might be true. But they're not.
This is not a criteria for trademark protection. Ford or Ford's licensees probably have produced calendars using the Ford marks. Just like they've probably put out t-shirts, towels, computer programs, pens, toilet seats, etc.
I really need to just stop reading any I.P. posts that come across Slashdot. Most of the posts that are moderated up just get it all wrong.
Not true. Not unless you're using the photos of those cars in commerce as a trademark. Simply taking pictures doesn't infringe anyone's trademark. Taking picture of Ford Cars to sell a calendar about Ford Cars very well may.
First, what you're describing isn't an estoppel, it'd be a laches defense.
Second, nothing stops someone from using the name Ford or Ford Mustang nomatively. You don't have to refer to the company as "That car company with the blue oval logo that sells the pony car named after a wild horse."
Third, not every use is going to be unlicensed. Many of those hits are probably dealerships.
Fourth, to the used cars, remember the question is whether a consumer is likely to be confused as to the source of the product. If you're calling a ford mustang a ford mustang, you're probably safe. If you're trying to sell a Datsun as a mustang, you've got a different problem.
Finally, NONE of this has to do with the case here. Using Ford's marks to sell a calendar is VERY different than using Ford's marks to sell a Ford car that you was lawfully acquired.
You are certainly right that trademark laws were originally developed for consumer protection purposes (a shortcut for identifying source).
However, you're probably not right about the selling calendar thing. My guess is that Ford or its licensees have produced Ford Mustang calendars. So my guess is that use of the Mustang marks for calendars is probably a category of good which they are already in the business of exploiting. The same thing for just about every other type of merchandise: t-shirts, bumper stickers, etc.
Let's be careful about what we're talking about. People like the parent and the OP are mighty confused about their intellectual property law. A quick refresher:
Copyright = an original work of authorship fixed in a tangible medium of expression. Trademark = any device that associates a good with the source of that good.
Ford has LOTS of trademarks when I search for "Mustang" at the PTO. Since a trademark could arguably cover the look of the Mustang (I did not go through the huge list), they could either have federal trademark protection in the look. Even if there weren't a federal mark, Ford probably has common law rights in a trademark for the look.
This, though, has NOTHING to do with the ownership of the photographs. The copyrights to the photographs will belong to the photographers. This does not mean that the copyright owner can use the photographs for whatever purpose they want. There may be other intervening laws (privacy, publicity, decency, trademark, etc.). By way of example, if I took a picture of a Gucci logo I would own the photograph (if it met the criteria for copyright), but I can't freely paste that picture on to a purse and claim a defense of "well I own copyright."
So the real question here is, is whether the use of Ford's trademark (perhaps even more than one) covering the Mustang infringed by the sale of the calendar. The test is whether such a use is likely to cause confusion as to the source of the calendar. And, frankly, it seems pretty clear that it could: if you saw a calendar, you'd probably think that either Ford or Ford's authorized licensee put out the calendar. So you have a trademark infringement. The only question then is whether there is fair use here, and I don't see it.
First, unless your father lives in the middle of nowhere, he doesn't need to buy the HD package from his satellite provider to use the HD features. A really crappy pair of bunny ears will suffice to get most of the "important" channels anyway. But, paying the extra $20 gets you lots of nice "other" channels.
Second, while football is nice, H-D programming looks so nice that I can't stand to watch regular television anymore. I was even somewhat surprised to notice real differences with things like the Simpsons.
Third, I have plenty of older DVDs that upconvert very nicely. They're not HD quality, but they are definitely better than on my standard TVs.
Finally, even if you don't buy an HDTV for the HD, if you want a flat-panel or something that's not a huge ugly beast, there's really no option. It boggles my mind that anyone purchases standard tvs for any reason any more. They're just so... big and ugly.
I would imagine the bigger problem isn't people relying directly on youtube for medical information. It's the fact that those videos on youtube can be linked from webpages and sites that look more authoritative and appear at the top of search results about things like "childhood vaccines" or "hpv vaccine side effects" etc.
As one of the authors of the JN article (look for my name backwards) let me be first to say that JN doesn't work as well in civil cases. It's true that a jury COULD do whatever they want, but a judge has the power to reverse the jury in civil cases Judgment notwithstanding the verdict and, assuming a judge doesn't grant the JNOV, appeal the verdict to a higher court.
The reason it works so well in criminal trials is because there is no JNOV. If the jury acquits, the prosecutor cannot get a JNOV or appeal the jury decision.// This is not legal advice.
First, even the most onerous EULAs have a warranty that looks something like this: "Licensor represents to you that the Software will perform substantially in accordance with the Documentation. LICENSOR HEREBY DISCLAIMS ALL OTHER WARRANTIES..." Therefore, you'd probably have a remedy.
Second, even if they didn't have that warranty, there may be a fraud issue. Fraud can invalidate a contract--including the limitation of liability.
Third, if there's not fraud, there could be mistake. Mistake may void a contract as well.
Finally, the limitation of liability is really meant to protect the software vendor from risks that they have not priced into the sale of software to you. Therefore, both parties will share the risk (though, disproportionately on you). As I said in another comment, a limitation of liability may not be enforceable if relates to a protected party's gross negligence or willful misconduct.
This standard probably wouldn't reach bad programming or bad design. If that were the case, a lot more software companies would need a lot more insurance. In fact, it would probably make OSS impossible.
First, most courts today state that the fundamentals of contract law are: offer, acceptance and consideration. While it is true, that "meeting of the minds" (assent) has historically been listed as one of those elements, you give it too much weight. Courts nowadays have basically disregarded it as a requirement of contract (See Mark Lemley's "Terms of Use" for a long list of citations). I bet that there are very few courts that wouldn't enforce a contract merely because someone didn't read it and didn't negotiate it. To a court, a manifestation of "assent" (such as clicking "I accept") is enough evidence that the parties recognized a contract was being for and would probably get over the "assent" pretty easily--even if there isn't the nobleness of a fully negotiated agreement.
Second, even if there were an assent problem, broadly declaring a contract void and unenforceable for that reason is really bad policy. That's far to strong a result and it would leave the everyone (including the purchaser) unprotected. I haven't done the research for you, but I'm sure that you can find really old common law cases that relied on lack of assent to deal with how to get a "meeting of the minds" without voiding the entire contract. They likely still would not reach your conclusion.
Third, it's not clear that there would be a failure of assent anyway. The test for assent is usually an objective one: would a reasonable person [usually a judge, sometimes a jury] looking at the acts of the party understand the parties to have reach an agreement WITHOUT reference to what the parties actually thought they agreed to. Hence the reason that acts (such as clicking 'I accept') matter in this situation. Laziness or lack of understanding doesn't help you here when you were presented with an opportunity to do so.
For these reasons, the question isn't usually "assent" ("meeting of the minds") it's one of notice.
Finally, and just food for thought, what happens if a court doesn't enforce EULAs as they are now? One result is that the terms are just moved elsewhere and somewhere more readable. This would certainly impose additional costs on bricks and mortar purchases (think rental car agreements for software purchases!). It also wouldn't change online sales where terms are frequently presented BEFORE a sale anyway. So the net result is a policy that benefits online sales, punishes regular purchasers, and changes nothing.
I'll feed the trolls. Here's the problem with your analysis.
First, and fortunately, courts are unwilling to reward ignorance or laziness since that just would make for REALLY bad policy. The fact that people don't read EULAs is not the point; most people don't read the laws either. Courts have been pretty clear that as long as (i) there's notice with a reasonable opportunity to reject and (ii) the provisions aren't wildly unfair, they're going to be binding.
Second, you've manifested your assent (*agreement*) in any number of ways: clicking a button (see E-SIGN or UCITA for the definition of "electronic signature"), by going ahead and performing (continuing to install despite notice), by paying for a product that tells you that there may be certain legal terms (I haven't looked closely at the windows packaging, but it's probably there somewhere), etc.
Finally, there are certain terms that people rely on, for example: the grant of right to use, warranties, and, though not in MS' case, the IP infringement indemnity.
As always, I would like to hear a constructive, coherent argument that EULAs--in general, and not in some fact specific situation--aren't contracts. Anyone can construct any type of "contract" that is going to be unenforceable, but that doesn't mean that all of them are.
Actually, they're setting a minimum amount of liability. It does say the "greater of... [your actual damages] up to the amount you paid [OR] $5.00". Generous, aren't they?
You can buy something from a store, take it home, and after you have purchased the item, the manufacturer of the product can hold usage of said product hostage until you "agree" to an EULA.
Let's be clear here. A contract proposed after the fact with no notice of terms prior to a transaction may well be unenforceable because of the lack of notice. Some courts, in enforcing EULAs without prior notice, have found that a EULA may nevertheless be enforceable if there is a meaningful way to reject the terms (e.g. return the software for your money back). This is not usually how smart software vendors are advised.
In a pragmatic way, courts recognize (and not just in the software context) that notice doesn't require EVERY term be printed on the outside of the box. Instead, courts usually require merely that the consumer be put on NOTICE that there are additional terms, that there's some mechanism to view those terms, and that there be some meaningful way to reject the terms later (e.g. a refund). Also, internet transactions make this situation easier, since you can actually present the terms BEFORE you purchase the software.
Importantly, this doesn't just affect software. Courts have been willing to enforce provisions printed in users manuals (no requirement to click I accept) of all sorts of consumer goods provided that there was some notice that those terms existed.
Frankly, this makes a lot of sense when you think about it in any number of contexts--not just software. Most business do not intend to assume unlimited liability (and most consumers don't expect that they would) in every type of transaction.
As to your other points, a court is not going to find duress. Duress would require some threat of physical or economic harm sufficient to provide the party asserting duress no practical choice. It's not enough that it is a take it or leave it proposition. This is highly unusual set of circumstances: think something tortious or criminal.
I'm not sure what a blanket contract is, but I assume you mean some form of contract of adhesion. However, this analysis basically gets you back to where we started: usually an analysis of notice and unconscionability.
Finally, and just to make this point, most software companies CAN and DO negotiate their software terms--Microsoft, Oracle and SAP a frequently the most reluctant. The problem is that most individuals don't have much in the way of leverage (plus, it makes little sense for them to engage in any legal review for one sale when the lawyer will cost more than that). However, if you're buying $100,000+ worth of software and buying software support and maintenance, then you had better have an attorney negotiating the terms. Among other things, most software companies under those circumstances are willing to increase the liabilities, add indemnities, and strike all around unfavorable choices of law or venue.
This is not very good legal analysis or advice. EULAs are far no "untested" (though, the same is not necessarily true for browsewrap agreements).
EULAs are very much enforceable and have definitely been held up in court. Like any contract, though, some have certainly been found to be unenforceable in their entirety or in part. Those that are denied enforceability have some other procedural or technical flaw, usually proper notice.
In addition, as between a company and a consumer, there are definitely some hurdles to enforcing certain provisions like arbitration, choice of law and choice of venue. These can frequently be much more unreasonable than a court is willing to stand. This may also be true with respect to a waiver of liability or consequential damages. That said, the issue isn't whether the EULA in and of itself is enforceable, but instead whether there is proper notice of the clauses or whether such clauses are unconscionable.
Also, despite what slashdotters like to think, EULAs almost certainly meet the requirements of contracts: offer ("take it or leave it"), acceptance (by signature or performance) and consideration (in exchange for the right to use the software at the price I'm selling it to you, you agree to these other terms).
I have never seen a coherent argument that would state a EULA was per se unenforceable. Indeed, I would doubt seriously that such an argument would pass the laugh test. Nevertheless, if you want to argue that there's no signature (a frequent comment), take a look at the definition of "electronic signature" in E-SIGN or UETA. In both cases, a "process" (think clicking "I accept") can be a signature. Finally, acceptance can also be shown by performance. Also, there's a great big body of case law that assumes acceptance of a contract where there is performance by both parties--notwithstanding the other requirements.
While IAAL, none of this is legal advice. Enforceability of a contract is very fact specific (see the guy who couldn't see the terms because his monitor wasn't working). If you have questions, definitely seek the advice of your own lawyer who will evaluate your situation under your own facts.
Just to be TOTALLY fair, most every software license includes a limitation on liability AND an exclusion of consequentials (GPL):
IN NO EVENT UNLESS REQUIRED BY APPLICABLE LAW OR AGREED TO IN WRITING WILL ANY COPYRIGHT HOLDER, OR ANY OTHER PARTY WHO MODIFIES AND/OR CONVEYS THE PROGRAM AS PERMITTED ABOVE, BE LIABLE TO YOU FOR DAMAGES, INCLUDING ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE PROGRAM (INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR DATA BEING RENDERED INACCURATE OR LOSSES SUSTAINED BY YOU OR THIRD PARTIES OR A FAILURE OF THE PROGRAM TO OPERATE WITH ANY OTHER PROGRAMS), EVEN IF SUCH HOLDER OR OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. *** If the disclaimer of warranty and limitation of liability provided above cannot be given local legal effect according to their terms, reviewing courts shall apply local law that most closely approximates an absolute waiver of all civil liability in connection with the Program, unless a warranty or assumption of liability accompanies a copy of the Program in return for a fee.
This makes a lot of sense since it makes almost no business sense to extend unlimited liability (or any multiple of actual fees paid) to software products. Most companies typically can't afford to insure users only paying $500 for software against most anything that could happen while using their software.
As an aside, a majority of states say that such a waiver with regards to gross negligent or willful misconduct would be unenforceable. And, there may be such an argument in this case--though, that's served with the caveat that THIS IS NOT LEGAL ADVICE.
Slashdot Mirror
Your questions don't t square with the story that's been told so far.
You have a professor who is a well respected in the area of computer architecture disclosing details of this idea to Intel many years before Intel actually started using the technology. You have an institution that attempted to license those rights before Intel started using the technology, but whose attempts were thwarted. That same institution's attempts to negotiate a license were again thwarted less than 5 years after Intel start producing chips with that technology.
And, besides, independent development IS NOT a defense to patent infringement (though it's a defense to copyright infringement). And, even if it were, access to the information would certainly undermine that defense.
It seems the Intel was really just spoiling for a fight.
First, federal law requires that inventions made with federal funds must either be commercialized by the inventing institution or given up to the government (the gov't can then decide not to take title and title reverts to the inventor). It's called Bayh-Dole. Allowing title to revert to the government or the inventor is not particularly good results. Well funded tech transfer offices are much better at getting technology to licensees than either the federal government or the inventor. Besides, the federal government gets a royalty-free license to use the technology for its own purposes, a nice benefit to the US government.
Second, in this case, WARF actually contributes significantly to both the University of Wisconsin Madison (a state school) and to the inventors, inventing laboratory and inventing department. You can read about the process here: http://warf.ws/inventors/index.jsp?cid=14&scid=40
Third, WARF has been at this for a very long time. They're a very sophisticated patenting and licensing entity. They have definitely thought this through. According to their website, they are also not in the business of patenting every idea that every professor discloses to them (they say 60% of disclosures, but who knows).
Furthermore, they're a great asset to those inventors without the means to pursue licensing and patent protection on their own. Inventors pay nothing up front for what is otherwise a very expensive, time consuming ordeal.
A quick view of the WARF website has a whole page on the royalty distribution: http://warf.ws/inventors/index.jsp?cid=14&scid=40
Of significant note:
You could at least get your complaints right.
I respond to the troll.
Look, a vast number of disputes don't occur because of the lawyer--though, admittedly, some do. A good lawyer is a value adder, and getting a lawyer up front can go a long way to avoiding a much more costly dispute down the road.
The only reason that people seem to "hate" lawyers is because they're usually brought in at the time that people are already fighting or there is already a dispute. Most lawyers aren't in the business of making disputes; they're in the business of resolving disputes for clients that are paying them. Again, the point of getting a lawyer up front is to avoid those later disputes.
Also, as I said, I have no problem with plain language drafting. In fact, I'd prefer that people use simpler language. The fact is, though, that using plain language can be difficult. As with anything, making something simple means knowing the issues the more legalistic language was crafted to avoid. In the posted example, it took me all of two minutes to spot a number of issues, and all we saw was a single paragraph.
I could come up with more: the paragraph only deals with the software, does that include documentation and source code? What are the terms of the delivery of that stuff (presumably if the software was owned by the Company, the developer probably shouldn't have a copy of it anywhere after the services were complete). What are the terms of under which the company can request that license? It says royalty free, but royalty free doesn't mean free? What if the developer sells it to a third party, does that license persist?
I have to admit, I rolled my eyes when I saw the text of your letter agreement. I hope that no one else uses it.
First, your agreement might fail if there were a dispute since there appears to be no consideration for the assignment of rights. There's not even the nominal $1 token-consideration (even if that would have worked). Without consideration there is no agreement; no agreement means no assignment of rights. That said, you could probably argue that your offer at the bottom would be parole evidence of consideration, but that's outside the four corners of your letter agreement. However, like most attempts, your letter agreement fails to get the business deal right and probably fails for that reason.
Second, from a writing perspective, it uses a funky tense and lacks timing. Is this the agreement or was the agreement sometime prior and this is just a follow up letter (this letter is confirmation). That's just sloppy. If this is just a confirmation, which terms would govern? And, when did the transfer actually occur?
Third, you make a very common mistake sometimes called "elegant variation." Is this an assignment [first sentence], a license [second sentence], or a sale (transfer of something tangible) [third sentence]? Those three things are not necessarily synonymous.
Finally, while I do agree that nothing fancy is necessary to effect a transfer, you haven't done it very well.
Well, I doubt very much that even your monkey example works.
The issue, really, is what you include within the set of acts that would constitute prior research.
I'm not sure how you know there was no predecessor in your example, or if its even a real example. However, there's a relatively obvious chain one could construct. For example, and contrary to your example, even a monkey probably knew that eating a potato fresh out of the ground wasn't pleasant so they started by dusting it off to get rid of dirt. But, that wasn't entirely clean. And, when the potato was left out in the rain, the potatoes were cleaner. Splashing them in rivers or puddles worked even better. And when one monkey realized that the ocean works too, you've got your salted potatoes.
Whether you include the process of cleaning to remove dirt in the chain of invention is really a definitional issue. Each step resulted in a better potato. It's true, in my example, that the addition of salt was somewhat accidental, but no less "incremental." Indeed, if you expanded the steps far enough, even getting a potato out of the ground involves some step monkey must have figured out.
I see things like this written all of the time on Slashdot. It usually doesn't come up in stories about tax, but usually ones about EULAs.
When you place an order for food, there is actually a contract. A valid contract requires: offer, acceptance, consideration and assent. Absent some extraordinary situation, the moment the restaurant starts making the food you've ordered, there's a contract. You're obligated to pay. Dine and dash is a sort of breach of contract. It's also conversion.
An "implied contract" is somewhat of a different beast. It's more of a legal fiction that prevents someone from knowingly obtaining the benefit of another's mistake. E.g. a court might imply a contract if you eat the $1000 meal meant for another table and then try to say that you're not going to pay for it because you only ordered a diet soda.
And, as it relates to taxes, a contract analogy is not a very good one. Lots of people don't pay taxes and yet get the benefits of the tax system. Moreover, a number of people pay more taxes than the value of the actual benefit received from them. There's also no way to reject the benefit since moving elsewhere is not usually a viable option--in a contract, this might be an example of duress.
Sure, you could patent a board game. It has to be the criteria for a patent, but otherwise, sure. And, many games are patented.
However, most games are also copyrighted and trademarked (as I'm sure scrabble is). Copyright will reach a particular expression of the scrabble game idea: instructions, board, board design, pieces, etc.
Trademark will reach the name and any names confusingly similar.
I'm sure that Hasbro is concerned about both copyright and trademark. Copyright is probably a weaker argument here, but it's very likely that scrabulous' board, colors, layout, etc. are nearly identical. Though, I've never played it, so I'm only guessing.
Trademark, however, seems much stronger. The two names are too close. And, worse yet, the developers were obviously trying to capitalize on the name Scrabble in order to get people to play their game. Cheap advertising--exactly the sort of thing TM was created to prevent. It's probably a lot more difficult to get players if they named their game "Square board word game" or some made up name. In fact, I'm sure that everyone reading "Scrabulous sued by Hasbro" immediately thought of Scrabble. It wouldn't be too difficult to show likelihood of confusion.
That's not clear at all from the article (I know I know... this is slashdot). The picture sure looks a lot like a slightly modified Ford Mustang. And even if it were true, making significant alterations to the car and nevertheless using the mark is one of the big possible exceptions to even using the name nominatively.
It's sold through Cafepress. Not exactly a niche. However, you're right, the question of which consumer market to survey is a good question, but saying that a certain group would be insulted is not the point. In fact, in goods like calendars, courts would probably not apply a discerning consumer test since it's unlikely to be a decision most consumers would waste a significant amount of brain power on--as compared to say the car itself. Courts have applied even low standards for consumer confusion to considerably more expensive goods.
Here's how they're different:
On the one hand you are selling the actual good (the car itself) that you legally acquired from Ford under the name that you purchased it. So an ad saying "Buy my Ford Mustang" is safe so long as it's a Ford Mustang. Even taking a picture of the Ford you're selling will likely be safe.
On the other hand, you're selling a different good (a calendar) using the mark owned by Ford.
As I've now said in a bunch of posts, the issues are: 1) was the use of the marks on the calendar a use in commerce; and 2) is the use likely to cause confusion.
The answer to the first question is very clearly yes--they are/were SELLING a calendar by exploiting the the Ford marks. In some sense, it doesn't make sense for them to do it any other way.
The second answer also seems to be likely "yes." A consumer picking up the calendar about Ford Mustangs might think that the goods originated with Ford or someone authorized to use.
I really need to just stop reading any I.P. posts that come across Slashdot. Most of the posts that are moderated up just get it all wrong.
Not true. Not unless you're using the photos of those cars in commerce as a trademark. Simply taking pictures doesn't infringe anyone's trademark. Taking picture of Ford Cars to sell a calendar about Ford Cars very well may.
First, what you're describing isn't an estoppel, it'd be a laches defense.
Second, nothing stops someone from using the name Ford or Ford Mustang nomatively. You don't have to refer to the company as "That car company with the blue oval logo that sells the pony car named after a wild horse."
Third, not every use is going to be unlicensed. Many of those hits are probably dealerships.
Fourth, to the used cars, remember the question is whether a consumer is likely to be confused as to the source of the product. If you're calling a ford mustang a ford mustang, you're probably safe. If you're trying to sell a Datsun as a mustang, you've got a different problem.
Finally, NONE of this has to do with the case here. Using Ford's marks to sell a calendar is VERY different than using Ford's marks to sell a Ford car that you was lawfully acquired.
You are certainly right that trademark laws were originally developed for consumer protection purposes (a shortcut for identifying source).
However, you're probably not right about the selling calendar thing. My guess is that Ford or its licensees have produced Ford Mustang calendars. So my guess is that use of the Mustang marks for calendars is probably a category of good which they are already in the business of exploiting. The same thing for just about every other type of merchandise: t-shirts, bumper stickers, etc.
Let's be careful about what we're talking about. People like the parent and the OP are mighty confused about their intellectual property law. A quick refresher:
Copyright = an original work of authorship fixed in a tangible medium of expression.
Trademark = any device that associates a good with the source of that good.
Ford has LOTS of trademarks when I search for "Mustang" at the PTO. Since a trademark could arguably cover the look of the Mustang (I did not go through the huge list), they could either have federal trademark protection in the look. Even if there weren't a federal mark, Ford probably has common law rights in a trademark for the look.
This, though, has NOTHING to do with the ownership of the photographs. The copyrights to the photographs will belong to the photographers. This does not mean that the copyright owner can use the photographs for whatever purpose they want. There may be other intervening laws (privacy, publicity, decency, trademark, etc.). By way of example, if I took a picture of a Gucci logo I would own the photograph (if it met the criteria for copyright), but I can't freely paste that picture on to a purse and claim a defense of "well I own copyright."
So the real question here is, is whether the use of Ford's trademark (perhaps even more than one) covering the Mustang infringed by the sale of the calendar. The test is whether such a use is likely to cause confusion as to the source of the calendar. And, frankly, it seems pretty clear that it could: if you saw a calendar, you'd probably think that either Ford or Ford's authorized licensee put out the calendar. So you have a trademark infringement. The only question then is whether there is fair use here, and I don't see it.
First, unless your father lives in the middle of nowhere, he doesn't need to buy the HD package from his satellite provider to use the HD features. A really crappy pair of bunny ears will suffice to get most of the "important" channels anyway. But, paying the extra $20 gets you lots of nice "other" channels.
Second, while football is nice, H-D programming looks so nice that I can't stand to watch regular television anymore. I was even somewhat surprised to notice real differences with things like the Simpsons.
Third, I have plenty of older DVDs that upconvert very nicely. They're not HD quality, but they are definitely better than on my standard TVs.
Finally, even if you don't buy an HDTV for the HD, if you want a flat-panel or something that's not a huge ugly beast, there's really no option. It boggles my mind that anyone purchases standard tvs for any reason any more. They're just so... big and ugly.
I would imagine the bigger problem isn't people relying directly on youtube for medical information. It's the fact that those videos on youtube can be linked from webpages and sites that look more authoritative and appear at the top of search results about things like "childhood vaccines" or "hpv vaccine side effects" etc.
As one of the authors of the JN article (look for my name backwards) let me be first to say that JN doesn't work as well in civil cases. It's true that a jury COULD do whatever they want, but a judge has the power to reverse the jury in civil cases Judgment notwithstanding the verdict and, assuming a judge doesn't grant the JNOV, appeal the verdict to a higher court.
// This is not legal advice.
The reason it works so well in criminal trials is because there is no JNOV. If the jury acquits, the prosecutor cannot get a JNOV or appeal the jury decision.
This is actually a more complex question.
First, even the most onerous EULAs have a warranty that looks something like this: "Licensor represents to you that the Software will perform substantially in accordance with the Documentation. LICENSOR HEREBY DISCLAIMS ALL OTHER WARRANTIES..." Therefore, you'd probably have a remedy.
Second, even if they didn't have that warranty, there may be a fraud issue. Fraud can invalidate a contract--including the limitation of liability.
Third, if there's not fraud, there could be mistake. Mistake may void a contract as well.
Finally, the limitation of liability is really meant to protect the software vendor from risks that they have not priced into the sale of software to you. Therefore, both parties will share the risk (though, disproportionately on you). As I said in another comment, a limitation of liability may not be enforceable if relates to a protected party's gross negligence or willful misconduct.
This standard probably wouldn't reach bad programming or bad design. If that were the case, a lot more software companies would need a lot more insurance. In fact, it would probably make OSS impossible.
First, most courts today state that the fundamentals of contract law are: offer, acceptance and consideration. While it is true, that "meeting of the minds" (assent) has historically been listed as one of those elements, you give it too much weight. Courts nowadays have basically disregarded it as a requirement of contract (See Mark Lemley's "Terms of Use" for a long list of citations). I bet that there are very few courts that wouldn't enforce a contract merely because someone didn't read it and didn't negotiate it. To a court, a manifestation of "assent" (such as clicking "I accept") is enough evidence that the parties recognized a contract was being for and would probably get over the "assent" pretty easily--even if there isn't the nobleness of a fully negotiated agreement.
Second, even if there were an assent problem, broadly declaring a contract void and unenforceable for that reason is really bad policy. That's far to strong a result and it would leave the everyone (including the purchaser) unprotected. I haven't done the research for you, but I'm sure that you can find really old common law cases that relied on lack of assent to deal with how to get a "meeting of the minds" without voiding the entire contract. They likely still would not reach your conclusion.
Third, it's not clear that there would be a failure of assent anyway. The test for assent is usually an objective one: would a reasonable person [usually a judge, sometimes a jury] looking at the acts of the party understand the parties to have reach an agreement WITHOUT reference to what the parties actually thought they agreed to. Hence the reason that acts (such as clicking 'I accept') matter in this situation. Laziness or lack of understanding doesn't help you here when you were presented with an opportunity to do so.
For these reasons, the question isn't usually "assent" ("meeting of the minds") it's one of notice.
Finally, and just food for thought, what happens if a court doesn't enforce EULAs as they are now? One result is that the terms are just moved elsewhere and somewhere more readable. This would certainly impose additional costs on bricks and mortar purchases (think rental car agreements for software purchases!). It also wouldn't change online sales where terms are frequently presented BEFORE a sale anyway. So the net result is a policy that benefits online sales, punishes regular purchasers, and changes nothing.
I'll feed the trolls. Here's the problem with your analysis.
First, and fortunately, courts are unwilling to reward ignorance or laziness since that just would make for REALLY bad policy. The fact that people don't read EULAs is not the point; most people don't read the laws either. Courts have been pretty clear that as long as (i) there's notice with a reasonable opportunity to reject and (ii) the provisions aren't wildly unfair, they're going to be binding.
Second, you've manifested your assent (*agreement*) in any number of ways: clicking a button (see E-SIGN or UCITA for the definition of "electronic signature"), by going ahead and performing (continuing to install despite notice), by paying for a product that tells you that there may be certain legal terms (I haven't looked closely at the windows packaging, but it's probably there somewhere), etc.
Finally, there are certain terms that people rely on, for example: the grant of right to use, warranties, and, though not in MS' case, the IP infringement indemnity.
As always, I would like to hear a constructive, coherent argument that EULAs--in general, and not in some fact specific situation--aren't contracts. Anyone can construct any type of "contract" that is going to be unenforceable, but that doesn't mean that all of them are.
Actually, they're setting a minimum amount of liability. It does say the "greater of... [your actual damages] up to the amount you paid [OR] $5.00". Generous, aren't they?
Let's be clear here. A contract proposed after the fact with no notice of terms prior to a transaction may well be unenforceable because of the lack of notice. Some courts, in enforcing EULAs without prior notice, have found that a EULA may nevertheless be enforceable if there is a meaningful way to reject the terms (e.g. return the software for your money back). This is not usually how smart software vendors are advised.
In a pragmatic way, courts recognize (and not just in the software context) that notice doesn't require EVERY term be printed on the outside of the box. Instead, courts usually require merely that the consumer be put on NOTICE that there are additional terms, that there's some mechanism to view those terms, and that there be some meaningful way to reject the terms later (e.g. a refund). Also, internet transactions make this situation easier, since you can actually present the terms BEFORE you purchase the software.
Importantly, this doesn't just affect software. Courts have been willing to enforce provisions printed in users manuals (no requirement to click I accept) of all sorts of consumer goods provided that there was some notice that those terms existed.
Frankly, this makes a lot of sense when you think about it in any number of contexts--not just software. Most business do not intend to assume unlimited liability (and most consumers don't expect that they would) in every type of transaction.
As to your other points, a court is not going to find duress. Duress would require some threat of physical or economic harm sufficient to provide the party asserting duress no practical choice. It's not enough that it is a take it or leave it proposition. This is highly unusual set of circumstances: think something tortious or criminal.
I'm not sure what a blanket contract is, but I assume you mean some form of contract of adhesion. However, this analysis basically gets you back to where we started: usually an analysis of notice and unconscionability.
Finally, and just to make this point, most software companies CAN and DO negotiate their software terms--Microsoft, Oracle and SAP a frequently the most reluctant. The problem is that most individuals don't have much in the way of leverage (plus, it makes little sense for them to engage in any legal review for one sale when the lawyer will cost more than that). However, if you're buying $100,000+ worth of software and buying software support and maintenance, then you had better have an attorney negotiating the terms. Among other things, most software companies under those circumstances are willing to increase the liabilities, add indemnities, and strike all around unfavorable choices of law or venue.
This is not very good legal analysis or advice. EULAs are far no "untested" (though, the same is not necessarily true for browsewrap agreements).
EULAs are very much enforceable and have definitely been held up in court. Like any contract, though, some have certainly been found to be unenforceable in their entirety or in part. Those that are denied enforceability have some other procedural or technical flaw, usually proper notice.
In addition, as between a company and a consumer, there are definitely some hurdles to enforcing certain provisions like arbitration, choice of law and choice of venue. These can frequently be much more unreasonable than a court is willing to stand. This may also be true with respect to a waiver of liability or consequential damages. That said, the issue isn't whether the EULA in and of itself is enforceable, but instead whether there is proper notice of the clauses or whether such clauses are unconscionable.
Also, despite what slashdotters like to think, EULAs almost certainly meet the requirements of contracts: offer ("take it or leave it"), acceptance (by signature or performance) and consideration (in exchange for the right to use the software at the price I'm selling it to you, you agree to these other terms).
I have never seen a coherent argument that would state a EULA was per se unenforceable. Indeed, I would doubt seriously that such an argument would pass the laugh test. Nevertheless, if you want to argue that there's no signature (a frequent comment), take a look at the definition of "electronic signature" in E-SIGN or UETA. In both cases, a "process" (think clicking "I accept") can be a signature. Finally, acceptance can also be shown by performance. Also, there's a great big body of case law that assumes acceptance of a contract where there is performance by both parties--notwithstanding the other requirements.
While IAAL, none of this is legal advice. Enforceability of a contract is very fact specific (see the guy who couldn't see the terms because his monitor wasn't working). If you have questions, definitely seek the advice of your own lawyer who will evaluate your situation under your own facts.
This makes a lot of sense since it makes almost no business sense to extend unlimited liability (or any multiple of actual fees paid) to software products. Most companies typically can't afford to insure users only paying $500 for software against most anything that could happen while using their software.
As an aside, a majority of states say that such a waiver with regards to gross negligent or willful misconduct would be unenforceable. And, there may be such an argument in this case--though, that's served with the caveat that THIS IS NOT LEGAL ADVICE.