UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
86 F.3d 1447 (1996)
JUDGES: Before COFFEY, FLAUM, and EASTERBROOK, Circuit Judges.
OPINIONBY: EASTERBROOK
OPINION: [*1448] EASTERBROOK, Circuit Judge. Must buyers of computer
software obey the terms of shrinkwrap licenses? The [*1449] district court
held not, for two reasons: first, they are not contracts because the licenses
are inside the box rather than printed on the outside; second, federal
law forbids enforcement even if the licenses are contracts. 908 F. Supp.
640 (W.D. Wis. 1996). The parties and numerous amici curiae have briefed
many other issues, but these are the only two that matter--and we disagree
with the district judge's conclusion on each. 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). Because no one argues that the terms of the license
at issue here are troublesome, we remand with instructions to enter judgment
for the plaintiff.
I
ProCD, the plaintiff, has compiled information from more than 3,000
telephone directories into a computer [**3] database. We may assume that
this database cannot be copyrighted, although it is more complex, contains
more information (nine-digit zip codes and census industrial codes), is
organized differently, and therefore is more original than the single alphabetical
directory at issue in Feist Publications, Inc. v. Rural Telephone Service
Co., 499 U.S. 340, 113 L. Ed. 2d 358, 111 S. Ct. 1282 (1991). See Paul
J. Heald, The Vices of Originality, 1991 Sup. Ct. Rev. 143, 160-68. ProCD
sells a version of the database, called SelectPhone (trademark), on CD-ROM
discs. (CD-ROM means "compact disc--read only memory." The "shrinkwrap
license" gets its name from the fact that retail software packages are
covered in plastic or cellophane "shrinkwrap," and some vendors, though
not ProCD, have written licenses that become effective as soon as the customer
tears the wrapping from the package. Vendors prefer "end user license,"
but we use the more common term.) A proprietary method of compressing the
data serves as effective encryption too. Customers decrypt and use the
data with the aid of an application program that ProCD has written. This
program, which is copyrighted, searches the database in response to users'
criteria (such as [**4] "find all people named Tatum in Tennessee, plus
all firms with 'Door Systems' in the corporate name"). The resulting lists
(or, as ProCD prefers, "listings") can be read and manipulated by other
software, such as word processing programs.
The database in SelectPhone (trademark) cost more than $10 million to
compile and is expensive to keep current. It is much more valuable to some
users than to others. The combination of names, addresses, and sic codes
enables manufacturers to compile lists of potential customers. Manufacturers
and retailers pay high prices to specialized information intermediaries
for such mailing lists; ProCD offers a potentially cheaper alternative.
People with nothing to sell could use the database as a substitute for
calling long distance information, or as a way to look up old friends who
have moved to unknown towns, or just as a electronic substitute for the
local phone book. ProCD decided to engage in price discrimination, selling
its database to the general public for personal use at a low price (approximately
$150 for the set of five discs) while selling information to the trade
for a higher price. It has adopted some intermediate strategies too: access
[**5] to the SelectPhone (trademark) database is available via the America
On-line service for the price America Online charges to its clients (approximately
$3 per hour), but this service has been tailored to be useful only to the
general public.
If ProCD had to recover all of its costs and make a profit by charging
a single price--that is, if it could not charge more to commercial users
than to the general public--it would have to raise the price substantially
over $150. The ensuing reduction in sales would harm consumers who value
the information at, say, $200. They get consumer surplus of $50 under the
current arrangement but would cease to buy if the price rose substantially.
If because of high elasticity of demand in the consumer segment of the
market the only way to make a profit turned out to be a price attractive
to commercial users alone, then all consumers would lose out--and so would
the commercial clients, who would have to pay more for the listings because
ProCD could not obtain any contribution toward costs from the consumer
market.
[*1450] To make price discrimination work, however, the seller must
be able to control arbitrage. An air carrier sells tickets for less to
vacationers [**6] than to business travelers, using advance purchase and
Saturday-night-stay requirements to distinguish the categories. A producer
of movies segments the market by time, releasing first to theaters, then
to pay-per-view services, next to the videotape and laserdisc market, and
finally to cable and commercial tv. Vendors of computer software have a
harder task. Anyone can walk into a retail store and buy a box. Customers
do not wear tags saying "commercial user" or "consumer user." Anyway, even
a commercial-user-detector at the door would not work, because a consumer
could buy the software and resell to a commercial user. That arbitrage
would break down the price discrimination and drive up the minimum price
at which ProCD would sell to anyone.
Instead of tinkering with the product and letting users sort themselves--for
example, furnishing current data at a high price that would be attractive
only to commercial customers, and two-year-old data at a low price--ProCD
turned to the institution of contract. Every box containing its consumer
product declares that the software comes with restrictions stated in an
enclosed license. This license, which is encoded on the CD-ROM disks as
well [**7] as printed in the manual, and which appears on a user's screen
every time the software runs, limits use of the application program and
listings to non-commercial purposes.
Matthew Zeidenberg bought a consumer package of SelectPhone (trademark)
in 1994 from a retail outlet in Madison, Wisconsin, but decided to ignore
the license. He formed Silken Mountain Web Services, Inc., to resell the
information in the SelectPhone (trademark) database. The corporation makes
the database available on the Internet to anyone willing to pay its price--which,
needless to say, is less than ProCD charges its commercial customers. Zeidenberg
has purchased two additional SelectPhone (trademark) packages, each with
an updated version of the database, and made the latest information available
over the World Wide Web, for a price, through his corporation. ProCD filed
this suit seeking an injunction against further dissemination that exceeds
the rights specified in the licenses (identical in each of the three packages
Zeidenberg purchased). The district court held the licenses ineffectual
because their terms do not appear on the outside of the packages. The court
added that the second and third licenses stand [**8] no different from
the first, even though they are identical, because they might have been
different, and a purchaser does not agree to--and cannot be bound by--terms
that were secret at the time of purchase. 908 F. Supp. at 654.
II
Following the district court, we treat the licenses as ordinary contracts
accompanying the sale of products, and therefore as governed by the common
law of contracts and the Uniform Commercial Code. Whether there are legal
differences between "contracts" and "licenses" (which may matter under
the copyright doctrine of first sale) is a subject for another day. See
Microsoft Corp. v. Harmony Computers & Electronics, Inc., 846 F. Supp.
208 (E.D. N.Y. 1994). Zeidenberg does not argue that Silken Mountain Web
Services is free of any restrictions that apply to Zeidenberg himself,
because any effort to treat the two parties as distinct would put Silken
Mountain behind the eight ball on ProCD's argument that copying the application
program onto its hard disk violates the copyright laws. Zeidenberg does
argue, and the district court held, that placing the package of software
on the shelf is an "offer," which the customer "accepts" by paying the
asking [**9] price and leaving the store with the goods. Peeters v. State,
154 Wis. 111, 142 N.W. 181 (1913). In Wisconsin, as elsewhere, a contract
includes only the terms on which the parties have agreed. One cannot agree
to hidden terms, the judge concluded. So far, so good--but one of the terms
to which Zeidenberg agreed by purchasing the software is that the transaction
was subject to a license. Zeidenberg's position therefore must be that
the printed terms on the outside of a box are the parties' contract--except
for printed terms that refer to or incorporate other terms. But why would
Wisconsin fetter the parties' choice in this [*1451] way? Vendors can put
the entire terms of a contract on the outside of a box only by using microscopic
type, removing other information that buyers might find more useful (such
as what the software does, and on which computers it works), or both. The
"Read Me" file included with most software, describing system requirements
and potential incompatibilities, may be equivalent to ten pages of type;
warranties and license restrictions take still more space. Notice on the
outside, terms on the inside, and a right to return the software for a
refund if the terms are [**10] unacceptable (a right that the license expressly
extends), may be a means of doing business valuable to buyers and sellers
alike. See E. Allan Farnsworth, 1 Farnsworth on Contracts § 4.26 (1990);
Restatement (2d) of Contracts § 211 comment a (1981) ("Standardization
of agreements serves many of the same functions as standardization of goods
and services; both are essential to a system of mass production and distribution.
Scarce and costly time and skill can be devoted to a class of transactions
rather than the details of individual transactions."). Doubtless a state
could forbid the use of standard contracts in the software business, but
we do not think that Wisconsin has done so.
Transactions in which the exchange of money precedes the communication
of detailed terms are common. Consider the purchase of insurance. The buyer
goes to an agent, who explains the essentials (amount of coverage, number
of years) and remits the premium to the home office, which sends back a
policy. On the district judge's understanding, the terms of the policy
are irrelevant because the insured paid before receiving them. Yet the
device of payment, often with a "binder" (so that the insurance [**11]
takes effect immediately even though the home office reserves the right
to withdraw coverage later), in advance of the policy, serves buyers' interests
by accelerating effectiveness and reducing transactions costs. Or consider
the purchase of an airline ticket. The traveler calls the carrier or an
agent, is quoted a price, reserves a seat, pays, and gets a ticket, in
that order. The ticket contains elaborate terms, which the traveler can
reject by canceling the reservation. To use the ticket is to accept the
terms, even terms that in retrospect are disadvantageous. See Carnival
Cruise Lines, Inc. v. Shute, 499 U.S. 585, 113 L. Ed. 2d 622, 111 S. Ct.
1522 (1991); see also Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer,
132 L. Ed. 2d 462, 115 S. Ct. 2322 (1995) (bills of lading). Just so with
a ticket to a concert. The back of the ticket states that the patron promises
not to record the concert; to attend is to agree. A theater that detects
a violation will confiscate the tape and escort the violator to the exit.
One could arrange things so that every concertgoer signs this promise before
forking over the money, but that cumbersome way of doing things not only
would lengthen queues and raise prices but also would scotch the [**12]
sale of tickets by phone or electronic data service.
Consumer goods work the same way. Someone who wants to buy a radio set
visits a store, pays, and walks out with a box. Inside the box is a leaflet
containing some terms, the most important of which usually is the warranty,
read for the first time in the comfort of home. By Zeidenberg's lights,
the warranty in the box is irrelevant; every consumer gets the standard
warranty implied by the UCC in the event the contract is silent; yet so
far as we are aware no state disregards warranties furnished with consumer
products. Drugs come with a list of ingredients on the outside and an elaborate
package insert on the inside. The package insert describes drug interactions,
contraindications, and other vital information--but, if Zeidenberg is right,
the purchaser need not read the package insert, because it is not part
of the contract.
Next consider the software industry itself. Only a minority of sales
take place over the counter, where there are boxes to peruse. A customer
pay place an order by phone in response to a line item in a catalog or
a review in a magazine. Much software is ordered over the Internet by purchasers
who have never [**13] seen a box. Increasingly software arrives by wire.
There is no box; there is only a stream of electrons, a collection of information
that includes data, an application program, instructions, many limitations
("MegaPixel 3.14159 cannot be used with Byte-Pusher 2.718"), and the terms
of [*1452] sale. The user purchases a serial number, which activates the
software's features. On Zeidenberg's arguments, these unboxed sales are
unfettered by terms--so the seller has made a broad warranty and must pay
consequential damages for any shortfalls in performance, two "promises"
that if taken seriously would drive prices through the ceiling or return
transactions to the horse-and-buggy age.
According to the district court, the UCC does not countenance the sequence
of money now, terms later. (Wisconsin's version of the UCC does not differ
from the Official Version in any material respect, so we use the regular
numbering system. Wis. Stat. § 402.201 corresponds to UCC § 2-201,
and other citations are easy to derive.) One of the court's reasons--that
by proposing as part of the draft Article 2B a new UCC § 2-2203 that
would explicitly validate standard-form user licenses, the American Law
Institute and [**14] the National Conference of Commissioners on Uniform
Laws have conceded the invalidity of shrinkwrap licenses under current
law, see 908 F. Supp. at 655-66--depends on a faulty inference. To propose
a change in a law's text is not necessarily to propose a change in the
law's effect. New words may be designed to fortify the current rule with
a more precise text that curtails uncertainty. To judge by the flux of
law review articles discussing shrinkwrap licenses, uncertainty is much
in need of reduction--although businesses seem to feel less uncertainty
than do scholars, for only three cases (other than ours) touch on the subject,
and none directly addresses it. See Step-Saver Data Systems, Inc. v. Wyse
Technology, 939 F.2d 91 (3d Cir. 1991); Vault Corp. v. Quaid Software Ltd.,
847 F.2d 255, 268-70 (5th Cir. 1988); Arizona Retail Systems, Inc. v. Software
Link, Inc., 831 F. Supp. 759 (D. Ariz. 1993). As their titles suggest,
these are not consumer transactions. Step-Saver is a battle-of-the-forms
case, in which the parties exchange incompatible forms and a court must
decide which prevails. See Northrop Corp. v. Litronic Industries, 29 F.3d
1173 (7th Cir. 1994) [**15] (Illinois law); Douglas G. Baird & Robert
Weisberg, Rules, Standards, and the Battle of the Forms: A Reassessment
of § 2-207, 68 Va. L. Rev. 1217, 1227-31 (1982). Our case has only
one form; UCC § 2-207 is irrelevant. Vault holds that Louisiana's
special shrinkwrap-license statute is preempted by federal law, a question
to which we return. And Arizona Retail Systems did not reach the question,
because the court found that the buyer knew the terms of the license before
purchasing the software.
What then does the current version of the UCC have to say? We think
that the place to start is § 2-204(1): "A contract for 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." A vendor,
as master of the offer, may invite acceptance by conduct, and may propose
limitations on the kind of conduct that constitutes acceptance. A buyer
may accept by performing the acts the vendor proposes to treat as acceptance.
And that is what happened. ProCD proposed a contract that a buyer would
accept by using the software after having an opportunity to read the license
at leisure. This Zeidenberg [**16] did. He had no choice, because the software
splashed the license on the screen and would not let him proceed without
indicating acceptance. So although the district judge was right to say
that a contract can be, and often is, formed simply by paying the price
and walking out of the store, the UCC permits contracts to be formed in
other ways. ProCD proposed such a different way, and without protest Zeidenberg
agreed. Ours is not a case in which a consumer opens a package to find
an insert saying "you owe us an extra $10,000" and the seller files suit
to collect. Any buyer finding such a demand can prevent formation of the
contract by returning the package, as can any consumer who concludes that
the terms of the license make the software worth less than the purchase
price. Nothing in the UCC requires a seller to maximize the buyer's net
gains.
Section 2-606, which defines "acceptance of goods", reinforces this
understanding. A buyer accepts goods under § 2-606(1)(b) when, after
an opportunity to inspect, he fails to make an effective rejection under
§ 2-602(1). ProCD extended an opportunity to reject if a buyer should
find the license terms [*1453] unsatisfactory; Zeidenberg inspected the
[**17] package, tried out the software, learned of the license, and did
not reject the goods. We refer to § 2-606 only to show that the opportunity
to return goods can be important; acceptance of an offer differs from acceptance
of goods after delivery, see Gillen v. Atalanta Systems, Inc., 997 F.2d
280, 284 n.1 (7th Cir. 1993); but the UCC consistently permits the parties
to structure their relations so that the buyer has a chance to make a final
decision after a detailed review.
Some portions of the UCC impose additional requirements on the way parties
agree on terms. A disclaimer of the implied warranty of merchantability
must be "conspicuous." UCC § 2-316(2), incorporating UCC § 1-201(10).
Promises to make firm offers, or to negate oral modifications, must be
"separately signed." UCC §§ 2-205, 2-209(2). These special provisos
reinforce the impression that, so far as the UCC is concerned, other terms
may be as inconspicuous as the forum-selection clause on the back of the
cruise ship ticket in Carnival Lines. Zeidenberg has not located any Wisconsin
case--for that matter, any case in any state--holding that under the UCC
the ordinary terms found in shrinkwrap licenses require [**18] any special
prominence, or otherwise are to be undercut rather than enforced. In the
end, the terms of the license are conceptually identical to the contents
of the package. Just as no court would dream of saying that SelectPhone
(trademark) must contain 3,100 phone books rather than 3,000, or must have
data no more than 30 days old, or must sell for $100 rather than $150--although
any of these changes would be welcomed by the customer, if all other things
were held constant--so, we believe, Wisconsin would not let the buyer pick
and choose among terms. Terms of use are no less a part of "the product"
than are the size of the database and the speed with which the software
compiles listings. Competition among vendors, not judicial revision of
a package's contents, is how consumers are protected in a market economy.
Digital Equipment Corp. v. Uniq Digital Technologies, Inc., 73 F.3d 756
(7th Cir. 1996). ProCD has rivals, which may elect to compete by offering
superior software, monthly updates, improved terms of use, lower price,
or a better compromise among these elements. As we stressed above, adjusting
terms in buyers' favor might help Matthew Zeidenberg today (he already
has [**19] the software) but would lead to a response, such as a higher
price, that might make consumers as a whole worse off.