Federal Courts of Appeal

1st Circuit

Teragram Corp. v. Marketwatch.com, Inc., 444 F.3d 1 (1st Cir. 2006) (Licensee's failure to pay annual license and support fees constituted the first material breach of the licensing contract because the licensee's messages by e-mail did not provide effective notice as required by the contract that software was not performing properly.)

2nd Circuit

3rd Circuit

Doebler's Pa. Hybrids, Inc. v. Doebler, 442 F.3d 812 (3d Cir. 2006) (Fact issue existed as to whether the mark had been abandoned through naked licensing because the nature of the parties' relationship (which included a high degree of interlocking ownership and control) may evidence sufficient quality control. Evidence existed that there may have been an express or implied licensing agreements.)

In re Prof'l Video Ass'n, Inc., 2006 WL 859042 (3rd Cir. 2006) (Licensing settlement agreement did not grant rights in an updated version of the software at issue; the agreement was not ambiguous in that PVA was only required to convey rights to that which it developed or acquired, not to convey any and all upgrades, updates, or new versions.)

Lowe v. Loud Records, 126 Fed.Appx 545 (3rd Cir. 2005) (Appellant's admission of license created an implied license precluding copyright infringement cause of action; award of attorney's fees was not an abuse of discretion by trial court.)

MDNet, Inc. v. Pharmacia Corp., 147 Fed.Appx. 239 (3rd Cir. 2005) (MDNet failed to show that an oral modification was intended to waive the requirement that amendments be made in writing because an allegation of implied waiver is not sufficient.)

Siemans Fin. Servs., Inc. v. Robert J. Combs Ins. Agency, Inc., 166 Fed.Appx. 612 (3rd Cir. 2006) (Parties did not form a contract through series of conversations because negotiations lacked sufficient detail, including failing to address who would be responsible for marketing brochure, when, where, and during what time period Siemens would pay commissions, and how liens, securities, and guarantees would be involved.)

4th Circuit

Aikens v. Microsoft Corp., 159 Fed. Appx. 471 (4th Cir. 2005) (Indirect purchaser rule precludes antitrust claim.)

Bowe Bell & Howe Co, v. Harris, 145 Fed. Appx. 401 (4th Cir. 2005) (Four factor test to determine whether injunction was an appropriate remedy in a plaintiff's claim for misappropriation of trade secret, trademark and copyright infringement, and breach of non competition and non disclosure agreements.)

Kloth v. Microsoft Corp., 444 F.3d 312 (4th Cir. 2006) (Indirect purchasers of Microsoft products from OEMs or retailers did not have standing to sue Microsoft because the purchasers bought at prices set by the OEMs, not Microsoft.)

5th Circuit

ASAP Paging Inc. v. Centurytel of San Marcos Inc., 137 Fed. Appx. 694 (5th Cir. 2005) (Allegation that a local telephone company was charging calls to a local pager service and ISP provider as long distance in scheme to harm competitor in the one-way inbound call capability market did not fall under the Aspen Skiing exception to the rule that refusal-to-deal claims are not actionable under the Sherman Act.)

Condrey v. Suntrust Bank of Georgia, 429 F.3d 556 (5th Cir. 2005) (Licensing agreement is unambiguous and fully integrated due to presence of integration clause. Court refused parol evidence to determine meaning of agreement and concluded doctrine of detrimental reliance did not apply; Plaintiff's conversion claim was rejected because no demand for return of property took place.)

Condrey v. Suntrust Bank of Georgia, 431 F.3d 191 (5th Cir. 2005) (SP was not liable for conversion of intangible asset.)

Lyrick Studios, Inc. v. Big Idea Prods., Inc., 420 F. 3d 388 (5th Cir. 2005) (Faxes sent between negotiating parties did not constitute valid transfer of copyright ownership under §204 of Copyright Act because no signed writing evidencing intent to enter into final agreement existed; licensee was not entitled to recover the total amount of attorney fees stipulated.)

6th Circuit

DaimlerChrysler Serv., North America, LLC v. Summit Nat'l, Inc., 144 Fed. Appx. 542 (6th Cir. 2005) (DaimlerChrysler breached Software Agreement by disclosing ALAS source code because they did not take reasonable steps to prevent software availability to third parties. DaimlerChrysler could not invoke 17 U.S.C. 117, which allows for the use of independent contractors in developing software, because they were a licensee and because whether the disclosure was copyright infringement was not relevant to whether DaimlerChrysler breached the agreement.)

IBM, Corp. v. Omnicare, Inc., 162 Fed. Appx. 432 (6th Cir. 2006) (Alleged breach of software conversion waived by continued performance; contract term requiring party in compliance to give notice to other party and allow a "reasonable opportunity" to cure before claiming breach was unclear and would be interpreted against the computer company, as the drafter of the contract.)

Mid-Michigan Computer Sys., Inc. v. Marc Glassman, Inc., 416 F.3d 505 (6th Cir. 2005) (Court upheld denial of remittitur because compensatory award of $2M was not "clearly excessive" given liquidated damages provision for $2M in contract governing access of licensor's source code.)

Stratienko v. Cordis Corp., 429 F.3d 592 (6th Cir. 2005) (Stratienko's trade secret claims must fail because he failed to show a similarity to permit an inference of use, and that the law of conversion does not extent to trade secrets.)

Vision Info. Servs., LLC v. C.I.R., 419 F.3d 554 (6th Cir. 2005) (Payments received under licensing agreement were taxable as ordinary income, and not as long-term capital gains, given the language of the agreement and the taxpayer's retained right to sell the same trade secret to other parties; unambiguous language revealed intent to license, not sell, trade secrets.)

7th Circuit

Confold Pacific, Inc. v. Polaris Ind., Inc., 433 F.3d 952 (7th Cir. 2006) (In light of undisputed extrinsic evidence used to interpret a "slight" ambiguity, a confidentiality agreement did not extend to the product design.)

Hency Transp., Inc. v. Chu, 430 F.3d 402 (7th Cir. 2005) (Corporation's claim of diversion of corporate opportunities and assets does not all within preemptive scope of Illinois Trade Secret Act; customer lists are not deemed trade secrets within preemptive scope of Act.)

Sutter Ins. Co. v. Applied Sys., Inc., 393 F.3d 722 (7th Cir. 2004) (Ambiguous damages clause may be resolved in light of commercial reasonableness, looking at the sophistication of buyer, buyer's intended uses for the product, and price paid for those intended uses.)

8th Circuit

Aviation Charter, Inc. v. Aviation Research Group, 416 F.3d 864 (8th Cir. 2005) (Aviation safety ratings were not defamatory.)

Mid-America Real Estate Co. v. Iowa Realty Co., Inc., 406 F.3d 969 (8th Cir. 2005) (Court dissolved preliminary injunction and remanded due to fact that plaintiff is likely to prevail on merits of breach of contract claim because the agreement applies to all listing information entered into the MLXchange software; plaintiff can not succeed on implied covenant claim as a matter of law based on lack of textual support in the contract, explaining that implied covenant of good faith and fair dealing can not create substantive terms that do not exist in the contract.)

Moses.com Sec., Inc. v. Comprehensive Software Sys., Inc., 406 F.3d 1052 (8th Cir. 2005) (Moses.com's misrepresentation claims failed because Comprehensive's press release, which stated that Southwest was converting to CSS software, was not made with the intent to deceive current CSS customers into thinking that the software was fully functioning; press release was not an express warranty to Moses.com because it was issued to public at large after Moses.com had already hired CSS.)

Schinzing v. Mid-States Stainless, Inc., 415 F.3d 807 (8th Cir. 2005) (Plaintiff may bring cause of action for breach of contract against defendant for failure to pay post-termination royalties on washers; Plaintiff can not collect royalties and has no contractual remedy for washers manufactured after termination of license agreement.)

9th Circuit

Altera Corp. v. Clear Logic, Inc., 424 F.3d 1079 (9th Cir. 2005) (Defendants "groupings of logic functions" and accompanying licensing agreements are protected by Semiconductor Chip Protection Act; Federal Copyright Act does not preempt state law claims concerning unauthorized use of the software's end-product and defense of copyright misuse can not be used to defend against such state law claims.)

Arizona Cartridge Remanufacturers Ass'n Inc. v. Lexmark Int'l Inc., 421 F.3d 981 (9th Cir. 2005) (Lexmark's restrictions on reuse of printer cartridges did not violate false advertising and unfair competition laws; defendant's use of a lock-out chip, which prevents consumers from having the cartridges remanufactured by a different company, was not beyond the scope of its patent.)

State of Idaho Potato Comm'n v. G&T Terminal Packaging, Inc., 425 F.3d 708 (9th Cir. 2005) (No-challenge provision in a certification mark licensing agreement was unenforceable after balancing public policy arguments under Lear.)

LGS Architects, Inc. v. Concordia Homes of Nevada, 434 F.3d 1150 (9th Cir. 2006) (Concordia exceeded the scope of the licensing agreement when it reused four architectural plans without paying the reuse fee provided for in the contract.)

Wall Data Inc. v. Los Angeles County Sheriff's Dept., 447 F.3d 769 (9th Cir. 2006) (Extra copies made by licensee did not qualify as fair use even though licensee never used more than maximum number of licenses at same time; copying did not constitute an "essential step" under 117, because licensee was not "owner" of software and copying was merely a matter of convenience, not necessity.)

10th Circuit

Bevill Co., Inc. v. Sprint/United Mgmt. Co., 154 Fed. Appx. 49 (10th Cir. 2005) (Language of Master Services Agreement between ISP and telephone services provider was ambiguous as to whether parties intended to permit telephone services provider to invoke a Termination for Convenience provision without following the Acceptance Procedures; court must resolve the ambiguity beyond the "four corners of the document.")

Flying J Inc. v. Comdata Network, Inc., 405 F.3d 821 (10th Cir. 2005) (Term "cleared" was ambiguous as used in a license agreement because the technical meaning and the dictionary meaning resulted in two different interpretations of the agreement. The court determined that the technical meaning controlled and that, after reviewing the extrinsic evidence, factual issues remained as to whether the licensing agreement provided for processing of TCH MasterCards at unaffiliated merchants through a dual-processing model.)

11th Circuit

Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359 (11th Cir. 2005) (Gulfstream's dispute resolution policy valid under the Federal Arbitration Act because policy satisfied both written agreement requirement and interstate commerce nexus requirement; dispute resolution policy agreement was viable contract under Georgia state contract law and not unconscionable.)

HGI Assocs., Inc. v. Wetmore Printing Co., 427 F.3d 867 (11th Cir. 2005) (Contract did not violate public policy because the agreement did not violate Microsoft's rights; copyright waiver doctrine was correctly use to estop appellants from bringing copyright claims.)

Maxcess, Inc. v. Lucent Techs., Inc., 433 F.3d 1337 (11th Cir. 2005) (Court upheld a two-year limitations period provided for in the purchase agreement because it was clear and unambiguous and therefore must be enforced.)

Schering-Plough Corp. v. FTC, 402 F.3d 1056 (11th Cir. 2005) (Schering's licensing agreements with Upsher did not amount to an "unreasonable" restraint of trade because the anti-competitive effects did not extend beyond the inherent monopoly power of a patent.)

University of Miami v. Intuitive Surgical, Inc., 166 Fed. Appx. 450 (11th Cir. 2006) (Seller was not contractually obligated to continue producing or upgrade robotic surgical equipment even though the contract provided that Miami would receive all free upgrades.)

Federal Circuit

Microstrategy Inc. v. Business Objects, S.A., 429 F.3d 1344 (Fed. Cir. 2005) (Court resolved conflict between trial court's interpretation of terms and a Virginia court's interpretation of terms in favor of the Virginia court's interpretation, holding that the contract terms were not ambiguous on their face.)

Storage Tech. Corp. v. Custom Hardware Eng'g & Consulting, Inc., 431 F.3d 1374 (Fed. Cir. 2005) (On denying rehearing, court reaffirmed that diagnotstic was intertwined with basic system.)

Ultra-Precision Mfg., Ltd., v. Ford Motor Co., 411 F.3d 1369 (Fed. Cir. 2005) (State unjust enrichment claim was preempted by federal law because state law provided for a royalty on an unpatented discovery after the plaintiff makes the discovery available to the public, and this type of law is precluded by the federal government's interest in promoting patent applications.)

D.C. Circuit

Polygram Holding, Inc. v. FTC, 416 F.3d 29 (D.C. Cir. 2005) (Antitrust; joint venture tested under an intermediate test.)

Sabre, Inc. v. Dept. of Transp., 429 F.3d 1113 (D.C. Cir. 2005) (Computer reservation system could be treated as ticket agent for regulatory purposes.)

Federal District Courts

AGFA Monotype Corp. v. Adobe Sys., Inc., 404 F.Supp.2d 1030 (N.D. Ill. 2005) (PDF program that allegedly permitted editing of documents using copyrighted fonts did not violate Section 1201 (a) of the DMCA because plaintiff failed to prove that its copyrighted TrueType Fonts were "effectively controlled by a technological measure, which has been circumvented."; PDF program did not violate 1201(b)(1) because no evidence existed that software was designed "primarily" to circumvent embedding bits.)

American Bar Ass'n v. FTC, 2005 430 F.3d 457 (D.C. Cir. 2005) (FTC acted unreasonably in treating law firms as financial institutions under GLB.)

Applera Corp. v. MJ Research Inc., 349 F.Supp.2d 314 (D. Conn. 2004) (Patent owner's insistence that seller of thermal cyclers take supplier's license, rather than end-user licenses, did not constitute improper exclusion from an essential facility.)

ASA Accugrade, Inc. v. American Numismatic Ass'n, 370 F.Supp.2d 213 (D. D.C. 2005) (Plaintiff failed to allege a market antitrust injury and monopoly power in the relvant market.)

Attig v. DRG, Inc., 2005 WL 730681 (E.D. Pa. 2005) (Nonexclusive license was necessary to effectuate an oral agreement that granted Defendant use of copyrighted website codes, where Defendant paid fees fro the plaintiff's website services.)

Bearing Distribs., Inc. v. Rockwell Automation, Inc., 2006 WL 1174279 (N.D. Ohio 2006) (slip opinion) (Court denied temporary retraining order that prohibited a parts manufacturer from terminating a distribution agreement due to Defendant's failure to comply with a 25% markup for products sold outside unauthorized locations.)

Big Dog Motorcycles, LLC v. Big Dog Holdings, Inc., 402 F.Supp.2d 1312 (D. Kan. 2005) (Continued use of mark did not constitute infringement; there was no confusion because of product and layout differences.)

Bray Int'l, Inc. v. Computer Assocs. Int'l, Inc., 2005 WL 3371875 (S.D. Tex. 2005) (Under Texas UCC, a contractual limitation of liability clause is enforceable, even if evidence of bad faith, willful dilatoriness, and/or repudiation exists.)

Catalogue Creatives, Inc. v. Pacific Spirit Corp., 2005 WL 1950231 (D. Or. 2005)(Plaintiff did not have authority to grant Defendant a sublicense as a matter of law to use copyrighted photographs but this did not render the contract fraudulent because court refused to support "the proposition that the recipient of an implied license may grant an implied sublicense by its conduct.")

Comcast of Illinois X, LLC v. Hightech Elecs., 2004 WL 1718522 (N.D. Ill. 2004) (Comcast, a satellite television provider, could bring a claim under DMCA, Section 1201 because they "effectively control access" to a protected work.)

Compuware Corp. v. Moody's Investors Servs., Inc., 371 F.Supp2d 898 (E.D. Mich. 2005) (Customer failed to establish that credit rating service breached contract by defamation because customer had opportunity to review the serve's pulbication of customer's credit rating.)

Condrey v. Suntrust Bank of Georgia, 429 F.2d 556 (5th Cir. 2005) (Licensing agreement was unambiguous and fully integrated; parol evidence was not allowed to determine the meaning of the agreement and the doctrine of detrimental reliance did not apply.)

Cook Biotech Inc. v. Acell, Inc., 2005 WL 1473892 (N.D. Ind. 2005) (Defendants owe no fiduciary duty to Plaintiff's based on mere contractual relations because Plaintiffs were unable to prove a fiduciary relationship arising from circumstances beyond the existing contractual relations.)

Coremetrics, Inc. v. Atomic Park.com LLC, 2005 WL 3310093 (N.D Cal. 2005) (Contractual term precluding liability for lost profits referred to indirect damages and did not bar Defendant's liability for direct lost profits.)

Cozza v. Network Assocs., Inc., 2005 WL 1377877 (D. Mass. 2005) (Terms "Scan Enhancement" and "product" were not ambiguous in light of wording of the contract.)

Cunningham v. Citigroup, 2005 WL 3454312 (D. N.J. 2005) (Arbitration agreement is not unconscionable because no undue costs were imposed on Plaintiffs and Agreement did not unreasonably exclude certain claims; anti-class action provision of the agreement did not render the agreement unconscionable.)

Dallal v. New York Times Co., 386 F.Supp.2d 319 (S.D.N.Y. 2005) (Claimed infringement of photos was barred by equitable estoppel.)

Digital Envoy, Inc. v. Google, Inc., 370 F.Supp.2d 1025 (N.D. Cal. 2005) (Fact issues remain as to whether the license agreement allowed Google to use Digital's technology in conjunction with third party websites through the "AdWords" program.)

Discovery Zone Inc. v. Pizza Hut Inc., 2004 WL 2346002 (D. Del. 2004) (Use of creditor's trademark during preference period consitituted receipt of new value by the debtor/licensee after creditor received previous payments on trademark license.)

FMC Corp. v. Control Solutions, Inc., 369 F.Supp.2d 539 (E.D. Pa. 2005) (A pesticide manufacturer's insistence that competitor pay for license if it wanted to copy manufacturer's copyrighted product label did not constitute misuse of the copyright because it was possible for the competitor to compete without verbatim copying.)

Frazier v. Layne Christensen Co., 370 F.Supp.2d 823 (W.D. Wisc. 2005) (Liability for patent inducement requires proof of actual infringement.)

FTC v. Trustsoft, Inc., 2005 WL 1523915 (S.D. Tex. 2005) (Deceptive act injunction regarding marketing, and privacy and security representations regarding spyware killer software.)

Gossett v. HBL, LLC, 2006 WL 1328757 (D.S. Cal. 2006) (Arbitration clause enforceable even though buyer did not get to read or sign the docment until after the "fall of the electronic hammer" becuase Ebay's Auction Terms provides that sales are not final until the buyer contacts the seller, pays 10% down, and completes all sale and title work.)

Hauck Mfg. Co. v. Astec Indus., Inc., 376 F. Supp.2d 808 (E.D. Tenn. 2005) (Liability for breach of confidentiality agreement but no misappropriation of trade secrets; finding breach of confidentiality agreement does not compel finding of misappropriation of trade secrets.)

Hugger-Mugger, L.L.C. v. Netsuite, Inc., 2005 WL 2206128 (D. Utah 2005) (Online customer was bound to the terms of a license agreement, which included a choice of forum clause that was incorporated by reference, and that the employer of the online customer was bound because the customer had ostensible authority.)

In re Hernandez, 285 B.R. 435 (Bankr. D. Ariz. 2002) (License is exclusive and not assignable based on facts that no consent was given by the licensor, as required by federal patent law, licensee failed to meet the hypotheticl test because the license was merely a change in form.)

J & D Sciences, Inc. v. Alphamet Pharms. Corp., 335 B.R. 791 (Bankr. M.D. Fla. 2006) (For purposes of a constructive fraudulent transfer claim, under Bankruptcy Code Section 548(a), the patent was tranferred on the date that assignment was recored with the USPTO.)

In re Microsoft Partner Program Litig., 2006 WL 1348390 (W.D. Wash. 2006) (Term "breaches of intellectual property rights" in a damages limitation clause was ambiguous because the term may be limited to copyright, trademark, or patent infringement cases, or it may include violations of software licensing agreements.)

Irwin Seating Corp. v. Int'l Bus. Machs. Corp., 2005 WL 1475390 (W.D. Mich. 2005) (Fully integrated contract between parties contained no express warranties; court declined to decide whether warranties of merchantability and fitness should be applied because court did ot know if UCC applied to contract as a sale of goods (IBM provided both consulting services and component parts).)

Madison River Mgmt. Co. v. Bus. Mgmt. Software Corp., 387 F.Supp.2d 521 (M.D.N.C. 2005) (Defendants must bring breach of contract claim, rather than copyright infringement claim, because payment term in question is a covenant and not a condition of the license; Maidon's copying of TCS database was not covered by section 117 of Copyright Act which allows exception to permit copying for essential step in utilization of license.)

Minebea Co., Ltd. v. Papst, 444 F.Supp.2d 68 (D.D.C. 2006) (Implied covenant of good faith and fair dealing in settlement agreement following termination of a joint venture did not preclude licensor from suing licensee's customers for infringement of patents listed in the settlement agreement because licensor unambiguoulsy disclaimed any intent to grant a license to the licensee's customers.)

Monotype Imaging, Inc. v. Bitstream, Inc., 376 F.Supp.2d 877 (N.D. Ill. 2005) (Bistream was not liable for contributory infringement because Monotype could not prove that Bitstream's licensees infringed Monotype's copyrighted and trademarked fonts and because culpable intent could not be imputed to Bistream under the Aimster factors; Monotype's DMCA claim failed because it failed to show that Bistream used Monotype's fonts.)

Monster Content, LLC v. Homes.com, Inc., 2005 WL 1522159 (N.D. Cal. 2005) (Although licensing agreement only provided for delivery of bulk data and not for free direct link to the data, Monster Content acquiesced; representative for Monster Content had apparent authority to authorize the modification to the agreement.)

NCR Corp. v. ATM Exchange, Inc., 2006 WL 1401635 (S.D. Ohio 2006) (First sale doctrine defense did not apply to software distributed subject to a license agreement because the doctrine only applies to true owners.)

NCS Person, Inc. v. Computer Info. Concepts, Inc., 2005 WL 1924432 (D. Colo. 2005) (Court granted preliminary injunction with respect to plaintiff's request that defendant deliver all State Requirements Code pursuant to contract terms but denied portion of injunction relating to other undelivered code and extension of non-compete period.)

Neal v. Elec. Arts, Inc., 374 F.Supp.2d 574 (W.D. Mich. 2005) (NFL player's contract with Tennessee Titans expressly granted Player's, Inc. the exclusive right to use his name, picture, photograph, and likeness Player's, Inc. transferred this right to defendant to use player's likeness in Madden NFL 2005; changing a player's likeness from African-American to Caucasian was not defamatory.)

Novell, Inc. v. Microsoft Corp., 2005 WL 1398643 (D. Md. 2005) (Novell had standing regarding claim that Microsoft violated antitrust laws because Novel products could have aided cross-platform competition.)

In re Microsoft Corp. Antitrust Litig., 2005 WL 1398643 (D. Md. 2005) (Novell had standing to sue Microsoft even though Novell did not compete in operating system market because Novell's office software was designed to compete with Microsoft's operating systems and evidence suggested that Microsoft was explicitly trying to "fend off that threat to its operating systems monopoly.")

Prudential Ins. Co. of Am. v. Prusky, 413 F.Supp.2d 489 (E.D. Pa. 2005) (No cause of action under E-sign for insurance company's refusal to accept electronic communications in doing business.)

Schultz v. AT&T Wireless Servs., Inc., 376 F.Supp.2d 685 (N.D. W.Va. 2005) (Arbitration agreement barring class action suit in standard form contract is not unconscionable; shrinkwrap contract treating performance as acceptance was valid and duly supported by consideration.)

SCO Group, Inc. v. Novell, Inc., 377 F.Supp.2d 1145 (D. Utah 2005) (Alleged transferee of all rights and interests in software copyrights adequately alleged malice against alleged transferor in slander of title claim, even though the alleged transferor claimed that its continuing assertions of ownership were priviledged.)

Sotelo v. DirectRevenue, LLC, 384 F.Supp.2d 1219 (N.D. Ill. 2005) (Terms linked by hyperlink was valid; fact question existed of whether notice was given.)

Soverain Software, LLC v. Amazon.com, Inc., 383 F.Supp.2d 904 (E.D. Tex. 2005) (Although Soverain personally complied with the marking statute by marking its Transact software, Soverain failed to provide constructive notice by requiring its licensees to mark their websites as its predecessor-in-interest, which the court held were required to be marked under the marking statute.)

Topps Co., Inc. v. Cadbury Stani, 380 F.Supp.2d 250 (S.D.N.Y. 2005) (Plaintiff could not recover punitive damages for breach of contract or fraudulent inducement claims as a matter of law; refusal of summary judgment on whether plaintiff could receive punitive damages and disgorgement of profits for trade secret misappropriation.)

Valeo Intellectual Prop., Inc. v. Data Depth Corp., 368 F.Supp.2d 1121 (W.D. Wash. 2005) (Licensee likely to prevail on its affirmative defense to a wrongful termination claim because licensee substituted its own tag for that of the licensor in an effort to promise itself at the licensor's expense.)

Valve Corp. v. Sierra Entm't, Inc., 431 F.Supp.2d 1091 (W.D. Wash. 2004) (Limitation of liability provision only applied to "special, incidental, consequential, or punitive damages," and thus general contract damages, such as lost profits, may be recovered.)

Wallace v. Free Software Found., Inc., 2005 WL 3239208 (S.D. Ind. 2005) (Plaintiff failed to allege an antitrust injury because the injury only affects him as a competitor and does not harm consumers specifically or competition in general.)

Waterloo Furniture Components, Ltd. v. Haworth, Inc., 402 F.Supp.2d 950 (N.D. Ill. 2005) ("Most favored nations" provision of contract, which provided that if licensor granted a license to a direct competitor at a higher rate then, licensee also got the higher rate, did not remain in effect after expiration of contract.)

State Courts

American Car Rental, Inc. v. Comm. of Consumer Prot., 869 A.2d 1198 (Conn. 2005) (Rental car agreement containing speeding fee of $150 for every occasion driver exceeds 79 mph for two minutes was too disproportionate to wear on car to be a liquidated damages clause; provision was a violation of the Connecticut Unfair Trade Practices Act because contrary to public policy.)

Discover Bank v. Superior Ct., 113 P.3d 1100 (Cal. 2005) (Waiver of class action arbitration in consumer contract of adhesion is unconscionable when used to insulate a party with superior bargaining position from liability of small claims; Class action waivers in arbitration agreements are not preempted by the Federal Arbitration Act.)

Hubbert v. Dell Corp., 835 N.E.2d 113 (Ill. App. Ct. 2005) (Plaintiffs were bound to the "Terms and Conditions of Sale," including an arbitration clause, even though the confirmation web page did not include an "I accept" box because the Terms were available by clicking on many different blue hyperlinks available on the website.)

Motorola, Inc. v. Amkor Tech., Inc., 849 A.2d 931 (Del. 2004) (Terms "license" and "assignment" were ambiguous and therefore parol evidence was necessary; Amkor argued that the plain meaning of those terms show that they are separate and distinct, and Motorola argued that a "license" is subsumed within an "assigment.")

Rogers v. Dell Computer Corp., 138 P.3d 826 (Okla. 2005) (Additional facts necessary to determine when conversations between Dell and Plaintiffs took place in order to establish offer and acceptance under 2-206(1). Timing is necessary to determine if "Terms and Conditions of Sale" was incorporated into contract at acceptance.)

Stenzel v. Dell, Inc., 870 A.2d. 133 (Me. 2005) (Although arbitration clause was presented in a shrinkwrap contract of adhesion and thus was procedurally unconscionable, the arbitration provision was not substantively unconscionable because the arbitration process did not effectively preclude them from obtaining relief.)

Threshold.TV, Inc. v. Monowise, Ltd., 2004 WL 2348553 (Cal. Ct. App. 2004) (Extrinsic evidence needed to determine whether the contract granted rights beyond those delineated in the Intellectual Property Rights Agreement that were included in the "Additional Exploitations" provision; court could not resolve the ambiguity on the face of the contract because rule of the last antecedent did not resolve the dispute.)

Wolf v. Superior Court, 130 Cal. Rptr. 2d 860 (Cal. Ct. App. 2003) (Studio did not have a fiduciary interest with the novelist that arose out of the royalty payment obligation; right to accounting was implied out of good faith, and the person in control of the records had the burden of proof on what royalties were actually owed.)

Foreign Courts

AOL Bertelsmann Online France v. UFC Que Choisir et autres, Cour. De Cassation (3/9/04) (Multiple terms of AOL's standard terms of use, including AOL's right to termiante upon their convenience and a provision that states that user's sole remedy in the evet of AOL' s breach is termination, were invalidated.)

Welte v. Fortinet UK, Ltd., Landgericht Muenchen 1, No. 21 0 7240/05 (4/12/05) (Court enjoined distribution of GPL software without compliance with GPL disclosure terms.)